Broad Concerns about Nanotechnology Patents: Symptoms and Diagnosis

Jost, Dannie; Cottier, Thomas (June 2012). Broad Concerns about Nanotechnology Patents: Symptoms and Diagnosis (NCCR Trade Working Paper 2012/13). Bern: NCCR Trade Regulation

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We discuss the concerns that the patenting activity in the new nanotechnologies could blur the line between what is considered a discovery and what can be considered as an invention. We find that the nature of nanotechnology products, research, and the development agendas in science and engineering fields that include biomimetics pose a challenge to the present practice of including chemicals as eligible patent subject matter. After revisiting the historical development of patent law and noting its divergence from the developments in science and technology, we introduce the distinction between simple and complex machines as these relate to chemistry and nanotechnology. This distinction poses the question of what is the logical category of inventions that fall within patentable subject matter given that patent law was conceived to cover simple machines, not complex ones.

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