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58 Stan. L. Rev. 601 (2005-2006)
Patenting Nanotechnology

handle is hein.journals/stflr58 and id is 615 raw text is: PATENTING NANOTECHNOLOGY
Mark A. Lemley*
Universities and companies are rushing to the patent office in record
numbers to patent nanotechnology inventions. This rush to the patent office is so
significant that many law firms have established nanotechnology practice groups
and the U.S. Patent and Trademark Office has now created a new technology
class designed to track nanotechnology products. Three big differences between
the emerging science of nanotechnology and other inventions make the role of
patents more significant in this arena than elsewhere. First, this is almost the first
new field in a century in which the basic ideas are being patented at the outset. In
many of the most important fields of invention over the past century-computer
hardware, software, the Internet, even biotechnology-the basic building blocks
of the field were either unpatented or the patents were made available to all users
by government regulation. In others, patents were delayed by interferences for so
long that the industry developed free from their influence. In nanotechnology, by
contrast, companies and universities alike are patenting early and often. A
second factor distinguishing nanotechnology is its unique cross-industry
structure. Unlike other new industries, in which the patentees are largely actual
or at least potential participants in the market, a significant number of
nanotechnology patentees will own rights not just in the industry in which they
participate, but in other industries as well. This overlap may significantly affect
their incentives to license the patents. Finally, a large number of the basic
nanotechnology patents have been issued to universities, which have become far
more active in patenting in the last twenty-five years. While universities have no
direct incentive to restrict competition, their interests may or may not align with
the optimal implementation of building-block nanotechnology inventions. The
result is a nascent market in which a patent thicket is in theory a serious risk.
Whether it will prove a problem in practice depends in large part on how efficient
the licensing market turns out to be.
© 2005 Board of Trustees of the Leland Stanford Junior University; Mark A. Lemley.
* William H. Neukom Professor of Law, Stanford Law School; Director, Stanford
Program in Law, Science, and Technology; Of Counsel, Keker & Van Nest LLP.
Thanks to John Allison, Chris Cotropia, Rochelle Dreyfuss, Nathan Durrance, Hank
Greely, Rose Hagan, David Jaffer, Joseph Mallen, Greg Mandel, Michael Martin, Judge
Margaret McKeown, John Miller, Craig Nard, Matt Powers, Bhaven Sampat, Madhavi
Sunder, Hal Wegner, and participants at programs at Stanford Law School, the University of
San Diego School of Law, the U.C. Davis School of Law, and the Foresight Nanotech
Institute conference for their helpful comments, and to Michael Martin for research


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