Nanotech patent wars?

A recent article by Charles Choi detailed a fear that the threat of patent infringement litigation might be deterring innovation in the area of nanotechnology. This theme is not dissimilar from arguments that the threat of patent infringement litigation is deterring innovation in the software field. Furthermore, it is not dissimilar from even earlier claims that the uncertainty in ownership of patent rights over buckyballs was deterring research in C60.

I strongly questioned the claims about patent uncertainty over buckminsterfullerene in an article in Intellectual Property Today. Further, the comments in the Choi article about "lack of diligence" and "flood of patents" don't fit the basic buckyball patent fact pattern, because the basic buckyball patent did NOT ISSUE in the United States. Additionally, the comments about "flood of patents" do bring up the Quillen/Webster/Harvard Law Review "97% grant rate" saga, which hopefully should be put to bed by now.

It is absolutely correct that people should investigate all the fullerene (or quantum dot, etc.) patents out there and formulate business strategy accordingly. If you have a patent lawyer who understands what's going on, you will probably do well. If not, hope you like rolling dice.

from UPI article by Charles Choi:

In talks over the past three months with more than 100 companies, Matthew Nordan, vice president of research for nanotechnology analyst firm Lux Research in New York said he has found a massive dogfight brewing over patents. "The lawsuits could fly like arrows," he said. "In the nightmare scenario, that could stall development for a very long time."

At the root of the problem is patent infringement.

"I'm hearing from (chief executive officers), 'I know of four or five companies infringing on my patents,'" Nordan said. "A number of nanotechnology companies have acquired every patent they can find around a specific nanomaterial, like a quantum dot or carbon nanotube. They growl a lot about their intellectual property position."

"Personally, I think the U.S. Patent and Trademark Office is completely overwhelmed, and a lot of patents make it through without the diligence they used to get," Clint Ballinger, CEO of Evident Technologies in Troy, N.Y., told UPI. "They got a flood of patents in the mid '90s to now, so it's interesting to everybody how many of these patents are really enforceable."

Howard Barnett, CEO of Southwest Nanotechnology, a carbon nanotube company in Norman, Okla., agreed with Nordan, saying it was "absolutely, unequivocally" likely these patent battles were going to happen.

"Nobody's making any money right now, so there's no particular reason to fight the battles yet," Barnett explained. "But a lot of people are coming out with patents, and a lot of claims are certainly overlapping, if not certainly conflicting. The fights are going to be brutal."

"Companies are waiting until somebody hits the $3 million or $4 million sales mark to sue the hell out of them and try to shut them down," Nordan added.

The most likely battles will take place over carbon nanotubes or quantum dots, he said.


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The following was of interest.

-->"Let's say you have Lancome or L'Oreal interested in using fullerenes as anti-oxidants -- a huge application for them, as they are far more anti-oxidant than vitamins at smaller volumes. But they will not want to touch fullerenes if they're afraid they'll be at the receiving end of a lawsuit," Nordan said.<--

Recall that recent research has shown buckminsterfullerene (C60) is cytotoxic at 20 parts per billion. It will be a while before you will find it in your cosmetic, and longer still before you find it in a vitamin.

For example, from Health Insurance Week (October 24, 2004):

-->The researchers postulate that cell death in the tests occurred via physical disruption of the cell membrane by oxygen radical species generated by the buckyballs.
Colvin and her colleagues emphasized that the study only fills in part of the puzzle regarding fullerene toxicity. For example, because cytotoxic studies look only at cells in culture, they don't tell scientists what happens inside the body, where cellular repair mechanisms, whole-organ and whole-body processes come into play.
"Cytotoxicity should not be confused with a full-fledged toxicological risk assessment," said Kevin Ausman, CBEN executive director and a coauthor of the paper. "Risk assessments take into account exposure rates, uptake mechanisms, transport within the body and much more. Most often, cytotoxicity studies are used as indicators of whether more extensive toxicological study is needed. Based on our results we think buckyballs should be studied in more detail, and we're already working to arrange additional studies."<--