Edited by Graeme A. Hodge, Diana M. Bowman and Andrew D. Maynard
Chapter 18: Regulating Nanotechnology through Intellectual Property Rights
Gregory N. Mandel1 18.1 INTRODUCTION Discussions of how to regulate emerging technologies routinely turn at some point to intellectual property rights, and particularly to patent law. The association between regulating technology and patent law may appear obvious at first glance. Patent law is the primary area of law concerning technology, and a patent grant is often an antecedent to the development and commercialization of a new technology. One might reason that the patent system’s existing role in technological development could be expanded to regulate technology in other respects as well. Patent law provides incentives for the development and commercialization of technology. Therefore, patent doctrine may be capable of incentivizing the development and commercialization of technology consistent with particular regulatory goals. In the context of nanotechnology, this might include protecting society from any potentially problematic health, safety, environmental, or other detrimental impacts. This chapter addresses whether the patent system can be used to regulate such nanotechnology risks. Though the link between patent law and technological regulation may appear superficially attractive, in reality patent law provides a poor means to regulate technology. Past attempts to utilize patents in this regard have been largely unsuccessful. Further, patent systems already face great challenges handling nascent and interdisciplinary nanotechnologies consistent with their traditional core mission. These difficulties make it likely that any attempt to protect against uncertain human health and environmental risks, a task no patent system has ever successfully accomplished, is likely to be particularly futile in the nanotechnology context. This chapter opens with...
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