International Handbook on Regulating Nanotechnologies
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International Handbook on Regulating Nanotechnologies

Edited by Graeme A. Hodge, Diana M. Bowman and Andrew D. Maynard

As scientists and technologists discover how to engineer matter at the nanoscale in increasingly sophisticated ways, conventional approaches to ensuring safe use are being brought into question. Nanotechnologies are challenging traditional regulatory regimes; but they are also prompting new thinking on developing and using emerging technologies safely. In this Handbook, leading international authors from industry, government, non-governmental organisations and academia examine the complex and often controversial regulatory challenges presented by nanotechnologies. Across several disciplinary boundaries, they explore how the future regulatory landscape may evolve. From the Europe Union to the United States, workplaces to personal products, and statutory instruments through to softer approaches, it is clear that considerable vigilance will be needed in governing these powerful and novel technologies. To succeed, society will need new thinking, new partnerships and new mechanisms to balance the benefits of these technologies against their possible downsides. Anything less will prompt cries of illegitimacy and potentially compromise a promising new realm of technology innovation.
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Chapter 18: Regulating Nanotechnology through Intellectual Property Rights

Gregory N. Mandel


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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