The Irrelevance of Nanotechnology Patents

Although scientists have for decades now had the ability to manipulate matter at the atomic level, we have yet to see the nanotechnological revolution that these scientists predicted would follow. Despite the years of effort and billions of dollars that have been invested into research and development thus far, nanotechnology has yielded surprisingly few end-user applications. A number of commentators have blamed this lack of progress on the Bayh-Dole Act and other changes to patent law, arguing that, although these laws are supposed to stimulate technological development, they have in fact had the exact opposite effect when it comes to nanotechnology. Because universities now own too many “upstream” patent rights with the potential to obstruct “downstream” development of usable applications, their argument goes, the Bayh-Dole Act has caused an unnecessary drag on nanotechnology development. This Article shows, however, that contrary to this common criticism, patents on university-based nanotechnology research are most often simply irrelevant. While nanotechnology applications have been slow to emerge, this Article shows that the latency in development is due not to patents but rather to the fact that nanotechnology is a science-based technology and as such faces various additional hurdles that far outweigh the potential effect of any upstream patenting by universities. Just the inherent technological difficulties alone of working in science-based fields makes development cycles in these fields unavoidably long. To make matter worse, science-based fields typically also face issues with tacit knowledge and the lack of widespread expertise as well as the “valley of death” and the difficulties of attracting investment in intermediate-stage development. Add to this mix constraints due to concerns about public health and safety along with limited access to proprietary materials and equipment and it is not difficult to understand why nanotechnology development has not advanced as quickly as some might have hoped. Thus, while nanotechnology and other science-based technologies may occasionally experience patent-related holdup problems, development in these fields would be more effectively addressed by looking instead at the multitude of other, nonpatent factors that pose well-recognized obstacles in such science-based technologies