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Nanotechnology Innovation and the Patent Thicket: Which IP Policies Promote Growth?

T. Sabety
Sabety +associates, PLLC, US

patent policy, nanotechnology, Bayh-Dole, license, economic growth

Nanotechnology has attracted a significant amount of patenting activity in the past several years. Many commentators fear that a “patent thicket” has formed that will impede innovation and commercialization of nanotechnology – thereby defeating the goal of replicating the rapid economic growth of the information technology industry. In this article, technology lawyer Ted Sabety compares nanotechnology’s current intellectual property and funding policy context with that of early information technology and radio. He argues that nanotechnology now occupies a situation more like that of radio than early information technology – possibly resulting in expensive patent litigation battles similar to those that occurred in the radio industry during the early 20th century. In comparison, early information technology patents were widely licensed non-exclusively under anti-trust decrees or the technology itself was not considered patentable or copyrightable subject matter. Sabety concludes that the balance between strong and weak I.P. protection to maximize economic growth appears to require a dynamic policy where publicly funded foundational (upstream)I.P. are placed in a position similar to the position of seminal information technology innovations while later innovations retain stronger I.P. rights and exclusivity. Nanotechnology Law & Business, Vol. 1, Issue 3, Sept. 2004,; 15.2 Alb. L.J. Sci. & Tech --- (2005)

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