Nanotechnology and the Law
by Lawrence A. Berglas

How will intellectual property law concepts apply to uniqueness and originality and how will commercial law concepts apply to manufacturing, distribution and transactions in a world where anything can be assembled or replicated from molecular components?

“To promote the progress of science and useful arts, by securing for limited times authors and inventors the exclusive right to their respective writings and discoveries;” U.S. Constitution, Article 1, Section 8.

For those who think of the law as a body of dusty, aging concepts, one only has to look forward into the not-too-distant future and imagine the legal implications of nanotechnology. The legal concept of “discoveries,” however envisioned by the framers of the United States Constitution, will be tested to the core by the promise of a new body of complex technologies. Though the Uniform Commercial Code is adapting to address the electronic transactions of today via the Internet, so will it have to readapt in the face of a new technology few of us barely understand.

Nanotechnology (which include the developing fields of nanoscience and nanoengineering), is defined in the dictionary as “the science and technology of building electronic circuits and devices from single atoms and molecules. ” A nanometer is a measurement of a molecule, one billionth of a meter. The capability to manipulate molecules and atoms to create computers and machines that in turn can create other computers, machines and useful objects presents fresh and complex legal implications for the world’s societies.

The study of nanotechnology and its implementation is taken seriously by government, scientific and educational institutions at the highest levels. It is an area busy with ideas.

Consider that in January of 2000 at the California Institute of Technology, President Clinton announced the National Nanotechnology Initiative:

“My budget supports a major new National Nanotechnology Initiative, worth $500 million. … the ability to manipulate matter at the atomic and molecular level. Imagine the possibilities: materials with ten times the strength of steel and only a small fraction of the weight — shrinking all the information housed at the Library of Congress into a device the size of a sugar cube — detecting cancerous tumors when they are only a few cells in size. Some of our research goals may take 20 or more years to achieve, but that is precisely why there is an important role for the federal government.” President William J. Clinton

Consider the The National Nanofabrication Users Network, a partnership of Stanford, Harvard, Penn State, Cornell, Howard, and UC Santa Barbara universities that exists to provide “users with access to some of the most sophisticated nanofabrication technologies in the world with facilities open to all users from academia, government, and industry.”

Consider The Foresight Institute whose mission as a nonprofit educational organization is “to help prepare society for anticipated advanced technologies.” The Foresight Institute’s “primary focus is on molecular nanotechnology: the coming ability to build materials and products with atomic precision. The development of this technology has broad implications for the future of our civilization.”

Consider the comments of Jim Von Ehr who is the founder, President, and Chief Executive Officer of Zyvex LLC , which bills itself as “the first nanotechnology development company.” During a telephone conversation with Mr. Von Ehr from his company’s headquarters in Texas, this writer wondered aloud how one will contemplate, or validate, an object’s intellectual property, if all of the mechanical and aesthetic elements of any object can be manipulated at will into a tangible form from basic elemental building blocks. Mr. Von Ehr suggested that the objects themselves “become intellectual property creations.”

Object making devices known as assemblers, noted Mr. Von Ehr, may be “connected to the Internet and individuals could download designs.” Imagine, as we discussed, being able to download not only the designs of any object but of the aesthetic qualities of the object as well. In theory, one could download the artistic design for drapery or sheets, changing the designs at will.

Certainly there are more significant applications for nanotechnology than mere superficial design. Medical applications spring to mind. Where commercial ownership and applications are to be found, nevertheless, “nanolaw” cannot be far behind.

At this point, one’s imagination can only play with the legal implications raised by nanotechnology. Let’s consider an intellectual property scenario, for instance, and think of the current online music distribution dispute involving Napster, a dispute mixing simple music appreciation issues with business motive and profit, access, and copyright protection ownership and protections issues. Online distribution of creative content such as music makes it easily accessible. Control of access is seen by some as a “Berlin Wall” to knock down and by others as essential to maintain appropriate rights and profit inuring to creative effort and the business of distribution.

If technological advances permit the building of objects from their basic elements rather than carving them out of larger pieces of substance such as metal or wood, then distribution issues are created. If, as Mr. von Ehr suggested, designs could be dispersed over the Internet, how will object creators protect their intellectual property rights in the objects? How will such commercial transactions be regulated and by whom? Objects may become no different than the musical compositions that are the hot potatoes in the Napster dispute.

According to the United States Patent and Trademark Office and applicable law, design patents “provide for the granting of design patents to any person who has invented any new and nonobvious ornamental design for an article of manufacture. The design patent protects only the appearance of an article, but not its structural or functional features.” According to the United States Copyright Office and applicable law, copyright protects original works of authorship that are fixed in a tangible form of expression. Copyrightable works include, for example, among other works, sculptural, musical, and architectural works.

With the use of sophisticated nanofabrication techniques one could easily contemplate an architectural work imbued in its basic elements with original sound, sculptural and other aesthetic characteristics. Under intellectual property laws current or imagined, such an object or its characteristics separately may find design patent or copyright protection. Taking this to another level is the notion that the basic design formula of the work may be distributable over the Internet (a la MP3 and Napster). Objects may be replicated or reconstituted. Similar to “burning your own CD” but on a far more complex level, devices may exist for us to create, shape and change at will our own objects based on someone else’s expertise and creativity.

When the unique and ubiqutous collide, aspects of ownership and control, as well as aspects of creativity and use, blur. Competing interests are compressed into tight quarters. How will societies respond to fundamental changes in technology and commerce brought on by nanoscience and nanoengineering?

Years from now it will be apparent in the developing body of nanolaw.

Some websites of interest on the subject of nanotechnology:

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