Home > Journals > WMBLR > Vol. 9 (2017-2018) > Iss. 1 (2017)
William & Mary Business Law Review
Abstract
Nanotechnology—engineering at the scale of 1 to 100 nanometers—has the potential to transform medicine, computing, energy, agriculture, and consumer products. A central legal challenge is whether existing patents for macroscale devices should anticipate nanoscale reproductions of those devices when the original claims make no reference to size. This article examines the patentability requirements of utility, novelty, and non-obviousness in the context of extreme miniaturization, arguing that nanoscale devices should be presumed both novel and non-obvious relative to their macroscale predecessors. It highlights the fundamentally different physical forces operating at the nanoscale, the specialized expertise required for their design, and the impracticality of treating extreme downscaling as “mere scaling” under existing case law. Policy considerations—including avoiding overprotection, preventing a chilling effect on nanotechnology innovation, and reducing the “patent thicket” that has emerged in early nanotechnology development—further support this distinction. The article concludes that broad macroscale patents should not preclude nanoscale innovations, preserving incentives for research and commercialization in this emerging field.