William & Mary Business Law Review


Nanotechnology is a thriving new field of research. If even a fraction of the excitement surrounding the field proves to be true, there will be profound benefits in many aspects of our lives. Crucial to its development, however, will be the treatment of nanotechnology with respect to patents. This field has the unique potential to replicate existing machines and devices at a billionth of their size. In light of rulings that “mere scaling” of prior inventions does not create a patentable invention, problems with patentability might arise. This Note tackles this issue, considering the patentability requirements of novelty and non-obviousness, the normative foundations of patent law, and the legal considerations unique to nanotechnology. There is something fundamentally different about machines at this scale that justifies a categorical finding of novelty and non-obviousness over macroscale predecessors.