Patentability of nanotechnology inventions : does it mark a shift in patent law's normative orientation?

• DOI: 10.10520/EJC177231
• Author: Ramohapi Elliot Shale
• Pages: 157-170
• Published date: 01 January 2013
• Date: 01 January 2013

PATENTABILITY OF NANOTECHNOLOGY

INVENTIONS: DOES IT MARK A SHIFT IN

PATENT LAW’S NORMATIVE

ORIENTATION?

Ramohapi Elliot Shale

I. Introduction

It is commonly believed that small sizes do not matter, but in the

field of nanotechnology, the smallest size of matter is all that

matters. Nanotechnology “refers to a set of techniques used to

manipulate,”1 image, measure, and model matter at “dimensions

[roughly] between… 1 and 100 nano-meters.”2 These dimensions

are otherwise known as nano-scale.3 At this length scale, the

physical, chemical and biological properties of matter such as

conductivity, magnetism, elasticity, reactivity, quantum mechanics,

melting temperature and colour may change in unusual and

unexpected ways.4 This unique phenomenon enables

nanotechnologists to understand and control matter at the nano-

B.A Law (N.U.L); LLB (N.U.L); PGD In Labour Law (U.C.T.); LLM (Wits); LLM

(Harvard).

1ETC Group, The Little Big Down: A Small Introduction to Nano-scale

Technologies 2 (June, 2004) available at www.ctcgroup.org.

2National Science and Technology Council, The National Nanotechnology

Initiative: Strategic Plan 5 (December, 2007) available at www.nano.gov (nano-

meter is one-billionth of a meter).

3Id.

4See, e.g., Donald C. Maclurcan, Nanotechnology and Developing Countries Part 1:

What Possibilities? 2 (September, 2005) available at

www.azonano.com/Details.asp?ArticleID=1428 ; Independent Working Group for

the Prime Minister’s Science, Engineering and Innovation Council (PMSEIC),

Nanotechnology: Enabling Technologies for Australian Innovative Industries 2

(March 11, 2005) (“these properties may differ in important ways from the

properties of bulk materials and single atoms or molecules”); David S. Almeling,

Patenting Nanotechnology: Problems with Utility Requirement 2004 STAN. TECH.

L. REV. N1 available at http://stlr.stanford.edu/STLR/Articles/04_STLR_N1 at

para. 18