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The emergent field of nanotechnology (NT) is currently very active worldwide with respect to
intellectual property rights (IPR), especially patents, with both developed and
developing countries joining in the nano-patents race. With the emergence of
any new technology, nanotechnology creates opportunities as well as challenges
in adapting the patent regime to its particular context. There is some
consensus that patenting NT innovations poses more problems than other
technologies, owing to their multi-disciplinary character, cross-sectoral
applications, broad claims as well as difficulties in fulfilling the
patentability criteria of novelty, non-obviousness and industrial application.
This is aggravated by the lack of a standardized terminology which impedes easy
identification of nano-patents and also the fact that patent offices may not be
well-equipped to handle nanotechnology.
These problems are likely to be compounded for developing and least
developed countries, which irrespective of their state of technological
advancement, and capacity of the domestic regime, are obliged to confer IPR in
the new technology.
paper seeks to examine the challenges which patenting of NT entails for the
patent regimes of nations and how these could be addressed. It relies on a
study of the patent regimes and case laws of other countries, namely, the United States to draw lessons for India. The low
volume of NT patent applications and grants at the Indian Patent Office and
lack of Indian case laws on the subject make the discussion anticipatory and suggestive
in nature. The paper finally arrives at certain recommendations, to help
reconcile the need to incentivize innovation in the new technology, with the
imperative of ensuring that the public interest is served and access to the
patented knowledge is not hindered.