Knowledge & News

The nanotechnology revolution: getting the intellectual property right

8 March 2018

The internet of things (IoT) is set to revolutionise our working and personal lives, bringing ever more devices into an intelligent, global network that promises everything from kettles that learn your daily routine to cities which optimise the flow of traffic and people. Nanotechnology will be key to this, allowing for the proliferation of technologies such as smart surfaces that can be applied to almost anything and nanoparticles which will underpin next generation electronic devices.
Given the global race to be at the forefront of these developments, it’s encouraging to see investments being made in the UK’s nanotechnology sector, such as that announced by the University of Surrey recently. The new hub at the University of Surrey aims to bring together researchers to boost the UK’s smart device revolution and radically reducing the cost of manufacturing IoT devices. This and other initiatives, such as the recent opening of high specification facilities for the fabrication of optoelectronic devices at the Cambridge Graphene Centre, shows there is significant momentum behind graphene research in the UK.  Emerging technologies rely upon those with the vision to invest in them so initiatives such as this are to be welcomed.
Unlocking success in the nanotechnology market requires more than just ideas and investments however; also key is intellectual property (IP). For many businesses, IP is assumed to consist simply of filing patents and trade marks and its wider potential is easily ignored. Developing a robust IP strategy however can be key to the success or failure of a business, especially one that deals with an emerging technology such as nanotech.
As with any significant new technology, nanotechnology raises important IP questions. How to classify these new technologies for example, and will the reproduction of products developed at the atomic scale meet current IP requirements such as novelty and inventive step?
While there are difficult questions to be answered, the fact that some branches of nanotechnology (for example, Graphene) are highly emergent also presents significant opportunities. If the next generation of nanotech gurus can get the IP right then the limited availability of ‘prior art’ in the field – pre-existing knowledge that might limit the scope of a patent in a more established industry – can allow broad monopoly protection covering not only the patentee’s business, but also valid, relevant monopolies in ancillary, non-competing industries. Such opportunities can form the basis of lucrative licensing based revenue streams with little risk posed to the patentee’s original business.
The flip side of this is the potential for overlapping patents and litigation. As such, well drafted IP will be key to protecting innovation in this space and investing in it early on can bring significant rewards down the line.
So, what is IP?
IP comes in many forms ranging from the well-known such as patents, trade marks and copyright, to the less well-known such as know-how, database rights and integrated circuit topography rights. Some of these IP rights exist automatically and for free. Others will need to be registered and the process of doing so can be complicated, requiring a patentee to get to the ‘essence’ of their innovation. Getting the right balance of IP will very much depend on each businesses individual needs.
Patents will likely be the top of the IP agenda for those working within the nanotech field. Patents are used to protect novel devices and technologies. Capturing the essence of what makes an invention novel however, and translating that into a successful patent application can be challenging. Wider than this however, formulating a world-wide patent filing strategy will also be necessary. This will raise key questions about where to file and when and the answers here will very much depend on an individual business. Getting good IP advice early on however will ensure that the right course is charted.  
Design rights too will be crucial for protecting the particular shape or appearance of future devices which rely on nanotechnology. Similarly, for a simple integrated circuit design, integrated circuit topography rights could be considered in certain countries.
Another key area of IP for enterprises in any field is trade marks. Trade marks are widely used to help protect the identities and values of countless products and companies in every conceivable sector of the economy. Trade marks define a business in the public space, giving credibility to its products and embodying its reputation. Even high-tech products such as smartphones, which are designed and built upon patents, have significant trade marks which are crucial to their success. Technologies that nanotech gives rise to will similarly be defined in the public realm by their trade marks, and the reputation those marks symbolise – ensuring they are protected will be vital. 
Then there is data, what many are calling the ‘new oil’. Database rights are one of the lesser known forms of IP but can be highly valuable and could apply if there has been a "substantial investment" in obtaining, verifying or presenting the contents of a database. Given the wide ranging applicability of nanotechnology in the fields of medicine and computing, protecting and exploiting the IP inherent in data could be a key consideration for businesses emerging in this space.
There is a lot to consider for businesses looking to shape the future of the UK’s nanotech and IoT industry. Getting the IP right will ensure that it is the innovators who are rewarded, rather than the imitators. If entrepreneurs and companies build IP into business strategy early on, they will be well placed to capitalise on the enormous potential promised by nanotech, and put the UK at the forefront of this emerging field.
This article first appeared in Internet of Business.


Mash-Hud Iqbal

Mash-Hud Iqbal Partner Cambridge (UK) Chartered (UK) and European Patent Attorney

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