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Nanotechnology Important features are 1. Nanotechnology involves research and technology development at the 1nm-to100nm range. 2. Nanotechnology creates and uses structures that have novel properties because of their small size. 3. Nanotechnology builds on the ability to control or manipulate at the atomic scale. Effect Of Surface Body- centered cubic crystal structure Ratio of bulk molecules to surface molecules L 1m 1 mm 1 µm 100 nm 1 nm* nb 8.5 x 1028 8.5 x 1019 8.5 x 1010 8.5 x 107 99 ns 1.2 x 1020 1.2 x 1014 1.2 x 108 1.2 x 106 56 ratio = nb /ns 7.3 x 108 7.3 x 105 7.3 x 102 72 0.77 * Calculated using unit cells Energy in Na bulk material CONTINUOUS (c) Electron in a box of length L Usually bulk properties dominate At nanoscale Surface effects dominate. Quantum effects come into play. Van der Waals forces become important. Gravitational effects can be ignored. Source: European Commission. Community Research. 2004. Nanotechnology. Innovation for tomorrow’s world. Source: Quantum Computing: “A short Course from Theory to Experiment, Joachim Stolze and Dieter Suter. Source: Quantum Computing. 2004. A Short Course from Theory to Experiment. Joachim Stoltze and Dieter Stuter. Single-walled Carbon Nanotube d d = 0.4nm - 10nm L=? L Lattice of covalently bonded carbon atoms Independent Claims 1. A transistor that uses a carbon nanotube ring as a semiconductor material, the carbon nanotube ring having semiconductor characteristics. 12. A transistor that uses a carbon nanotube ring as an electrode material, the carbon nanotube ring having conductivity or semiconductor characteristics. 18. A carbon nanotube ring having p-type semiconductor characteristics. 19. A semiconductor device in which a carbon nanotube ring having p-type semiconductor characteristics is placed on an n-type semiconductor substrate thereof. Disclosure Detailed disclosure of ‣ method to produce carbon nanotubes ‣ method to produce carbon nanotube rings from nanotubes ‣ method of fabricating transistor using nanotube ring Basis for fall-back positions on ring diameter. Nanotechnology in Electronics Alternatives for transistors Carbon nanotube transistors Single electron transistors (SET) Memory devices MRAM (various different approaches Phase change RAM Photonics Nano-electromechanical system (NEMS) Fuel cells Thermo-photovoltaics Quantum computers Software Investments Large investments Attracted more public funding than any other single technology 2003 5 to 6 Billion USD Source: Communication from the Commission. 2004. “Towards European Strategy for Nanotechnology”. IP Protection Patent System ‣ Nanotech vs .com wave Trade Secrets ‣ Processes Considerations for Patent Practitioner On practitioner level ‣ Technology emerging, technically complex and crossdisciplinary ‣ Practitioners not experienced ‣ Nomenclature still developing ‣ Lack of experience in working in multi-disciplinary teams ‣ Case law relating to other arts. At the Patent Offices ‣ Emerging technology, examiners not experienced yet ‣ Prior art collections still developing ‣ At least in the US, no nanotechnology examining group yet - possible delays - overly broad claims, at least initially. Invention vs discovery Distinction: discovery and invention, may become blurred Discovery: ‣ Carbon nanotube discovered in 1991 by Sumio Iijima Inventions: ‣ New methods to produce carbon nanotubes consistently and economically would be patentable ‣ Applications of carbon nanotubes would be patentable e.g. US 6,590,231B2 relating to “Transistor that uses carbon nanotube ring” UTILITY Definition and tests — matters of national law. In ZA, the term means “effective to produce the result aimed at or promised”. In the US, 35 USC 101, an applicant must: ‣ claim invention that is statutory subject matter; and ‣ show that the claimed invention is “useful” for some purpose, either explicitly or implicitly (M.P.E.P. Section 2107). Nanotechnology in its infancy — pioneering inventions Ensure at least one specific and credible utility is disclosed. NOVELTY Invention not anticipated by prior art. Tests for anticipation and what constitutes prior art — national laws. In the US, “A claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described in a single prior art reference”. (Verdegaal Bros., Inc. v Union Oil Co., 814 F.2d 628, 631, 2 USPQ 2d (BNA) 1051, 1053 (Fed Cir. 1987)). Differences in size/dimensions may be important. Inherency may be a problem. Inherency can only be applied if the alleged feature would necessarily and inherently follow. INVENTIVENESS / NON-OBVIOUSNESS Claiming something smaller — may invite an obviousness rejection. “Mere scaling……..… would not establish patentability…………”. (In re Rinehart, 531 F.2d 1048, 1053, 198 USPQ 143 (CCPA 1976)). However, may be patentable ‣ if small structure performs or functions differently; (In re Gardner v TEC Systems Inc., 725 F.2d 1338, 220 USPQ 777 (Fed.Cir. 1984)) ‣ if prior art fails to provide enabling method; (In re Hoeksema 158 USPQ 596 (CCPA 1968)). The known stalwarts: ‣ ‣ ‣ commercial success long-felt need; and unexpected results may also be relied upon. ENABLEMENT Specification should describe the invention: ‣ sufficiently clear and complete ‣ for invention to be carried out by a person of ordinary skill in the art ‣ from info known in the art ‣ without undue experimentation. Factors that are used in US to determine whether disclosure is enabling (In re Wands): ‣ the amount of discretion or guidance presented in the spec ‣ the quantity of experimentation necessary ‣ the presence or absence of working examples ‣ the nature of the invention ‣ the state of the prior art ‣ the relative skill of those in the art ‣ the predictability or unpredictability of the art, and ‣ the breadth of the claims. Problematic for nanotech inventions: infancy, crossdisciplines, nature, unpredictability and complexity of the technology. Extra care to include examples / embodiments, test data and adequate direction / guidance. In biotech, examiners and courts have used the enablement doctrine to narrow the scope of overly broad claims. All required information: in the specification. “Incorporation by reference” is not acceptable in the EU and JP. Person(s) of ordinary skill in the art currently ‣ often Ph.D graduates ‣ due to cross-disciplinary nature also group. Nanotechnology in South Africa (ZA) Substantial activity at universities, research institutions, private companies and mining houses. No formal nanotechnology strategy is in place yet. Political transformation, R&D investment progressively decreased and reached a turning point in 1997. R&D important for a country’s global competitiveness. ZA missed the .com wave – Government takes nanotechnology seriously and a ZA Nanotechnology Strategy is expected to be finalised this year. Basic nanotechnolgy research focussed on areas that are directly relevant, critical and strategic to ZA and the region. The main drivers will be To relieve poverty ‣ Water (membrane technology) ‣ Electricity (fuel cells) ‣ Health (drug carriers etc). Mineral benefication ‣ gold; and ‣ titanium. Human Resources Development Sources: 1. European Commission. Community Research. 2004. Nanotechnology. 2. Científica Ltd. 2003. 2nd edition. The Nanotechnology Opportunity Report. 3. European Commission. Community Research. 2004. Towards a European Strategy for Nanotechnology. 4. Koppikar, Vivek et al., 2004. Current Trends in Nanotech Patents: A View From Inside the Patent Office. Nanotechnology Law & Business, 1(1), Article 4. 5. Muenkel, Jonathan A. et al., Fitzpatrick Cella Harper & Scinto. Staking A Claim In The Nanoworld. 6. Tullis Terry K. 2004. Current Intellectual Property Issues in Nanotechnology. UCLA Journal of Law of Technology, J.L. & Tech. Notes 12. 7. Bastani B. & Fernandez D. Intellectual Property Rights in Nanotechnology. Available online: [www.iploft.com/Security(DK).pdf] 8. Halluin, Albert P. et al., 2003. Nanotechnology: The Importance Of Intellectual Property Rights In An Emerging Technology. Intellectual Property and nanotechnology. Tex Intellect Prop Law J, 11(3):220-657. Innovation for tomorrow’s world. Nanotechnology 9th OPEN FORUM November 2005 Presented by: Adelhart Krüger DM Kisch Inc South Africa