Applicability of Intellectual Property Rights on Nanotechnology & Its Relevance in the Indian Context

4th August, 2022 - 11:13 am Categories: Intellectual Property 0 Comments

The evolution of technology has occurred over many years and will continue in the future. The world’s dynamic has shifted away from computers the size of a large room and toward nanoscale technology. This is known as nanotechnology, and it involves the study and manipulation of matter with dimensions of 100 m or less. Nanotechnology is frequently recognized as a technology of the future. The motto is shifting from “ever higher, ever wider” to “ever smaller, ever faster.” Nanotechnology grants access to the realm of the tiniest things, bringing with it the greatest issues, such as patenting and regulation. Nanotechnology necessitates an expansion of all views, including the existing rules governing its operational regions. To encourage research and development in the field, innovators will require robust intellectual property protection, particularly in the form of patents.

IPR facilitates the management of funds, time, capital, and effort by the creator of an intellectual concept; as a result, IPR facilitates the profitable development of a domain by encouraging trade and industry. In order to advance their careers, academic scientists must publish articles on novel concepts. Academic entrepreneurship can be enhanced by participating in the transfer of knowledge from academic institutions to industrial businesses. In addition, these patents contain significantly more useful information than other published studies. Therefore, expanding and exploiting patent writing may be advantageous to scientific research. Appropriate intellectual property rights (IPR) policies and approachable technology transfer personnel are crucial for reducing required time. Patents enhance the economies and reputations of academic institutions, as well as the reputations of scholars. As a result, it is evident that intellectual property may play a significant role in commercializing and advancing nanotechnology, despite the fact that India’s intellectual property ecosystem is less developed than that of other nations.

Despite the existence of programmes such as Nano Mission, which provides critical funding to competent groups (preferably from a group of institutions) to conduct very focused nanoscience research and develop nanotechnology-based applications aimed at delivering breakthroughs in Nano S&T and applications in a concerted manner, as shown in the table below, India had only 54 patents in Nanotechnology as of 2019, compared to 4666 patents in the United States.

Issues plaguing the Indian Regime

In India, a product or procedure without an industrial application is ineligible for a patent.  For nanoscale inventions, however, the clause seems somewhat difficult.

Legislation and precedents reveal that India applies the ‘substantial usefulness’ standard. “substantial utility” denotes “real-world application.” In nanotechnology patents, strict adherence to the phrase ‘capable of being used in an industry’ creates a crisis. Nanotechnology is a “unpredictable” art in which substantial differences between laboratory and real-world results are likely. In a laboratory, tests are conducted in a controlled atmosphere, making it simple to identify external influences. In the actual world, extrinsic influences can influence test findings, preventing them from meeting patentability requirements.

Due to assumptions about nanotoxicity, Section 3(b) of the Indian Patent Act is a barrier to nanobiotechnology-based patenting. Nano biotechnology inventions damage to the environment, and due to the high permeation ability of nanoparticles, nanoparticles may enter human bodies and cause nanotoxicity. Further, according to section 3(d), there is ambiguity regarding whether a particle size qualifies as patentable subject matter. The term “nano” refers to inventions that are 100 nm or smaller in size. In many instances, a nanomaterial may be a combination of various particles or innovations, or a nanoparticle of an existing material, with no discernible difference in its properties or industrial applications. The invention may not meet the Section 3(d) “standard efficacy” requirement. In India, there is no standard for determining the effectiveness and qualifying the advancement of efficacy.

The Need for Immediate Reform due to the boost in the nanotech sector

Currently, neither the Indian Patent Act nor the TRIPS agreement, which in fact promotes the protection of intellectual property across all sectors of science, have any provisions, guidelines, or laws pertaining to the regulation of this technology. This gap between the technology and its patenting could be ascribed to a lack of awareness and comprehension of the technology’s characteristics.

By amending the Indian Patent Act, one of the possible answers to the challenge of patenting nanotechnology inventions can be implemented. Legislators must design a method for recognizing the field of nanotechnology and develop a comprehensive plan for nanotechnology and patenting nanotechnology inventions. Since nanotechnology encompasses numerous scientific disciplines, establishing multiple inspections by a team of examiners from various disciplines rather than a single examiner would aid in the comprehension of the claims. In addition, a separate database comparable to the database for traditional information might be built for nanotechnology. Patents on nanotechnology require a separate classification, which requires a policy decision. These early actions will undoubtedly promote research and innovation in the field of nanotechnology, hence fostering the growth of the Indian patenting system.

Conclusion

Nanotechnology is reinventing intellectual property rights and posing patentability obstacles, which poses significant threats to the development of the new technology. It seems inevitable that various variants and different layers of open and closed intellectual property will be compelled to cohabit. However, as nanotechnology is the need of the hour and the prospective of science and technological progress, laws must encourage greater innovative thinking, parallel research and innovation, the elimination of patent obstacles, and accelerated product design. The need of the hour is neither strict laws nor lenient regulations, but rather a mechanism that considers the needs of the long term and the possibilities of research and innovation in a tremendously hopeful technology that will help shape the future of humanity.

The Indian patent law is insufficient to address the challenges presented by nanotechnology patents inside and outside the patent office. In the Indian Patent regime, the exclusion of legislative framework or patent office regulations regarding the level of implementation or explanation of patentability requirements, meanings of nanotech terms, assurance of patent term, attempting to control upstream patenting and licensing, and inclusive prior art or nanotech classification creates numerous obstacles.

Nanotechnology inventions and patenting in India are still in their infancy. In the next ten years, science is anticipated to be the dominant field. The development of nanotechnology is essential for India’s science and technology progressions of its fundamental social needs.

Author: Meghna Sherman – student of Symbiosis Law School (Pune), in case of any queries please contact/write back to us via email chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.