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Nanotechnology And Challenges In Patenting Nanotechnology In India

Nanotechnology is one of the emerging technology towering expectations in an extensive area affecting our daily life. It is a science operating at micro scoping scale. It uses the size of a nanoscale which is between 1 and 100 nanometers. To put it into perspective, that's smaller than a bacterium and close to the size of a single atom. Commercialization of the products of this technology will help humankind in an extraordinary manner. Like in medical science, it can be used in diagnostic tools and curing ill cells from the inside. From this more powerful electronic items can be made and also new material can be created.

Two main ways of applying nanotechnology
In the top-down approach, in this, we make the structures smaller to get it at the nanometric scale.

The bottom-up approach, in this element at the nanoscale, is picked and set up for the formation of some variety of matter or mechanism.

Emerging technology in the world

Nanotechnology can be seen in consumer products like cosmetics and sunscreen. The use of Nanoscale Zinc oxide particles makes the lotion clear and enables it to leave no visible trace. Stain and grime-repellent cloths are made by using this nanotechnology. Also, car manufacturers. use nanocomposite particles in car parts and sports equipment to give durability and strength. it serves a variety of applications it can be used in biomarkers that light up cancer cells.

Nanotechnology has grown exceptionally in the previous 20 years. The nanotech market has established growth in the US by 2015. This leads to an upsurge in nanotech-related patent applications worldwide.

Size matters
Size is crucial in the field of nanotechnology. It brings a number of questions with it in determining the validity and enforceability of nanotechnology patents. Like whether "nanoscale" is a sufficient term to include in a patent claim? Whether the existing patent examination practices to determine the patentability are sufficient to scrutinize the nanoscale inventions, difficulties in assessing the novelty, how to resolve issues under existing patent law, etc.

The US Patent Office, European PTO, and Japan PTO have each sought to resolve this issue by restricting nanotechnology inventions restrict to a length scale of not more than 100nms The USPTO and EPO have designated nanotechnology with their own class designation: class 977 and B82Y, respectively.

Issues with Nanotechnology:
  1. Environment - these are extremely small particles that can create pollution in the environment.
  2. Security - nanoparticles can be easily used in devices to take videos or can be used as drones for attack.
  3. Equity - to create nanotechnology products, developing and underdeveloped countries do not have sufficient funds.
  4. Ethical - nanotechnology can be used to enhance human capabilities in a dramatic way which may be dangerous.

Issues in India
  1. There is no regulatory body in India.
  2. Not much researches and studies are available on toxicological studies of nanoparticles.
  3. The unavailability of facilities requires research and study of nanotechnology.
  4. The outdated method of research.

Patenting Criteria for Nanotechnology Invention

To obtain a Patent in Nanotechnology following requisites must be fulfilled:
  1. The intended invention must be novel:
    Simply novelty means the invention must be different from all published products, and techniques. but here the main concern is whether a known invention or structure at an atomic scale will fulfill the novelty requirement and whether it will include inventive steps. Generally, the little overlap is sufficient to pull down the novelty but exceptions are liberally applied to nanoscale inventions.
  2. It must be non-obvious:
    A technology is regarded as non-obvious if it gives unexpected results. Nanotechnology is evolving and covers a broader scientific area, and it is a difficult task to identify the prior art in an emerging technology. In this, there is a perceived risk of overlapping patents.
  3. It should have an industrial application:
    Sometimes the use of an invention may not be seen or known at the time of origin. There is a threat that the patent may be denied due to a lack of utility.

Challenges in Patenting of Nanotechnology Invention in India

An initial challenge for patent analysts is to decide how to obtain a patent that is derived from the discovery of inherent properties of materials. Only developing a smaller size or dimension of a well-recognized structure would not be deemed to be patentable, there must have some additional utility or novelty.
  • Section 3(b) of the Indian Patent Act 1970, renders nano biotech inventions non-patentable on moral grounds. This section is a barrier to nanobiotechnology-based patenting because it is assumed that nanotoxicity will be caused by the use of nanoparticles. Also, these inventions have shown more environmental damage due to the high permeation ability of the nanoparticles to get absorbed into the bodies of humans which result in nanotoxicity. To fulfill the requisites of section 3(b), nanobiotechnology invention should be examined in respect of environmental jurisprudence. Article 21 of the Indian Constitution is inclusive in nature and includes the right to live in a healthy environment.
  • Section 3(d) makes nanotech inventions nonpatentable on the grounds of Novelty. According to this section, there is vagueness in the "particle size" being included in the non-patentable subject matter. In the case of nanobiotechnology, the newness of technology is obtained from the reduction in size. The primary ambiguity is the absence of a universal definition of nanobiotechnology. Here the word "nano" covers inventions that are 100nm in size or smaller. The Pharma industry is the most beneficiary section of nanobiotechnology-aided research. There is an insufficiency of standards for determining the efficacy and quantification of improvement of efficacy in India. Under Indian patent law, the invention of nanotech will not be patented unless the size of the particle differs in its properties or showed enhanced efficacy. The patentability of drugs revolves around the reduction in the size of the particles to guarantee better efficacy, such violations with provision 3(d) are likely to occur.
  • Utility requirement.
    This requirement is crucial but it is not easy to determine the impact of an external factor on products born out of technology. The inoperability of such products may render them non-patentable.
  • Article 27 of the TRIPS Agreement prevails in every member country. This article explains that an invention must have novelty, inventive steps, and industrial application.
Nanotechnology basically deals with nano scales inventions that are between 1 and 100 nanometers. This technology can bring revolutionary changes in our society both positively as well as adversely. Nanoparticles, due to their smaller size have been proven to be more effective and water-soluble and steady tools in drug delivery as compared to the normal routes of the Drug Administration. For many years pharmaceutical sciences used nanoparticles to lessen the toxicity of drugs.

Apart from its benefits, there is a debate on the environmental issue that it will harm our environment. Some provisions like sections 3(d) and 3(b) of the Indian Patent Act 1970 render the nanotech inventions nonpatentable. In simple Indian rule is lacking in providing patents for nanotechnology inventions.

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