Innovation and Nanotechnology: Converging Technologies And The End of Intellectual Property

Image of Innovation and Nanotechnology: Converging Technologies And The End of Intellectual Property
Author(s): 
Release Date: 
August 14, 2011
Publisher/Imprint: 
Bloomsbury Academic
Pages: 
256
Reviewed by: 

“The premise and prediction of Innovation and Nanotechnology is that in the utopian future nanotechnology will end intellectual property law by making physical objects just like digital data, reducing replication and distribution costs to zero, eliminating both the possibility of profit and rationale for legal monopoly. Given the premise, the book’s greatest weaknesses are not on legal theory but on the science of nanotechnology.”

Sir Harry Kroto wrote the foreword to Innovation and Nanotechnology. Sir Harry was part of the 1996 Nobel Prize-winning team including Robert Curl and Richard Smiley for the discovery of C60 (Buckminsterfullerene). The foreword raised the bar on expectations for this book pretty high; however, the remainder of the book, although strong on intellectual property (IP) law, is exceedingly light on the science of nanotechnology. And though the author does make many points on IP theory and practice, he runs out of steam, repeats himself, and wanders. Innovation and Nanotechnology has the feel of an essay that hasn’t quite survived the stretching needed to turn it into book length.

David Koepsell begins by making the claim that Intellectual Property (IP) law in the U.S. is not just flawed but harmful, illogical, unnecessary, and an impediment to innovation.
Although every patent becomes immediately profitable for the patent attorney who files, only two to six percent ever earn back their costs to the patent owners (typically large corporations and wealthy investors).

The book continues with wildly optimistic claims about the future of nanotechnology. Not only will nanotechnology bring new forms of innovation, fabrication, and manufacturing, not only will nanotechnology liberate creativity in ways previously thought impossible, but nanotechnology will alter economics forever by eliminating both material scarcity and IP law—doing for physical objects what digital copying has done for digital media.

The author’s belief in the future of nanotechnology comes from extending what can be done today to an extreme. There are many different grassroots “maker” movements today including home-lab biofabrication (See the previously nyjb reviewed book, Biopunk, by Marcus Wolhlsen), open design, desktop manufacturing and 3D printing. The point of makers movements are to make manufacture of artifacts simpler and less costly. But none of these makers movements involve nanotechnology.

Although 3D printing result might in near term IP legal conflict (see for example http://www.instructables.com/id/How-to-repair-a-Bugaboo-Pram-with-3D-Pri...), and might someday do for real world objects what computers do for digital data, a state-of-the-art 3D printer is still a long ways away from a nanoscale 3D printer, and further yet from low cost self-replicating replicators, let alone nanoscale robots making complex objects (like computers, cars, basically anything anyone might desire out of a heterogeneous mix of raw materials). Not to mention autonomous nanobots combating diseases, parasites, viruses, and cancer. Or reducing costs to zero. That is not science, my friend. That is science fiction.

Many references in Innovation and Nanotechnology are available online and worth a look, especially Richard Feynman’s prescient 1959 lecture, “There’s plenty of room at the bottom.” Among the sites with web presence actively involved in open design and manufacture referenced are Microfab (www.microfab.com), Fab Lab (fab.cba.mit.edu), Fab@Home (www.fabathome.com), and a site for desktop 3D printing RepRap (reprap.org).

There also are more than 800 commercial nanotechnology products available today, as indicated by both the author and www.nanotech-now.com. Investigating further, these nanotech products appear to be part of the normal progression of material science. That is, nanowares are being used as new, improved, stronger, and lower cost components of conventional products. For example nanotech materials are being used in filtration and pollution control, for stain repellent clothing and as components in automotive manufacturing. Nanotech materials in these cases are all in manufacturing, not nanotech robots as tools or manufacturer.

Nanotech materials used in conventional ways is not anywhere near the author’s dream of eliminating scarcity. That dream presumably requires many more decades of research and development. As to whether there will be physical impossibilities along the way raises scientific controversy, and here the author treads lightly. A curious reader will certainly want to investigate deeper. The article “Six Challenges for Molecular Technology” by Richard Jones (http://www.softmachines.org/wordpress/?p=175) is repeatedly referenced in Innovation and Nanotechnology and definitely worth reading. Similarly, Richard Smiley (one of the inventors of C60) expresses his disagreement with the founder of the nanotech movement K. Eric Drexler, and this disagreement may be found in NANOTECHNOLOGY: Drexler and Smalley Make the Case For and Against “Molecular Assemblers’’ by Rudy Baum (http://pubs.acs.org/cen/coverstory/8148/8148counterpoint.html).

The author provides the ties between nanotechnology in IP law starting with a potted history of craft and artifact. Trades acquire guilds and trade associations to keep the craft of manufacture secret, to create monopolies and recover the costs of new technologies. To support industry, patent and copyright laws were created as state sanctioned secrets, initially as part of the 18th century industrial revolution but still vital to industry today.

The author identifies the differences in goals between science and industry. Science seeks to uncover the laws of nature to the benefit of all, while industry seeks to apply knowledge primarily to generate profit. Science works best with open disclosure that leads to greater science while industry encourages secrets that lead to greater control.

Intellectual Property (IP) is the term for a legally enforced monopoly that causes artificial scarcity for a limited period of time. The theory of justice behind IP depends on an ethical stance that ideas can be owned and that mental labor is comparable to manual labor. The (perceived) injustice in having a novel idea that another uses may be compared to building a house into which a squatter moves. Under current IP law ideas may not be patented or copyrighted, only artifacts and expressions.

Intellectual property law has three basic forms:
1. Protecting something by keep it secret–The trade secret.
2. Protecting physical utilitarian artifacts by registration—The patent.
3. Protecting aesthetic expressions by registration—The copyright.

IP, whether enforced by patent or copyright addresses artifacts and expressions, not underlying ideas. Products of nature, mathematics, and ideas as ideas do not fall under IP law, and although ideas are free, the corresponding artifacts and expressions may not be. Although you can’t patent the idea of a chair, you may get a patent for a particular style of chair. Similarly while one may copyright a particular work of fiction another may freely write about the same idea.

The legal bright line is to not come too close between idea and artifact. The $20 million dollar question is determining how close you can get or how far can you keep others away. One example that highlights a patent that blurs this line is the software patent over the clicking of a mouse. Called the One-Click patent, it covers the idea of clicking a mouse to select an item for purchase.

Before the existence of software, copyright and patents were mutually exclusive. Software may be both copyrighted and patented. Software is a utilitarian artifact when executed in a computer but independent of execution becomes aesthetic, like writing. The author claims that a single unified scheme is needed, as IP law covering software has become a kludge. IP laws are repeatedly patched because of software’s unique attributes.

Another example involves Joseph Priestly, a scientist who in 1774 discovered oxygen by heating mercuric oxide. If the discovery of oxygen were made today an argument could be made for patent to not only cover its process of production but also oxygen itself. One might counter with a claim that oxygen is a product of nature, and counter-counter claim that patents have been given on insulin and adrenaline (made by humans and other animals for millions of years).

What about IP covering the process of manufacture of oxygen? Molecules can be created by both human intent and by naturally occurring process. If instead you generated oxygen by electrolysis of water, electrolysis would be a new process but it would not yield a different artifact. As both origin and structure of the process matter in legal argument, the resolution is unclear. Priestly’s discovery if patented might have locked-up oxygen resulting in everyone on the planet needing a license to breath. The author indicates that it is important to sort out these kinds of distinctions now as in the future it will only get easier to produce natural molecular artifacts in novel ways, including as genes.

Whether addressed as ideas and artifacts, abstractions and implementations, or continuants and occurrents, pairings like these belong to the philosophical domain of types and tokens. Ideas are types and types do not exist in the physical world. They can only be imagined. Artifacts are tokens and are physical representations of types. Types and tokens are mutually exclusive. Or are they? Complex ideas are often confused with complex objects and vice-versa. Blurring and confusion are one of the side effects of complexity. (The ultimate philosophical question might not be the consideration of whether God exists, but whether God is a type or token.)

The author does not make a claim that the underlying concepts of types and tokens are complex or that the reasoning about ideas and artifacts are difficult. Instead he claims that ideas are being patented (as in the one-click patent) because:

1. The judges who interpret patent laws are clueless.
2. Patent lawyers are taking advantage of the patent system.

To sum up: The premise and prediction of Innovation and Nanotechnology is that in the utopian future nanotechnology will end intellectual property law by making physical objects just like digital data, reducing replication and distribution costs to zero, eliminating both the possibility of profit and rationale for legal monopoly. Given the premise, the book’s greatest weaknesses are not on legal theory but on the science of nanotechnology.

The author does well with legal and philosophical musings but does not dig far enough into the science and engineering. The author confuses replication with self-replication, nanotechnology with programmable nanotechnology and autonomous nanotechnology, confuses 3D printing with 3D manufacturing, open manufacturing with nanotech manufacturing, and confuses distributed manufacturing with low cost manufacturing.

David Koepsell downplays the differences of construction of nanotech in its physical dimensions and scaling, ignoring the differences when nanotech is constructed by chemical, biological or mechanical means. He implies that all science and engineering differences, inconsistencies and conflicts in nanotechnology will someday reach beneficial harmonic convergence. The equivalent of free beer (for Star Trek fans, free Earl Grey tea) for all. This reviewer however remains skeptical. (http://www.flickr.com/photos/skepticalist/4372728626/).

If the scientific conflicts were addressed and analyzed in detail rather than glossed over and relegated to references, David Koepsell would have made a more cogent and plausible argument and a much better book.