Patentability of Nanotechnology Inventions: A Study Based on Decisions by the Examination Division of the European Patent Organisation, the Opposition Division and the Technical Board of Appeal

Abstract

Abstract The World Intellectual Property Organisation (WIPO) has identified nanotechnology as one of the prominent technologies of recent times (WIPO Magazine ‒ August 2011). Nanotechnology has a wide variety of applications in the field of medicine which are leading to the evolution of a new branch of medical science – nanomedicine. This involves using particles or materials within the size range of one nanometre and a thousand nanometres to diagnose, treat, and prevent various diseases. Biomedical nanotechnology, bionanotechnology, and nanomedicines are applications of nanotechnology in medicine and this article covers these three areas under the umbrella-term ‘nanomedicines.’ The European Union is a significant player in the wider nanotechnology market (including nanomedicines). At the European Patent Office (EPO), the number of nanotechnology patent applications (including nanomedicines) is increasing every year. The European Patent Convention (EPC) – the unified European patent system – came into existence in 1973. It provided patent protection for valid technologies according to the patentability criteria provided by EPC, and Art. 27(1) of TRIPS directs its signatories to offer patent protection for every technology equally. However, nanotechnology’s unique nature poses a threat to the existing patent law. This paper critically analyses certain decisions by the EPO and its Boards of Appeal considering the technological speciality of nanotechnology inventions with reference to nanomedicines.