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How many attorneys have begun to recognize the importance of nanotechnology? An online nanotechnology key word search of U.S. law firms listed in Martindale-Hubbell listed 25 hits. But those 25 hits were the various branch offices of just four firms with nanotechnology practices. Thirty-two lawyers were identified as nanotechnology practitioners across 12 additional law firms not included within the four firms with technology and science groups. And, only six articles on nanotechnology were cited as written by practitioners of those firms. A quick search in Google led to www.nanovip.com, which listed 30 law firms with special expertise in nanotechnology, 89 companies offering nanotechnology consulting, and 96 nanotechnology organizations worldwide. One firm identified itself as the “nanolawfirm.” While these sample results are certainly not indicative of the worldwide momentum nanotechnology is gaining, a few law firms have begun to take notice. Nanotechnology is becoming an important multidisciplinary area of interest for attorneys, initially, within the patent practice groups. According to Business Communications Company, Inc. (BccResearch), by 2010, nanostructured materials are projected to increase their share of the total market to 19 percent, and nanotubes to 8 percent, with the total market for end products relying on nanotechnologies for their production, functioning, and/or distribution anticipated to reach $958 billion. BccResearch anticipates a nanomaterials — nanoscale structures in unprocessed form — industry to emerge. While it may be argued that there is not a nanotechnology market, Lux Research Inc. indicates there is a nanotechnology value chain comprised of nano-enabled products made up of nanomaterials and intermediate products with nanoscale features. Given these projections and in response to increased nanotechnology-related application filings, spanning across a wide variety of technology centers, the U.S. Patent and Trademark Office in October 2004 defined the scope of what it considered nanotechnology-related for examination, and consolidated identified published nanotechnology-related publications into a single U.S. Patent Classification cross-reference art collection — Class 977 — dedicated to nanotechnology. This nanotechnology art collection provides for disclosures related to: (1) a nanostructure and chemical compositions of a nanostructure — defined by the Patent Office as an atomic, molecular, or macromolecular structure that has at least one physical dimension of approximately 1-100 nanometers; and possesses a special property, provides a special function, or produces a special effect uniquely attributable to the structure’s nanoscale physical size; (2) devices that include at least one nanostructure; (3) mathematical algorithms specifically adapted for modeling configurations or properties of a nanostructure; (4) methods or apparatus for making, detecting, analyzing or treating a nanostructure; and (5) specified particular uses of a nanostructure. It generally does not cover chemical or biological structures. Examples of products derived from nanostructures may include electronic devices and integrated circuits, safety ropes, construction materials, paint and textiles. Nanostructures can be used for conversion, containment or destruction of environmentally hazardous materials; medical treatment or diagnosis; electronic or optoelectronic applications; textile or fabric treatments; and carrying or transporting. Reporting in their May 2005 Nanotechnology Customer Partnership Meeting, the Patent Office has classified 1,348 patent applications under Class 977 across seven technology centers, with the top three technology centers being chemical and materials engineering; semiconductor, electrical, and optical systems; and biotechnology and organic chemistry. And, that represents only 39 percent of the applications reviewed. In an upcoming report, BccResearch projects that the global market for nanotechnology applications in the life sciences will exceed $910 million in 2005 and $3.4 billion by 2010. With over 50 percent of the market, nanodevices applications were reported to be the largest technology segment in 2004. By 2010, they project that nanoparticle applications will surpass nanodevices as the largest technology segment. While the market for nanotechnology application in the life sciences looks promising, the implications of patent law in the field of biotechnology and genetic engineering continue to be contentious. A recently released second report adopted by the European Commission to the European Parliament and Council focuses on patents relating to gene sequences, and the patentability of inventions related to stem cells. The legal protection of biological inventions was also reviewed. The report considered whether patents on gene sequences should be allowed according to the classical model of patent claim, wherein the first inventor can claim the invention covers possible future uses of that sequence, or if the patent should be restricted to the purpose-bound protection, or only to the specific use disclosed in the patent application. The European Commission concluded that it would not take a position on the choice between classical and limited scope of protection for gene sequences, but would continue to monitor economic consequences or possible divergences among the legislation of member states. With stem cells, the report distinguished between totipotent stem cells, which are capable of developing into a human being, and pluripotent stem cells, which do not have that capability. In relation to the totipotent stem cells, it reinforced the provisions that the human body at various stages of formation and development, as well as the simple discovery of one of its elements, including the sequence of a gene, cannot constitute a patentable invention on the grounds of human dignity. For embryonic pluripotent stem cells, the question of patenting was linked to the definition of what constitutes an embryo. In each case, the commission reported that it was premature to offer further definition or provide continued harmonization in these areas, choosing instead to monitor the developments in the field and potential impact on competitiveness, while launching a study to consider the ethical and legal aspects of stem cell patenting. BRAIN-MACHINE INTERFACE According to Joel Garreau, author of “Radical Evolution: The Promise and Peril of Enhancing Our Minds, Our Bodies — And What it Means to Be Human”: “Four interrelated, intertwining technologies are cranking up to modify human nature. Call them the GRIN technologies — the genetic, robotic, information, and nano processes � Human technologies are now being aimed inward to transform our minds, memories, metabolisms, personalities, and our progeny.” Based upon his research, Garreau argues that the super powers of comic book heroes now exist, or are in various stages of development in research laboratories around the country — “from the revved-up reflexes and speed of Spider-Man and Superman to the enhanced mental acuity and memory capabilities of an advanced species.” While this may sound like science fiction, a recent National Science Foundation press release entitled “Wiring the Brain at the Nanoscale” announced the release of a published article demonstrating a technique that in the future may permit the constant monitoring of individual brain cells, direct modulation of brain activity, providing a new approach toward medical neuroscience and the imaging of neural circuit processes. It could also provide the medical profession with the ability to better determine damage from injury, as well as detect abnormalities. Leading a team of U.S. and Japanese researchers, Rodolfo R. Llinas, chairman and professor of the Department of Physiology and Neuroscience at the New York University School of Medicine, is the first to experiment with and guide nanowires into the vascular system facilitating a better understanding of the brain. The ability to place nanowire sensors in the brain and thread through the circulatory system is anticipated to provide new treatments for many neurological and psychiatric conditions, as well as vital information regarding the diagnosis and treatment of abnormal brain function. Its interface with “intelligent” devices offers the disabled the potential to lead a fuller life. Understanding neuroscience and the implications of neuroscience research is essential to making sound decisions regarding the benefits and risks associated with advances in medicine, according to Michael S. Gazzaniga, author of “The Ethical Brain,” director of the Center for Cognitive Neuroscience at Dartmouth College, and a member of President Bush’s Council on Bioethics. The brain-machine interface, as well as the interface between neuroscience and ethics, further advanced by nano-probe capabilities, is offering new insights into the workings of the brain. However, some concerns, as well as expectations, are that neuroscience has, or soon will have, the ability to determine an individual’s competence to stand trial, as well as the formation of criminal intent. Is the law ready to address the ramifications these possibilities may hold? Should proactive measures be established to prevent its abuse? Will the courts be able to distinguish science fact from fiction, particularly when admitting such novel scientific evidence? As Garreau cautions, it is only by anticipating the future that we can hope to shape it. Even amidst recent reports that the Patent Office struggles with workforce problems, measures are being taken to automate the agency as well as help patent examiners stay current on state-of-the-art technology in their fields, in particular, nanotechnology and its interdisciplinary properties. The United States, Japan and China lead in nanotechnology patent applications. And America continues to be the acknowledged leader in nanotechnology research and development with the president’s fiscal year 2006 Budget including over $1 billion for nanotechnology research across 11 agencies. The future, on a global level, will continue to be driven by the convergence of technologies at the nanoscale. Nanotechnology is multidisciplinary and interfaces with biology, physics, chemistry, engineering, and computer science. More attorneys need to recognize its importance, as well as the accompanying business implications for their clients. Sonia E. Miller, an attorney in private practice in New York and Washington, D.C., is the founder and president of the Converging Technologies Bar Association.

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