Future Current

Christine Peterson is the founder and vice president of public policy for the Foresight Institute  and co-chair of the Convergence 08 Unconference.   For the February 13, 2008 lecture for the Stanford Law, Science and Technology Colloquium at Stanford University, she presented on the long-term potentials and unprecedented challenges inherent in nanotechnology.

The following transcript of Christine Peterson’s Stanford Law, Science and Technology Colloquium has not been approved by the speaker. Video is forthcoming.

Long Term Potentials, Unprecedented Challenges for Governance

This is a huge topic, nanotechnology. It is an absolutely immense topic. The reason for that is that it overlaps with the future of physical technology in general. If it has to do with the physical world, including your body, nanotechnology is going to be a major part of its future. Of course, that covers an immense space. Let’s just jump in and see what we can do in one hour.

You have to have some kind of definition to get started. The U.S. government definition is “the understanding and controlling of matter at dimensions of roughly 1 to 100 nanometers, where unique phenomena enable novel applications.” Now, “novel applications” is an understatement, as you will see.

Is this a useful definition? 1 to 100 nanometers is a linear dimension, a factor of a hundred difference, in length. In terms of area, that is 10^2 times 10^2, which is a variation of 10,000 in surface area. This table is a surface area. Then, if you think about three-dimensional volumes, that is another 10^2. So it is a factor of a million in actual size. So, although up at our macroscale we think 1 to 100 nanometers is not that different, the fact is that if you think of them as three-dimensional objects, we have a difference of a factor of a million in the size of these objects.

If you picture that up at the macroscale, this difference between a factor of a million in volume is huge. Take this object [a water bottle] and then something that is a million times the volume of this. Now, is there any connection between these that is useful to think about? Not really. It is a huge difference in size, even though it is down at a tiny scale. It also, as you notice, says nothing about what it is made of in terms of atoms. Not only do you not really know the size of these things from this word, you have no idea what they are made of.

It is not really a very useful word, especially to the legal profession. As you will see as we go forward, maybe now and then I will remember to say, “Think of how useless that word is.” In the companies and the governments you work for in the future, non-technical people are going to come to you and say, “Why can’t we regulate and patent nanotechnology?” And the answer is—because that is not a useful word, especially to the legal profession.

You will hear, people will sometimes use the word “nanotechnologies.” The plural form is just to remind everyone involved that this is not one technology. You will also hear the term “the nanotechnology industry.” There is no nanotechnology industry, and there never will be a nanotechnology industry. There are nanotechnology-based industries.

So when you hear that term, there is a number of things that could be going on. The person you are talking to is using this term “nanotechnology industry” to try to get funding. They are trying to force through regulation, and so they are using this term to try to get government action from people who often do not have a clue about what is going on. The third possibility is the person using the term is not trying to do anything in particular and is in fact clueless. If you use this term “nanotechnology industry,” be ready to be challenged on it, and be ready to back it up.

Why are people excited about the field? They are very excited. Huge amounts of money are going into this, not just in the U.S., in places like Japan, but even in some of the smaller countries. If you want to be a player in the science and technology of the future, everybody feels they have to have a nanotechnology program of some kind. Take any country that wants to be more advanced scientifically and technologically, type the name of the country and nanotechnology into your search engine, and boom. Generally, they will have some kind of program.

With the countries you named as we went around the room, probably your country has a nanotechnology program. It is worth checking. How much are they spending, where is the money going, when did they start the program, who is involved? These are some things that you might want to be aware of.

This is just a tiny fraction of the applications that nanotechnology will have going forward. You noticed, I just used the single term. It’s a short form—I’ve briefed you on that. Here are just six off the top.

Clean energy is critical. We all want that. It is very important. Clean water is a very big issue for a lot of the countries that you folks mentioned. Huge medical applications are coming. They are coming quickly, initially in the cancer area. But we can expect many, many other applications.

Healing and preserving the environment—environmental cleanup is going to be a big application here. It is already a big part of information technology, and that will continue. Some of the countries that you mentioned, like Japan, have a space program. This will play a big role in that as well.

Anything that involves physical technology in the future is going to have nanotechnology involved. There is just no question about it. To the extent that you go back to your home countries and you are involved with manufacturing, with any kind of industry, anything that is not pure software, it is going to have a nanotechnology component. That is why governments and companies are investing huge sums of money in this. There seems to be a race going on between the U.S., Japan, and Europe to see who can spend the most from the government level, but many of the other countries that you mentioned going around the room are also spending.

The question is will these countries get value for that. In such a huge space, it would be easy to take whatever money that your country is putting in and spread it too thin, and not really gain world leadership in any niche market at all. That could easily happen. When you go back home, and you find out where is this money going, that is what you might find. Now, some countries are realizing this and are saying we are not going to do all of “nanotechnology.” We are going to home in on one specific area or set of areas where we have some inherent strengths already, perhaps based on our natural resource base in industries we already have. That would be something for you to check. Are those synergies operating? Or has the money been siphoned off in not very helpful directions?

I know that Russia, for example, is putting in a lot of money. But I was told frankly while I was over there that about half of it will be siphoned away into corrupt uses. This is just because they do not have a good governing system in Russia. There is a lot of corruption at all levels in the country. You can vote to put the money in, you can be trying to help the country, but the money tends to flow away. This might be something to watch for when you go back home and you are looking at your countries programs. Where is this money going?

I know some of you will probably go on to work for companies, some of you may go into private practice, some of you may go into public policy or government eventually. This is just something to be aware of.

When you think about nanotechnologies, it is really important to think about timeframe. This set of technologies is going to change drastically as time progresses. Right now, in the current phase, mainly what we are doing is coming up with new materials. Many people, when they hear the word “materials,” they fall immediately to sleep, and I understand. It sounds like a boring thing. In fact, there are some amazing materials coming—the kinds of things that can give you really cost-effective solar power, for example. That is going to be critical for all countries that you mentioned, whether developed or developing. Cheap solar power is going to make a huge difference for us. It is important for the environment. We are starting to do things like coming up with coatings that will keep things really clean. Again, it sounds really boring until you realize that saves huge amounts of water and energy.

Even though materials does not sound exciting, that is what is happening right now. In the countries that you are from, when you go back, that is mostly what you are going to find. Don’t be put off by it. There is plenty of profit to be made in those areas and some very exciting applications also. To find out about it, you can use standard industry information sources. It is not that hard to find out. Compared to some of the other things I am going to tell you about, the benefits and the challenges of the materials timeframe are relatively modest. There still are huge benefits and big challenges, including legal challenges.

The phrase you will hear is “nanoparticles.” These are chunks of matter of some kind, which is in this roughly 1 to 100 nanometer size range. These are called nanopartilces. They really do act differently from larger chunks of stuff. They have new physical properties, and they need to be treated as new entities in terms of regulation, and that is not happening yet. The process of figuring out how to regulate these things is just starting, but it is starting. We are doing better on this than we have in the past on some technologies, but not really well enough.

That is the near term, what is happening right now. Then we move out into the mid-term. Now we are not just looking at simple materials—we are looking at devices. Sensors which can sense the environment in many different ways. Actuators, which are things that move. Active materials—a material which does things, which changes shape, for example. Many projects are involved with trying to read DNA. That is going to be a big application, and that is coming for sure. It is just a question of who is going to win that race. Targeted drug delivery, so that things like chemotherapy agents go where they are supposed to go.

If any of you have had relatives who have gone through chemotherapy, you know it is a miserable, horrible process, because the poisons that are going into the body are attacking healthy cells as well as the cancer cells. That is why things like your hair falls out—the whole body is under assault. When you do chemotherapy, the hope is that these toxic agents will kill more cancer cells than healthy cells, but it barely works. That is why it is such a miserable process. If we could find a way to make sure that those agents only killed the cancer cells, it would be fantastic.

That is coming along. I have seen some impressive results. How would this work? There are a lot of different mechanisms being explored. I’ll just give one example. You have a nanoparticle of silica, which is basically sand—silicon dioxide. It is coated in gold, and then they functionalize it—they attach to it some kind of biological molecule that likes to attach to cancer cells. Throw those in the body, they attach to the cancer cells. Now what? It’s very clever. Someone realized if we shine near IR light on the person’s skin near where the tumor is, it will go through the skin, heat up the gold, and the heat alone will kill the cancer cell. It’s technically elegant—a very clever thing.

That is the kind of thing people are working on. So, how do we get these active agents to only hurt cancer cells? My guess is, given the age range of the folks here in this room, it is very likely that although today in the U.S. cancer is the number two killer, by the time your generation is hitting those ages, it may not be the case. Something else will come along, I’m sure to fill that place, but it may not be cancer anymore. That is a huge change. It is something very exciting and hopeful to look forward to in your generation.

I think these are coming along fast enough and are looking exciting enough that it would not surprise me to see one of these approved in the U.S. within ten years. Sometimes they will fast track something that is looking really exciting. Well, these are looking pretty exciting, and a huge amount of money is going into this. Now, there’s a change.

If you are interested in this timeframe and want to know what kinds of things other than targeted drug delivery might happen, it is hard to find predictions in this timeframe. You have to be gutsy to make them. One of the few organizations that does make them is the Institute for Soldier Nanotechnologies at MIT. This is not offensive military, this is defensive military. It is not classified work—they’re pretty open about what they are doing. They are doing things like working on uniforms that will help a soldier who is injured. They talk about boots that you could wear that would let you jump twenty feet in the air. They don’t talk about what happens when you fall down twenty feet to the ground.

This is when we talk about active materials. These are materials that have energy stored in them that can be released. It sounds like science fiction, but these types of applications can give science fiction-type results. If you are interested in this timeframe and want to get a feel for what kinds of things are coming, you can look up Institute for Soldier Nanotechnologies on the MIT website and read about the kinds of things they talk about.

It is very hard to predict what is going to be the order of innovations that arrive in this timeframe. This timeframe will see important economic and strategic changes. You can see that the kinds of things I have been describing from this institute are defensive technologies, but you can imagine offensive technologies as well. You can imagine disruptions to the world’s global balance of power once countries start developing offensive applications. It is not a pleasant topic, but something that could very much affect the countries that you are coming from.

That is the mid-term. Then we get into the longer-term. Now what we are looking at is the original vision of nanotechnology, which is being able to precisely control every atom in an object. This is a very ambitious technical goal, but this was the original dream of nanotechnology when it was first envisioned. This gets very dramatic in terms of results. One of my favorite applications for this is the fact that if you can manufacture things using this kind of technology, there is no excuse to have waste anymore.

Today, when we manufacture things, and this is going on in all of your countries right now, there is something left over at the end of the process. It gets dumped in the air, the water, and the landfills. There is leftover stuff of some kind that is not recycled. The goal is to get away from this. When we have this level of technology—when it is cost-effective, as it will someday be—there will be no excuse for it technically anymore. No more dumping in the air and the water.

For those of you with an environmental orientation, which I would bet is everybody, that is a very inspirational dream. Some of the countries we are talking about here are in the developing phases. Is there a way for them to leapfrog away from this dirty phase of development. Can we skip that and go right to something cleaner? This would be the vision and the dream.

Other countries you mentioned are more developed. There are often in that case problems with environmental degradation. With this level of technology, you could go in and clean that up. You could say, Not only are we not going to pollute in the future, we are going to go back and clean up what’s been done in the past. To me this is a very inspirational vision and this is what drove me to take an interest in this field from the beginning.

Another consequence of this in the long-term, and I think this will be true in your lifetime, is what would happen if we have atomic-scale control of our bodies. In the mid-term timeframe I was talking about nailing cancer. No more cancer cells, so that people do not die of cancer anymore. With this level of technology, you move on. What’s left? What kind of disease could a human being have that could not be addressed with this level of technology eventually? It’s hard to say.

I suppose a massive accident—you’re hit by a truck. That could be the end. But in terms of disease, where there is time, it’s not clear what kind of disease you could have that would not be treatable with this level of technology. Basically, you want to put the atoms of your body back in a healthy arrangement.

What about aging? Aging, as we know, is a very complex process. There are many things that are all going on at one time, but all of them are misarrangements of atoms. In principle, if you could figure out what a healthy pattern of atoms and molecules in the body is, you could then restore that pattern. The goal, of course, is that you not disrupt the structure of the brain, because that is where your memories and your personality are. I don’t mind if everything from [the neck] down is rebuilt—start from scratch, make it all perfect. But up here [the brain] we need to keep the patterns.

Ultimately, I think aging is addressable. When that happens is very hard to say. Even before nanotechnology tries to take on the question of aging, there are biological approaches, that my colleague Susan [Fonseca-Klein] can tell you about, since she works with the organization that is doing these. They may nail the issue prior to the arrival of this more ambitious technology. If they cannot really solve all of the problems, eventually some day this type of thing should do it.

This is a picture of something that has not been physically built already—this is a model using chemistry software, showing a type of machine. This is a very simple bearing. We make these all the time at the macroscale. In this third stage, we are building actual machines down at the molecular level. There would be things like this bearing down there, working away.

This is called a planetary gear. For those of you who know something about cars, I have been assured many times that we have planetary gears in our automobiles. This is a cut-away version—you are seeing half of this gear—and when I click on it, you will see it moving. These things are rolling. Again, these things have not been built at this scale—this is a model using the best chemistry software. We think, based on that, when we are able to build these things, that they will work. This is this third stage. I think you will see this sometime in your lifetime based on the age range in the room.

This schematic is trying to get across the idea of building with single atoms. The green atom is supposed to be a hydrogen. It is being transferred from the upper tool piece down to the final product on the lower level. You can imagine this as a factory system. It is like a little assembly line. Again, a very long-term goal, but as far as we can tell, there is no reason why it should not work.

For you, as lawyers, whether you are working in companies, for government, or on your own, there are many legal issues raised by these types of technologies. I have a list of five here. The first one and the last one are immediate. When you go home, these are probably happening in your country right now. You will have to be prepared if you are going to be addressing these. The other three are things to be aware of. You will see them eventually.

The one big issue that is happening right now with these nanoparticles and nanomaterials right now is that there are concerns and issues regarding environmental health and safety. These materials act differently from what we are used to. You can take the same atoms, you make them into a particle at this size range, and it acts differently. That is often a good thing, but it could be a bad thing. Often, we don’t know. We have some preliminary testing data that indicate there is some potential for environmental or health concerns. We have other test data that seems to show no problem. So we have a mix of data.

When you buy these materials, here in the U.S. and probably in your countries, it comes with a safety data sheet that tells you how to handle the material. If you buy a nanomaterial now called carbon nanotubes—these are tiny tubes as you can tell from the name, made of carbon. They are a little bit like graphite in their structure, but they act completely differently from graphite. There is almost no connection, but if you buy it in the U.S. now, the safety sheet you are provided is for graphite, because they are both made of carbon. This is not just misleading, it is completely wrong. We are not seeing the level of attention for this from any of the entities in this process that we need to see.

Are there consumer products that have these in them? There are consumer products that have these in them, but they are bound. Things like sports equipment. They are not loose—they are bound into a matrix. The issue there is not that they might get into your body. The issue there is what happens to these things in the landfill. That is more of an environmental issue.

The public expects government protection. Both in the U.S. and in your countries, that is what the public expects. The companies who are making these products want the government to come up with some rules that will give them a safe harbor. You, being attorneys, understand the concept of safe harbor much better than I do. They want to be protected so that they know, here are the tests that we have to do, and if we do those tests and they all come out well, there will not be huge judgments against us, because we have followed the proper procedures. That is what companies want and feel they need. The governments are not providing either the protection the public wants or the guidance the companies want. They are not giving either one.

Unfortunately, some companies are not acting responsibly. We see already the big insurance companies, especially the reinsurance companies, are very concerned about this. Currently, they are not excluding these products from their insurance policies. If you are working for a company, you have some kind of insurance policy that is trying to protect you from these kinds of lawsuits and the reinsurance companies that are ultimately going to pay are nervous about this. They are trying to figure this out and are trying to nudge the governments into stepping up and providing the kinds of guidance that the companies need, but it is not happening, and they are getting very nervous.

I’m going to give you a couple of examples. These are the kinds of things you want to keep an eye on in your own countries when you go home. You do not want to work for a company who does this kind of thing. There is a company in Asia—I did not list the country because I thought maybe someone here might be from this country. What they are doing is they are selling a washing machine product that puts silver nanoparticles in the wash water to kill bacteria. Now, there might be benefits to this. You can use lower temperature waters, save energy—that’s a good thing. The problem, of course, is that then you have these silver nanoparticles in the water, and the water does not stay in the washer. It goes out into the sewage treatment plant and eventually gets discharged into the natural environment.

What happens to these bacteria-killing particles? As we hopefully know, many bacteria are good bacteria. We don’t want to kill all the bacteria—that would be very bad. So, what about that? The company has been asked about it, and they say, “We did testing, and it’s fine.” But if you look on their website, you cannot find anything about it. Frankly, until I see better data, I’m not buying it. It would have to be pretty thorough data, because when you think about where these particles are going to go in the natural environment, they are going to go everywhere—just as water does. Once it gets out in the oceans and the lakes, it is just going to be everywhere.

This product has already been withdrawn from the company in Sweden based on some consumer concerns. These concerns are spreading. I believe that the U.S. recently decided to not crack down on this washing machine product in a regulatory way. I would have to question that decision, but this is the kind of thing when you go home, your countries are all going to run into this. Even though you might not be technical folks, you have friends who are. You have consultants you can call in to advise you on these things. You should listen if they say this is not clearly a good idea. The less developed your country is, the more you are going to have to watch for these things. You do not have the infrastructure in place to keep an eye on this stuff. The U.S. is having trouble. Sweden is the only one that has really caught this one.

Another example was a European firm. I mentioned carbon nanotubes in a tube shape. These are carbon in round shapes. It is basically sixty carbon atoms in a soccer ball shape. They are called buckyballs after Buckminster Fuller, who had to do with these kinds of shapes. They have powerful properties. For example, they are great anti-oxidants, which can be very good things. However, they are very strong. Some data has shown that these things may have health concerns. There is a company in Europe which is putting buckyballs in face cream. You may not be aware that cosmetics are poorly regulated, certainly in the U.S. Apparently, that is also the case in the country that this is being made in. The benefit of whatever this face cream may be doing does not sound big enough to balance the potential risk of these powerful chemicals. Let’s say a woman puts this face cream on her face, she has a baby, the baby is getting this in its mouth… is this really a good trade-off?

There are concerns about this product. Can these buckyballs cross various biological barriers? There are some data that seem to indicate that some nanoparticles can cross the blood-brain barrier. That could be a useful property if you are trying, for example, to treat brain cancer. It is hard to get things into the brain. That barrier is pretty good. If you want to get a chemotherapy agent in there, you have got to get something that is going to get past that blood-brain barrier. These may do the trick. In general, we do not want things to go past that barrier. Certainly we do not want buckyballs to do that. There are some nanoparticles that seem to be able to do that. Is it worth the risk to put this in a face cream? I would say absolutely not. It took awhile for scientists to start to say that, but they have started in this country to ask why this product is on the market. Meanwhile, it is on the market. You can buy it right now.

This is the kind of thing that is happening because companies are expecting government to regulate, and government has not stepped up yet. The reason is that there is so much uncertainty on the technical side. Let’s say you go home and take a position in your government. They call in the technical experts, and they say it is too early to know, what do you do? It’s a very difficult situation.

We can come back to that, but I want to move on to a mid-term concern. Right now there is a lot of surveillance happening. It is mainly video cameras and sound equipment. These kinds of technologies can be used to control populations by governments. That can be a concern in countries where the government is not representative and may be oppressive or authoritarian. I am not going to speculate as to whether any of you are from those kinds of countries, but they are around and already using surveillance technologies. What is the next step? With nanotechnology you can do more advanced chemical surveillance. You can detect single molecules with these sensors. That is the best chemical detection you can ever have, and they are already building these things.

The military of any country would probably be the first to get these. Then, non-military government, like police. Then commercial, and then individuals eventually, as the prices come down. That is a speculation on the order in which these things might roll out. Who will be allowed to have these devices? Some countries have rules about what individuals are allowed to own. In the U.S., I was shocked to find, there are long-distance audio recording devices that individuals are not allowed to own. You can buy them in England. It’s legal there, but not in the U.S. I was surprised to hear that. You can ask what will be allowed to be sensed and recorded. Where will these things be allowed to be used? For example, in the future, ten or twenty years from now, if we have this class then, everyone in this room may be wearing these recorders and picking up all kinds of things. They could tell, if we were to shake hands and used my recorder, I could say, “Did you have fun eating that pizza last night? And what were you smoking?” These kinds of questions come up.

Who owns this kind of information when the government collects it? What about when a company collects it? When an individual collects it? How long can it be kept, how can it be used, can it be used in court? This would be an issue for you. Often there is data that is known, but it cannot be used in court. Could it be used in job screening? All these legal issues are going to have to be resolved one way or the other. They may be resolved differently in your country, compared with the U.S. I mentioned food sensing. What have people been eating, what drugs have they been taking. DNA sensing—many people would like to think their DNA information will be kept private, but it is important to realize that you leave your DNA all over the place. When I drink from this water bottle, I’ve left DNA right here. When I leave the room, I may leave this behind. I’m certainly not going to keep it with me for the rest of my life. The data is there, and whoever has one of these DNA readers in the future will have access to that data.

If people still have this idea that DNA information is going to be deeply secret, I just do not see how that is possible. We leave it everywhere we go. How will society decide what can be done with that data is another issue. Each of your countries may decide this question differently, but decisions are going to have to be made. You may very well be involved in those decisions.

In the longer-term—I believe this is within your lifetime, but it is not near-term. We have to ask ourselves how will these powerful technologies be used in offensive military use. The way to think about it, when you ask what would an offensive nanotechnology weapon be like—think of it as being harsh and tough like a chemical weapon, which are awful things, but controllability and targetability. You could imagine it combined with a DNA readers, for example. Controlling these, arms control of this type of technology, would be very, very hard. We have been fortunate with nuclear weapons because much of the arms control surveillance can be done from space. You don’t even have to go into the country to do this kind of survey. You can do a great deal of it from space, it is non-intrusive, and we have been fortunate for decades without having more nuclear wars happen.

That is not going to work for nanotechnology, or biotechnology-based weapons. To detect this kind of weapon, you would need very thorough inspections. Look what happened the last time we tried to do an inspection on a country that did not want it done. There are approaches for this that have been discussed that we can get into. What does it mean for today, and for your countries when you go back home? We need to practice on this and start to get better at regulating and controlling chemical and biological weapons. These things are out there now. We are not controlling them now, anywhere. If we want to have any hope in the future of these more challenging control problems, we should practice right now and get good at these types of controls because they are similar. We need to be able to work out how countries are going to reassure each other that they do or do not have these things, that they are or are not being properly protected, and that they will not fall into the hands of terrorists, or maybe will not be built at all. We can practice right now on these existing weapons because the problem is very similar.

Sometime in your lifetime I expect these technologies to be used for human enhancement. Someone mentioned, what about aging? If aging could be addressed, that would be an example of human enhancement. It is important to realize, we already do enhance human beings. There are many pharmaceuticals that already change personality. We change our physical appearance already. I think that you can imagine extreme changes—improved senses, maybe new senses, better memory, recording abilities. After all, if you can have a recorder of this size, you can have a recorder inside the human body that could do all the same recording. How does that change the legal situation? We come up with legal rules that define how government can get a hold of the data in my personal computer, and they generally can do it. There are many circumstances when they can get the data. What if it is inside my body? How does that change things? I think it does change things.

Control of emotions and personality, increased concentration, you can imagine all kinds of changes. Some people want this type of thing to be illegal. They point out, for example, that if it is legal you will have increased inequality. That is certainly true. Of course, it is unlikely that all the countries represented in our room here will agree on what should be legal and not legal. For example, the religious backgrounds of our countries are very different. There are already countries that are taking a different position on things like cloning and other early procedures that are likely to propagate into the future. Countries are going to have different laws, which means you are going to have citizens traveling to have procedures done in other countries. We already see tourism for cosmetic changes. That will certainly continue. We have to ask, how effective can these laws be to make it illegal if you can just go overseas and come home? Are these countries going to say you cannot come home? I would assume that is a ridiculous concept, and yet, without that kind of rule, this idea that it is illegal is not going to fly.

I would argue that the effects of trying to make these procedures illegal could be worse than the effects of just saying this is not something we can control. We will see how people will feel about that. I think there are big cultural differences represented around this table, and I for one am not going to try to take my preferences and enforce them in your country. I hope everyone in my country will take that position. It is not our job to go around and tell other countries what they can and cannot do with their bodies and the bodies of their visitors. I hope that other countries would take that position as well, but I don’t know. I think this is going to be very controversial, and I think there are going to be a lot of fights about it. Someday, some time in your legal career, this may be coming up. People may be coming to your country for enhancement tourism. I hope you make a lot of money off it.

In terms of being responsible about this kind of technology, we have come up with some scorecards—voluntary guidelines so that government, industry and individuals can get a feel for how they are doing. This is something that when you go home, if people ask for your assistance in being responsible in their nanotech development, whether it is government or industry looking for help, you can say—this is a place to start. These scorecards are a self-assessment tool to get some ideas on how to move forward toward safer development. Your comments on improving these would be helpful, especially if you, in the future, you are involved in this professionally. At that point, you may have some very helpful comments about this.

Some of what I have talked about sounds like science fiction. My point here is that I am not trying to talk to you just about what you are going to find when you go home at the end of your program. I’m trying to talk about what is going to happen throughout your career. You are going to be doing this for decades. So I am trying to give you a feel for some of the things that could happen. I, in my own career, have seen the world change from no internet to today’s internet. That has been a huge change and it has had a lot of legal consequences. I was very fortunate, because in the early days of our organization we looked ahead and saw something that looked like the internet at that time. You can see that in the book that founded our organization—it is described there. When it arrived, we were ready. We said, “Wow, here it is.” We jumped in and took advantage of it. You can do that, too. You do not need to focus too hard on this—just have it in the back of your mind that we had that discussion at Stanford, and here it is. Here is what we expected.

If it seems like science fiction, if you are looking far ahead, it has to seem like science fiction if it is going to be true. It is hard to realize for people who are younger, but the internet sounded like science fiction not long ago. Don’t let that bother you—you have got to get past that.

One last issue—patents. This is a near-term one. This is one you will hit as soon as you go home. If you look at the major technological revolutions that have come through—information technology, biotech, in the early days of those there were some innovations that were not patented or that were patented and opened up somehow. That is not true for nanotechnology. By the time nanotech started, the patent system and the patent procedures were very tightly in place. Pretty much everything has been patented from day one. We have fundamental, basic building block technologies which in other industries may not have been patented. They are patented in this set of industries.

When an innovation is made by a professor in a university, which is where much of this work is being done, there is an act of legislation here in the U.S. that assigns the patent rights to the university. That may or may not be the case in your countries, but many countries have copied this practice, and more and more are starting to do it. Regardless of what is happening in your country now, this may be the way it is done in the future. What this means is that these patents end up under the control of a university technology transfer office. These folks are not necessarily good at finding ways to most efficiently license these patents. They may not get licensed at all. They may take a very broad patent and license it exclusively to a narrow application, and the company they license it to may not have the time, especially if it is a start-up, to look for other applications or even deal with inquiries from other people who may want to use that patent.

You can see that although many people you talk to say that the system is working, that is not clear. If you get the opportunity to participate in shaping your country’s patent system, and you may, I would not assume that the received wisdom of just doing it the United States way is necessarily the best way. It is not clear that any country has found a better way, but I am pretty sure that this is not optimal. I hope you folks will innovate and take whatever system that you think is the best and then continue to evolve that, because I think this is not working optimally here in the U.S.

There is another problem of overlapping patents. The patent offices are supposed to try not to do this, but the fact is that it is quite common for patents that have been granted to overlap. It happens all the time. It can get to the point where, for a company to try to make a product, they have to try and get through a patent thicket—a bunch of intermeshed patents where it is just impossible to license everything you need to do. This is going to slow down innovation, it is going to cause problems for all the companies involved, because it can be hard even just to figure out what is out there.

The Bayh-Dole legislation here in the U.S. allows the government to “march in” if you have a problem of this kind. But this march in right, I have been told, has never been used by the government. If this interests you, and you want to try and prevent it in the country you are going back to, there is an excellent paper by a Stanford law professor here by the name of Mark Lemley. If you ever get the opportunity to do some innovation in this area back home, pull out that paper, call up Professor Lemley, and get some insights into what you can do.

Other problems in patents in all areas, but certainly in nanotechnology, we have got patents that should not have been issued. We all know that patents are only supposed to be issued for things that are non-obvious. It happens all the time that something that really is pretty obvious gets patented. Here is how I think about the problem. You have government patent offices and they have patent examiners. These are folks with law degrees who do their best to try to prevent bad patents from going through. On the other side, you have extraordinarily well funded law firms with very well paid attorneys, very large numbers of them, who can put in immense amounts of time to try to get something through which perhaps should not be gotten through. It is either too broad or too obvious, but there is tremendous resources on one side and on the other side you have an underpaid patent examiner who has four hours per patent application. It is very clear that this is not an even situation.

There is an arms race going on and there is one side that is terribly crippled, especially since if someone is a really good patent examiner, and he or she would like to move forward in their career, what are they going to do? They jump ship. They are very valuable people, because they know how the system works—they have been inside. If you are running the patent office, either in the U.S. or in your own country, how do you hold good people? I don’t think you can. They have to be very public spirited to keep working under tremendous pressure for poor pay. So there is an arms race going on with one side crippled. How do we even out the sides so that the patents that come out are not so poor quality?

There is some hope, fortunately. There is something called “peer-to-patent project” that you can type into your search engine. There is a project to pull in outside eyes, because the patent examiner needs some help. He or she is overwhelmed, but there are a lot of folks outside the patent office who have a financial interest in preventing the bad patent from issuing. These are all the competition to the folks who are submitting the patent, these may be professionals in the field who are irked by the fact that patents are so poor quality, who would love to participate in the process and try to look at patents that are about to be issued. This peer-to-patent project has already been instituted and is already an experiment within the U.S. patent office. If it goes well, I hope it will be put through as a standard process. You might keep an eye on it. If you think it is working in the U.S., you might consider instituting something like that when you go home, or at least suggesting to the patent folks in your country that you are never going to win against the kinds of odds you are up against—we need to get more eyes on these patent applications.

 

This entry was posted on Tuesday, March 24th, 2009 at 6:00 am and is filed under Christine Peterson, Nanotechnology. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.