Nanotechnology and the Tragedy of the Anticommons: Towards a Strict Utility Requirement

Nanotechnology has been described as a transformative technology that will bring about the next industrial revolution. Over the last few decades, scientists and their research partners have acquired nanotechnology patents in a manner resembling a gold rush. The nanotechnology gold rush has specifically targeted nanomaterials, nanotechnology’s building blocks. Many of the patents that have been granted for nanomaterials are broad, general patents encompassing basic research. A driving force behind the patenting of basic research in nanotechnology was the development-oriented approach to patent rights. This approach emerged in the 1960s and 1970s, and supported the widespread patenting of basic research in the 1980s and 1990s. Development-oriented theorists argued that the most efficient way to achieve the development and commercialization of research is to grant broad patents on research prospects shortly after their discovery. Beginning in 1998 with the publication of Michael A. Heller’s “The Tragedy of the Anticommons,” the beliefs held by development-oriented theorists have been challenged by proponents of “anticommons theory.” In particular, anticommons theorists questioned whether granting broad patents on research prospects necessarily leads to the efficient development of research. Anticommons theorists argued that this assumption fails to take into account the possibility that granting patents on research prospects could stifle development through the phenomenon of the tragedy of the anticommons. This article will examine the contemporary nanotechnology patent landscape in the United States of America to determine whether the broad patenting of nanomaterials has led to the creation of an anticommons. It will also examine whether this anticommons is likely to turn tragic, stifling innovation in nanotechnology. This article proposes the adoption of a strict utility requirement as a solution to the problems posed by the tragedy of the anticommons in nanotechnology in the US