Enforcing IP Rights in Nanotechnology: Evidentiary Challenges in Proving Infringement at the Atomic Scale

IP protection poses a serious challenge in nanotechnology as patented inventions in the area are frequently atomic and molecular level structures and processes. This review explores the problems in establishing evidence of infringement in patent litigation in nanotechnology. It explores issues of nanoscale measurements, scientific testing, and access to evidence, expert testimony, confidentiality and interpreting specialist technical information. The review also includes the effect of microscopy and spectroscopy and other analytical techniques on the determination of infringement. It highlights the importance of scientific certainty, technical clarity of patent claims, experts and sound legal processes for the proper protection of innovations in nanotechnology.