In the last few years, the term nanotechnology has become fashionable and the subject of passionate debate as to how the subject should be handled through law and regulation. Nanotechnology is an entirely new development with the potential to bring valuable new benefits on one hand and may also engender unknown and potential very serious new hazards on the other, both for human health and for environment. Lately, nanotechnology has been largely confined to the laboratory with both its potential benefits and its potential risks still substantially speculative rather than actual. But this is about to change, the results of the last decade or so of research are now reaching commercial and industrial level, which highlights the main issue of this article that whether India needs a law to regulate nanotechnology because the recent results address an urgent need of some legal and regulatory provisions for the products emerging through nanotechnology.
Regulatory instruments addressing nanotechnology in industrial sectors from chemical to food and waste are now being adopted at an increasingly rapid rate, regulators in all of the industrialised countries are grappling with the question of how best to minimise any exposure to risks that are barely identified, and at the same time minimise any unnecessary burden on researchers and industry from divergent regulatory approaches around the globe.
Accordingly, this article sets out what is the need for separate Nanotechnological Law in India considering the legal and sociological issues that can be caused if it is left unregulated.
The value of the debate over nanotechnology is undermined by a very real lack of consensus as to exactly what is being talked about when the term is used. The term “nano” is a measurement of size. A nanometre (nm) is a millionth of a millimetre — far too small to be perceived by the eye, and little larger than the individual atoms and molecules which make up all the matter. A nanometre is normally illustrated as being about 1/150000th the width of a human hair, or 1/100,000th the thickness of a sheet of office paper.
The word technology means the applied arts: not pure scientific theories, but the practical applications to which they can be put. It means all those techniques and devices which have been developed over the centuries in order to manipulate the world. Therefore “nanotechnology” is a set of new techniques and devices which are being developed to manipulate the matter on the nanoscale. In this sense, nanotechnology is a toolkit which can be applied to every field of science and technology. Nanotechnology is such a toolkit which because of its size it makes a difference, technology at such a smaller level is what makes it novel. At sizes of .1-100 nm the physical, chemical and biological properties of material can differ in fundamental and often valuable ways from the properties of individual atoms and molecules or bulk matter. However, not all nanoscale materials possess properties which are any different from the properties which the same chemical substance displays in its bulk form.
Nanotechnology raises new legal issues in the areas of property rights and privacy. It also raises intellectual property issues like whether a nanoversion of a prior invention should be patentable. For example, a very small-sized camera (nanoversion) can be patented as it has already been invented before, can just the change in size be patented. Some issues have been discussed hereafter.
- Property and trespass
Settled property and pollution laws may be challenged by the concept of nanospace, nanodevice movement and detectability. Nanospace is any area accessible to nanodevices. Some objects that seem macroscopically solid can be argued if seen at a nanolevel. For example, the wall of a house may appear solid, but any minute crack, even invisible to naked eye, are wide open range in nanospace.
Traditionally property or pollution law analysis fences off nanospace to correspond to macroscopic object boundaries. Under traditional property law analysis, a nanodevice that passes through a wall into a house is trespassing into private property. Treating nanodevices as pollution reaches essentially the same result as the polluter may escape the liability of nuisance and pollution caused because the nanodevices, especially for the average person, might be completely undetectable. There are many such issues like Does a nanodevice interfere with owner property’s right when it cannot be detected and it leaves no trace that it has ever been there? Has a person’s right been violated if a nanodevice enters and leaves the body causing no damage without his knowledge of any such device entering and leaving? How to protect a person if any such device is administered to a person to cause him damage and it leaves the body undetected? On the other side of the issue are the property rights of nanodevice owners. If a person inhales a nanodevice in a public place then goes home, has the person committed the offence of theft under Section 378 Penal Code, 1860? If nanodevice is treated as private property, how will Government enforce those rights? What type of equipment required to prove infringement of such rights?
Another issue is of ownership identification of a nanodevice. Suppose if a person accidently inhales a nanodevice and it leads to the death of that individual, how liability will be imposed as it cannot be affixed without identifying the person who owned or released the nanodevice.
There is an approach to make nanospace a public resource, much like airspace where the public has rights of access subject to regulation. Opening nanospace would allow nanodevices to be mobile without violating individual space. Pollution abatement devices, sewer pipe cleaners, and insect control devices could freely move wherever they needed to go. Individual would need not fear charges of trespass resulting from their mobile nanodevices.
Treating nanospace as airspace eliminates traditional property boundaries issues, but the airspace model give rise to another problem, laws for it can be present anywhere a person’s house, office, bedroom, bathroom which may lead to serious privacy issues. Should nanodevices be allowed to report any discoveries made in nanospace to their owners? Privacy interest are likely to be violated if nanodevice used to spy on a competitor leading to corporate espionage. Many confidential information can be leaked which can ultimately be a threat to the national security of the nation. So law should be made to limit their capabilities of nanodevices so that by the nature of their design they cannot violate privacy or perform some kind of mischief under Section 425 of the Penal Code or perform any undesirable conduct in nanospace.
An invention must overcome two preliminary hurdles to be patentable; it must be novel and non-obvious. Once an invention is found to be novel and non-obvious, the description of the invention must also enable a person skilled in the art to build and use the invention without an unreasonable amount of experimentation. Nanotechnology presents issues when assessing novelty, obviousness, and enablement because many nanostructures are similar to, if not exactly the same as, prior macroscopic-sized inventions. An invention may “inherently” anticipate a later invention even though the patent does not expressly disclose the later invention. In the case of the carbon tubes, if the macroscopic carbon tubes does not specify wall thickness, an examiner may argue that the macroscopic carbon tube inherently anticipates the single-walled nanotube. Such a broad interpretation of inherency has the potential of denying a patent to any nanostructure that is simply a scaled version of macroscopic prior art.
The second hurdle to a patent is non-obviousness, which bars a patent if a new invention is an obvious extension or obvious change from a prior invention. A hallmark of a non-obviousness invention is an invention that looks similar to prior art, but that produces unexpected results. The single?walled carbon nanotubes is non-obvious when compared to the macroscopic carbon tube because the nanotube can carry a billion amps per square centimetre and the macroscopic carbon tube cannot. The high current carrying capacity of the nanotube is an unexpected result so will qualify as non-obvious.
4. Social issues
The negative impacts of nanotechnology have been considered in several areas. The increase in material difference between rich and poor countries is referred to as “nanodivide”. It is anticipated that nanotechnology manufacturing plants, such as nanoelectronics factory, will cost billions of dollars, thereby limiting control of production to the rich nations, resulting in a striking difference between rich and poor. Nanotechnology could result in major disturbances in the financial markets of the countries. The list of potentially malicious and destructive uses of nanotechnology includes gathering information with undetectable sensor delivering nerve agents with nanodevices, infecting people with artificial and deadly viruses, producing undetectable weapons through nanotechnology combined with nanoelectric artificial intelligence. The greatest dangers of nanotechnology designed for harm are unforeseeable and unknown because it is difficult to predict what dangers a new technology may facilitate. Nanoweapons that can be produced secretly and inexpensively and that are difficult to detect or counter could fracture allegiance to nations and will unequivocally be a threat to national security.
Nanotechnology has the potential of impacting segments of society, however because of the unforeseeable impact of the new technologies, it is currently impossible to say whether the affects will be positive or negative. Nanotechnology poses some challenges to current conceptualisation of law. The advent of nanodevices or even simple nanosensors opens the frontier of nanospace. The possibility of objects moving through nanospace challenges our current concepts and laws of property rights and privacy.
With the dynamic society facing technological developments everyday has to amend its laws to cope up with the upcoming technologies so as to maintain social order and peace in India. If we look at an example when removable storage devices were made, they were used to copy data from computers without any consent of the owners of the data. It was an offence of theft, but an essential condition for theft was to take away the property from the possession of the owner but here the data still stayed with the owner so the need for a new law was required to define theft in context with computer software so as to prevent illegal copying of data without the consent of the owner. Similarly law has to be framed with respect to the nanotechnology in India so as to limit the capabilities of nanotechnology by regulating the nature of its design, and to redefine certain offences, concepts, laws of property rights and privacy and many such areas, which if left unregulated may lead to the breakdown of the society and nation at large.
* IVth year student, BA LLB, Christ University, Bangalore, e-mail: firstname.lastname@example.org