© 2002, Gallagher & Dawsey Co., LPA
One of the hottest intellectual property sectors in 2002 and beyond is
the field of micro devices. This field includes nanotechnology and
microelectromechanical systems (MEMS). Nanotechnology is an
interdisciplinary area of science focused on the molecular level to
create large structures atom by atom with fundamentally new properties
and functions. Extraordinary devices can be created using
nanotechnology by capitalizing on the well known physical properties
of atoms and molecules. On the other hand, MEMS are the integration of
electrical and mechanical components on a microscale to form
The annual growth in the number of nanotechnology and MEMS patents
issued in the U.S. has averaged approximately 40% between 1996 and
2001. This growth is expected to continue for the foreseeable future
as micro devices become less expensive and more commercially
available. However, the road to achieving patents on micro devices
will become more difficult with each passing year and is not lined
with roses, as there are several hurdles that must be cleared.
Patentability is defined in Section 101 of Title 35 of the United
States Code. In essence it states that one who invents or discovers
any new and useful process, machine, manufacture, or composition of
matter, or any new and useful improvement thereof, may obtain a patent
therefore, subject to certain conditions and requirements of the code.
A stumbling block to many micro device patent applications is the
nonobviousness requirement. An invention must be sufficiently
different from prior inventions such that the invention sought to be
patented would not be "obvious," at the time the invention was made,
to one of ordinary skill in the field of the invention. If the
invention would have been obvious then no patent will issue.
Determining what qualifies as relevant prior art is the key to
Relevant prior art is prior art that is in the field of the invention
or is reasonably pertinent to the particular problem that the
invention is designed to overcome. For instance, the hundreds of
patents that have issued for steam engines over the last century would
not likely be relevant prior art for a steam engine within a MEMS.
Similarly, mechanical gears have been the subject of patent
applications since the origins of the U.S. patent system, however such
common mechanical gears are not likely relevant prior art for a gear
constructed from individual molecules.
As application of micro devices becomes more widespread it will be
increasingly difficult to argue that certain common solutions to
"macro" problems would not be obvious to one of ordinary skill in
nanotechnology or MEMS to solve similar "micro" problems. However, in
the short term there will likely be a boom of micro device patents
issued as the glut of common "macro" mechanical and electrical devices
are applied in the micro environment. Additionally, the revolution in
design of new nanosystems and MEMS will likely be one of the fastest
growing areas of intellectual property protection.
More information on micro devices, along with interesting photographs
and videos, may be found on the Sandia National Laboratories website