Innovation and Nanotechnology

Front matter

Converging Technologies and the End of Intellectual Property

To Amelia

Converging Technologies and the End of Intellectual Property

Index

127 149 176 196 218 227

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VII

Foreword

Sir Harry Kroto

As a child I had quite a lot of interests and in adolescence consciously tried to be as good as possible at several things, including drawing, tennis, and building things out of Meccano in the front room of our house which was my world as well as my school work. I did not really care about being the best — just about being as good as I could be. Meccano I think was quite important and I have written and spoken about it on several occasions as I think it enabled me to develop good manual dexterity, an understanding of engineering structures, and a feeling for the intrinsic differences between various materials from steel to aluminum and plastic. After graduating with degrees in chemistry and becoming a scientist in a university where I carried out research and taught students, my professional work mixed science and technology and also I did a fair amount of graphic design in whatever spare time I had. I also played a lot of tennis. Looking back I think the wide range of interests was a major factor in the cross-disciplinary approach that my research followed. It enabled me — essentially unconsciously — to find ways in which my interests overlapped with those of some of my colleagues and led to key breakthroughs in phosphorus/carbon chemistry and the properties of long linear carbon chains. These early studies led directly to discoveries of new and unexpected large carbon chain molecules in the interstellar medium and ultimately to the discovery of Buckminsterfullerene, Cso (buckyballs), and recently to its discovery in space.

Science seeks to uncover the laws of nature, whereas technology applies that knowledge. However, the two domains are inextricably linked as our experience has shown that new scientific discoveries invariably lead to totally unexpected new applications. The body of scientific knowledge painstakingly assembled by scientists and technologists forms a massive cache upon which successive generations can build. Sometimes, along the way, a new and unexpected breakthrough occurs of sufficient significance that a technological revolution occurs. Most scientists who make major breakthroughs acknowledge the debt their discovery owes to the work of others.

Major breakthroughs invariably depend upon collective action, the free accessibility of prior knowledge, and unselfish adherence to the ethos of science. Unfortunately personal desires for recognition and perhaps

VIII FOREWORD financial gain can easily interfere with progress. Many would have us believe that competition is the mother of invention. Today, many deem it a virtue, and the myth that cut-throat competition is needed for social and technical improvement is now deeply ingrained in our research culture. Certainly, lone geniuses and doggedly hard-working craftsmen driven by the desire to become wealthy have devised groundbreaking improvements, but as with all major advances, the breakthrough could not have been made without free knowledge of previous work. Without all that came before, and unfettered access to the growing body of general knowledge about the workings of the universe, progress would come to a screeching halt.

Interestingly, our molecule, C,, Buckminsterfullerene, has become an iconic cross-disciplinary symbol of the way scientific — in particular chemical — concepts and advances can generate interest and ideas in several other areas from engineering to the arts. It is not just an elegant, highly symmetric form of carbon with many potential possible applications. It is also a structure that captures the imagination of many people from professional architects to very young children. Graphite and diamond were previously the only well-characterized forms of carbon, and the fullerenes and their elongated cousins, the nanotubes, as well as graphene, promise to revolutionize materials sciences. They promise paradigm-shifting applications in the future if we can overcome some rather tricky technological problems. Their most interesting promise lies in their applications in nanotechnology. Research in the field of fullerene science is resulting in approximately 1,000 papers each year as researchers around the world uncover new properties and devise new applications. These new properties may well form the basis of an entirely new field of manufacturing, and the eventual realization of true nanoscale manufacturing, that is bottom-up assembly of the next generation of complex devices with advanced function.

Although there were claims of prior knowledge relating to the discovery of Cso; they had no real credibility and certainly no intellectual validity. Thus scientists have been free to experiment with fullerenes without the impediment of restrictive patent issues which often hold researchers, especially in industry, to ransom. I personally did not get involved with any patents on either the creation of C,, or the molecule itself nor had I any interest in such. I have no doubt that attempts to monopolize the use of the knowledge we have gained about how the natural and physical worlds work only stand in the way of progress.

FOREWORD Ix

It is a myth that competition is necessary for progress and we must find a better way to encourage young people to explore the way Nature works and use any knowledge gained only for the benefit of society. David Koepsell in this book explores the possibility that the emergence of nanotechnology will overturn previous ideas about the nature of all technical artifacts. He suggests that the ethos of science, by which each new discovery serves as the basis for the next, aided and abetted by intellectual openness, can be a more effective catalyst of technological advance. He argues that the institutions of intellectual property law are not just flawed and harmful, but illogical, unnecessary, and ultimately an impediment to innovation. The convergence of technologies embodied by nanotechnology, in what he calls nanowares (which encompass a range of technologies that are decentralizing modes of production), reveals the flaws. While he attempts to form a theory of artifacts based on first principles, he also examines the practical ways in which innovators in nanowares are adopting open methods of innovation, and are avoiding the pitfalls engendered by intellectual property issues.

Nanotechnology has a very long way to go before the paradigm-shifting technologies inherent in the properties of materials like fullerenes can be implemented. However, as described in this book, there are numerous grassroots approaches, as well as foundational work in the underlying sciences, that are paving the way. Even if Koepsell’s notion of the death of IP, as revealed through our technology, seems premature, it is an important argument that we should consider carefully and recognize how legal issues are often part of the domain of discovery as well as invention. Ensuring that productive technologies emerge from basic science and enter the marketplace smoothly requires incentives to be carefully balanced in ways that institutions have often failed to achieve. If, as he argues, institutional strategies are so fundamentally flawed, and their collapse in the wake of nanowares is imminent, then researchers and innovators alike should look carefully at alternative approaches as he proposes. He argues that his approach, if adopted, will encourage basic science more effectively and lead to wondrous new technologies.

Sir Harry Kroto was joint winner of the Nobel Prize for chemistry, 1996.

Preface

I began exploring the nature of intellectual property (IP) while working on my PhD in philosophy and finalizing my law degree in 1995. The result was my first book, The Ontology of Cyberspace: Law, Philosophy, and the Future of Intellectual Property, and in it I called for the creation of a single, unified IP regime modeled upon copyright, but with shorter terms of protection. I believed that information and communication technologies (ICT) revealed that the old dichotomy between patent and copyright was unfounded, and suggested that copyrights were cheaper, involved no significant governmental involvement, and would suffice for protecting software.

After receiving my PhD, I practiced law, taught in a law school, worked in a software company, headed an international not-for-profit, did a postdoctoral fellowship at Yale University, and finally returned to teaching full time. Throughout these adventures, I have maintained an interest in IP law, its theoretical underpinnings, and its relation to innovation. Along the way I wrote another book, Who Owns You? The Corporate Gold Rush to Patent Your Genes, which explored ethical and ontological arguments against patenting unmodified genes. Because of that book, I learned that public philosophy has a role to play in developing institutions, and in public policy debate. Just a few months after the release of Who Owns You?, the Public Patent Foundation and the ACLU spearheaded a lawsuit against Myriad, a Utah-based corporation that owns patents on the ‘breast cancer genes’ (BRCA 1 and 2), or rather mutations to two genes in all humans that, when present, indicate a significantly increased likelihood of getting breast cancer. Many of the same arguments I had made in my book regarding the injustice of obtaining patents on naturally occurring, unmodified genes, and the pernicious effects on innovation caused by such patents, were at the heart of the lawsuit. As of this date, the plaintiffs have won in the district court, where Judge Sweet found that the patents on those genes are invalid attempts to monopolize natural products. That case will doubtless work its way up eventually to the Supreme Court of the United States.’ The lawsuit affects millions of women (and men), and illustrates that issues of patent eligibility are not mere metaphysical ponderings. Women whose health insurance does not cover such diagnostic tests are now forced to pay more than US$3000.00 for a test because Myriad has a monopoly. It was with that

PREFACE XI suit, and upon meeting people directly affected and involved by this fight, that I became aware of the gravity of a patent system gone out of control. I also learned that, when cornered, the patent industry will lash out and dig in.

The ‘patent industry’ is what I call the entrenched interests not only of corporations and individuals who profit by the state-sanctioned, artificial monopolies of patent and copyright, but also the tens of thousands of patent professionals, bureaucrats, and their employees engaged daily in the patent system. They have tremendous resources, lobby groups, PR campaigns, and political influence to ensure their continuation, and if possible, the extension of their domain. Every patent that is filed is profitable ... to the patent attorneys who do the filing. Meanwhile, somewhere between 2 and 6 percent of patents earn their costs back and make a profit for their inventors. The rest are worthless, or even arguably a drag on innovation. The patent industry naturally lashed out at the ACLU, the Public Patent Foundation, and activists who voiced their support for the case against Myriad.

The past 100 years have seen the growth of this industry, and any threat to its dominance will doubtless be attacked. I too was a subject of their ire, and even while philosophers, activists, the mainstream press, and even a handful of attorneys embraced the arguments I made in Who Owns You?, negative reviews came almost exclusively from patent professionals, except for the iconoclastic Stephan Kinsella, who is a practicing patent attorney who fully understands the problems we will delve into more fully in this book. I expect these patent professionals will be similarly uninspired by the scenarios I will paint here, and they will likely feel threatened by the future I predict.

Both of my past books included calls for action, for public policy change, and for modification of current IP schemes. This book will not. Rather, here I will explain why the ultimate demise of IP is inevitable, why the technology I call “nanowares” makes that so, and what innovators can do to prepare for it. I will discuss some of the ethical implications involved with nanowares, both within and outside the institutions of IP law, the economic consequences of its demise, and what I believe that nature of our relationships to artifacts really is. But as opposed to my past work, this is an attempt at more or less purely descriptive metaphysics, with some practical advice as to how to handle a tricky, transitional phase as institutions evolve and begin to better reflect reality.

XII PREFACE

Along the way, I will address some of the more commonly occurring concerns in nanowares, including potential risks, security concerns, and what duties scientists and innovators might owe to the public. But primarily, this book is an argument about the nature of types of expressions (artifacts), historically perceived needs to protect those artifacts through legal institutions, and what those institutions imply. I will include some brief case studies, to put into perspective the philosophical issues I am trying to elucidate, and to provide food for thought about how innovators and scientists can work to ensure that nanowares become a fully realized technology, and that their ultimate benefits are finally achieved.

This book is aimed primarily at those who are seeking to achieve the full potential of nanowares, either in foundational work in the underlying science and technology, trying to ultimately build molecular nanotechnology (MNT) components or systems, or those who are working at the grassroots to bring ‘desktop’ fabrication technologies to the masses. Self-replicating replicators, or cheap, home-made, and accurate three-dimensional printers which anyone can use to fabricate working prototypes of new things, will help to do for the real world of physical objects and innovation what the internet has done for innovators in video, music, and software. New markets can flourish, and market entry will be unimpeded by the need for capital that hinders innovation for all but the well-capitalized. This is the future I hope to see, and that is, as I will argue, inevitable. It is also the future that will completely and finally undo IP. People actually working in these fields know this is true, and they are already embracing institutions and approaches to the science and the technology to ensure that this future will occur.

This book is for them, and those who want to see them achieve a world without scarcity. I hope it provides some theoretical justification, and perhaps a bit of insight into the trends I will discuss, and why they are not just inevitable, but good.

David Koepsell Leidschendam, The Netherlands, 10 September 2010

XIII

Acknowledgments

I am indebted as always to more people than I will recall or can name, though I will try my best to be complete. My wife Vanessa has encouraged and supported my work emotionally, intellectually, and physically, keeping me fed, keeping me thinking, and doing her best to keep me sane. I am eternally grateful to her. My colleagues at the Delft University of Technology have spurred my thinking with their questions, challenges, prodding, and support. I am especially thankful to Jeroen van den Hoven, Peter Kroes, Sabine Roeser, Ibo van de Poel, Behnam Taebi, Nicole Vincent, Floris Kreiken, Hu Mingyan, Maarten Fraansen, Pieter Vermass, and Rossitza Rousseva, all in no particular order, and among many others. Stephan Kinsella, David Levine, and Michele Boldrin have inspired much of this work, and I am thankful for their knowledge and e-mail correspondence. As always, my parents have provided emotional and editorial support as faithful proofreaders and honest critics. Thanks are due to Shane Wagman, who helped research alternative forms of protection for artists, and wrote up the brief case studies included about these alternatives. I am thankful to the Synth-ethics team, including Patricia Osseweijer, Julian Kinderlerer, Armin Grunwald, Laurens Landeweerd, John Weckert, Seamus Miller, Michael Selgelid, Elena Pariotti, Maria Assunta Piccinni, Christopher Coenen, and Hans-Jürgen Link. My dear dog Luna kept me company while I wrote, and walking her provided additional time for contemplation. And finally, my daughter, to whom this book is dedicated, whose imminence helped keep me on track, and whose promise inspires me to do what I can to make the world a better place as best I know how.

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INTRODUCTION

Nanowares: Science Fiction Futures

and Present Potentials

Consider this: everything that surrounds you is matter. Matter comprises every object in your sight, everything your body is composed of, processes, excretes, and thinks. Yes, every thought in your head is dependent upon matter as well, and as we know because of Albert Einstein, even energy is matter in another form. The atomic theory, which posited that the universe is composed of very tiny bits and pieces, each of which is further composed of tinier bits and pieces, is one of the most successful theories in science, having been confirmed by a hundred years of observation. The bits and pieces that compose the universe are the atoms, of various sizes and qualities, that we are now all familiar with from the Periodic Table of Elements. In the mid-twentieth century, as the atomic theory continued to be successfully confirmed, and humans grew increasingly capable of seeing and doing things with the world of the very, very small, some forward-thinking scientists began to wonder whether there were physical limits to the ability to manipulate atoms, and if not, what such limits might mean for our abilities to remake the world around us.

If, they thought, we could manipulate matter at the atomic level (at the ‘nanoscale’, a scale measuring one to one hundred nanometers, or one-billionth of a meter), then conceivably, we could develop very tiny machines that could in turn build things for us at both the micro- and macro-scales. Imagine if you could construct nanoscale robots (essentially, the size of large molecules) and instruct them to build a computer, or a car, or anything you desired, from readily available raw materials. Or consider the possibilities of using such nanoscale machines to combat diseases or parasites, viruses or cancers in the body, eliminating the need for the scattershot or blunderbuss approaches of much of modern medicine. Or perhaps we could develop radical new materials, incredibly strong, capable of mending themselves, light, efficient, or even imbued with properties we only dream of in science fiction. The possibilities of nanotechnology, which is the application to engineering artifacts of our increasing knowledge about physics at the nanoscale, are wide open.

The history of technology in general is a history fueled largely by the science of slow miniaturization and incrementally better tools for manipulating things at ever smaller scales. The past hundred years of electronics demonstrate this evolution, as vacuum tubes became transistors, and as silicon chips became quantum processors. The science of the small, from which the technology of computing has remarkably benefited, is now reaching out beyond the two-dimensional world of silicon wafers, and promises to remake the world of more-ordinary things, the hardware that composes the rest of our technology and human artifacts, and that may revolutionize the way we interact with our environment and tools. The history of computing serves as not only a catalyst for the coming age of nanotechnology, in which we will be able to begin to manipulate the world around us so that we can build remarkable new tools literally from their constituent atoms, but also as a suitable departure point for a discussion of the ways in which nanotech will alter the ways we innovate, and how we both encourage and protect innovation.

For about the past two hundred years, we have split the world into two. On the one side stood our artistic and creative artifacts, and on the other our utilitarian inventions. This dichotomy has been increasingly important, and lately challenged, as our artifacts became more closely tied to digital expressions and electronic media. Computerization, brought about largely through substantial breakthroughs in miniaturization, ushered in a new age of innovation in which machines and aesthetic expressions began to merge. The legal paradigm encompassed by intellectual property (IP) law, and embraced by a larger culture, began to break down.' Machines and aesthetic expressions no longer seemed so distinct. How can we learn from the mis-steps and impediments posed by the failing two-world paradigm, and build new institutions, both legal and cultural, that are not only philosophically sound, but that can encourage the sort of innovation promised by futuristic nanotechnology?

This book comprises an argument that (a) current schemes of IP protection are not only pragmatically incapable of being applied to nanotechnology,? but also theoretically inadequate to promote modern innovation, and (b) nanotechnology reveals that our relationships to our artifacts have been misunderstood, and poorly applied through laws that were once considered necessary to promote innovation, but which now prove to be only impediments. This argument is made by looking first at general trends in the history of innovation, and the technologies and institutions that have enabled and sped it in the past hundred years, converging now with nanotechnology in its broadest sense; and then looking at the first principles involved in our theories of IP, and criticizing their bases as well as effects. Finally, a new paradigm will be offered, based upon methods and processes being adapted in both the technologies of innovation and new forms of protection being developed at the grassroots, eschewing old forms of monopoly, and embracing both the spirit and methods of open science and innovation.

But first, well look at the general trends of industrialization, miniaturization, delocalized production, and of course, the ‘convergence’ that all of this is centering upon in modern and ‘futuristic’ nanotechnology.

From Arrowhead to Atom

Often, when we hear the term ‘artifact’ we think of ancient tools discovered in strata of ancient soil. But the term artifact simply means anything purposely created by humans in some enduring medium. Thus, a song is not an artifact when sung, since it drifts away into the aether never to be heard beyond its immediate performance, even though it is intentionally created by humans. However, an ancient recording of a song on a 78 rpm platter would be an artifact. A skeleton is not an artifact, until someone carves something decorative or useful upon it or arranges it into some purposeful position.’

Proto-human artifacts date back millions of years. The archeological record holds increasingly older surprises as we find that ancient humans have been turning found objects into tools at earlier dates than we even recently suspected. The first human artifacts came about the moment some early proto-human mixed labor with a found object with the intent to create something new. This is the genesis of craft, of art, of technology. Intention, as we shall see is critical, and is what makes artifacts different from accidents.

The history of human art slopes gradually upward from the first-fashioned arrowhead or similar tool, slowly tracing a halting curve toward the modern industrial age, becoming hyperbolic in the last fifty or so years. Most of the milestones upon that curve involved changes in the manner and means of production. The course of that history will be sketched here only in brief, and in broad strokes, because the way we evolved from chipping away at flint and bones, to being able to assemble machines from the atomic scale on up, illustrates the critical change that is posed by futuristic nanotechnology to our assumptions regarding our relations to our artifacts, and the ways we have come to encourage innovation through institutions.

Ancient technology was decentralized. Even while the manner of producing woven baskets, clay pots, ceramics, and eventually metal-ware demanded increasing skills and specialized knowledge, the artisans who made the crafts that formed our most ancient technologies created their goods by laborious, local, and more-or-less ad hoc manners. In other words, when an arrowhead was needed, it was fashioned most likely by the end-user, and perhaps in some surplus as necessary for an upcoming hunt. Perhaps surpluses were traded for goods produced by those with other skills and arts, and some form of ancient trade began to create specialties. But this sort of barter cannot be mistaken for a market, and technologies not otherwise impelled by more than mere necessity (no profit motive, for instance) grew only incrementally with the advent of new necessities. Thus, as ice ages waxed, new needs for clothing impelled the creation of new, local arts that could meet new needs and sustain life.‘

This mode of production and dissemination of technology marks the first major epoch of technology. Driven by necessity, requiring only modest skills, and only very little in the way of specialization, the first human artifacts changed very little over the course of humanity’s first million or so years. Up until about 10,000 years ago, in the Paleolithic or ‘Stone’ age, human tools were created as needed, from simple and available materials, and show only a modest degree of slowly increasing artistry. Human arts in general seem to have fulfilled the distinct purpose of survival for that first million years, aiding with the hunt, both materially and spiritually, as humans wandered from place to place. It was only with the invention of agriculture, and the advent of the Copper and Bronze Ages about 10,000 years ago, that human technology began to advance significantly, and the rate of change began to increase.

With agriculture came an end, more or less, to nomadic life. And with a more stable lifestyle, and the beginning of what we might call culture or even civilization, came the ability to specialize tasks more discretely, and to build more permanent means for creating artifacts or techniques. It is interesting to note that there are two very different and ancient means of creating an artifact, both of which emerge very early on, but one of which comes to surpass the other. Things can be made by either (a) taking something away from an existing thing (by chipping or carving bits away), or (b) ‘building’ a thing from some formless mass. For example, a piece of flint can be chipped away until an arrowhead remains, or a clay pot can be molded from formless clay into a thing with form and function. Most of the artifacts we are surrounded by today fall into the second category, and it is the paradigm behind many ideas for creating nanowares, by which anything could be ‘built’ from the bottom-up, and eventually atom-by-atom. These two basic means of producing artifacts will be discussed in more detail as we begin later on to delve a bit into the metaphysics of nanotechnology, but it’s also worthy of note that the move from a to b was impelled and made possible by a shift in the necessities driving the creation of artifacts, and the modes and means of production that became available as humans began to settle into communities.

As nomads settled into stable groups, villages, towns, cities, etc., with cultures, so too did technique and artifacts begin to flourish. Without the challenge of everyday necessity impelling and permitting only that technology which affords immediate survival, artisans and craftspersons could commit more time, more resources, and more thought to developing tools meant to fulfill not just needs, but interests. Moreover, while the flexibility of crafts that rely upon found objects becoming fashioned into useful goods is low, new materials, primarily metals, pottery, and ceramics make building things from scratch a preferred and much more flexible mode of creation.

The techniques available for crafting new things out of flexible media (as we'll call, for now, clay, metal, and other media from which things can be built ‘up’, rather than cut ‘down’) could further be perfected as leisure time increased. As artisans became more adept at a particular, chosen technique, specialization became possible. Categories of craftspersons could thus improve in their practiced techniques as artisans need not be ‘jacks of all trades’. All of which forms the basis for the development of an economy, as specialists learn to trade and barter their arts with others, producing their creations in strategic surpluses, affording themselves the option of trading their goods for those of others. Around 5,000 years ago, the first writing systems emerged out of the need to track trades of goods, and the wheel became adapted for carrying goods across distances, between various trade centers, expanding the scope of what we’d now call ‘markets’ for goods.5 The emergence of trade and barter, the development of dispersed markets, and the luxury of specialization required certain manners of production, storage, and dissemination of goods. Surpluses became a strategic necessity, replacing the production of things as needed with a system by which one could begin to profit, and accumulate wealth, enabling the slow emergence of more modern economies.°

With specialization, crafts could develop into trades. Trades then developed their own cultures, policing their ranks, and ensuring market domination over a territory. This marks the next stage of the development of human technologies and markets, as arts became specialized, and the first, nascent form of ‘IP’ protection began to emerge. Secret-keeping, enforced through trade associations and guilds, is the first means by which those who practiced useful arts sought to control their markets. As technologies became complex enough to require training to produce or practice, and too difficult or time consuming to easily ‘reverse-engineer’, secret-keeping became an effective means to ensure that trades could dictate higher prices for their goods by policing the market and preventing undue competition. This in turn propelled the continued perfection of technologies, to prevent reverse-engineering, and to help ensure market domination by a particular trade.” Specialization and trades came to dominate the emerging market for artifacts for much of the past two to four millennia. But the growth of a new manner of acquiring knowledge, beyond the scholastic method (in which masters taught apprentices, and knowledge was kept obscure and secret from the uneducated masses), began to succeed where scholasticism failed, and thus began to assume primacy as humankind’s foremost method of inquiry. Science slowly emerged as the dominant epistemological paradigm in the West during the Renaissance and Enlightenment, and led Europe and the Americas into the industrial revolution beginning in the late 1700s.

Science demands unfettered inquiry into the workings of nature, and replaces the confidence previously demanded over rote knowledge with a practiced skepticism, and ongoing investigation. With the rise of the age of science came the need to develop new means of treating information. Scientific investigations conducted by ‘natural philosophers’ could only be conducted in full view, out in the open, with results published in meetings of scientific societies and their journals. Supplanting secret-keeping and obscurantism, the full sunlight of public and peer scrutiny could begin to continually cleanse false assumptions and beliefs, and help to perfect theories about the workings of the world.® Science demanded disclosure, where trades and arts often encouraged secrets. And so as natural philosophers began to disseminate the results of their investigations into nature, new forms of trade, art, and industry began to emerge, as well as the demand for new means of protection in the absence of secrecy. Thus, as the scientific age was dawning, and helping to fuel a new technological revolution, modern forms of IP protection such as patents and copyrights emerged as states sought to encourage the development of the aesthetic and useful arts. By granting to authors and inventors a monopoly over the practice of their art, as long as they brought forth new and useful inventions (or for artistic works, as long as they were new), nation states helped to attract productive and inventive artisans and trades into their borders. These forms of state monopoly also enabled further centralization of trades and industries, as technologies now could become immune from the possibility of ‘reverse-engineering’ and competitors could be kept at bay by the force of law. This sort of state-sanctioned centralization and monopoly helped build the industrial revolution (by the account of many historians and economists, although this assumption has lately been challenged) as investors now could commodify new technologies free from the threat of direct competition, secure in the safe harbor of a state-supported monopoly over the practice of a useful art for a period of time.