Home > Nanotechnology Columns > UAlbany College of Nanoscale Science and Engineering > Problem Recognition in Legal Analyses Involving Nanotechnology
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Brenda Lubrano-Birken General Counsel & Director of Legal Services UAlbany College of Nanoscale Science and Engineering |
Abstract:
Amid the ever-increasing innovation and opportunity that result from the integration of nanotechnology across virtually every industry, the ability to incorporate those innovations and take advantage of such prospects is key. Whether the business model is a start-up, established company or educational/research and development facility, it is also equally important to include a healthy dose of problem recognition at various steps along the way, which is vital both for legal purposes and for developing microstrategies within an organization.
December 21st, 2007
Problem Recognition in Legal Analyses Involving Nanotechnology
Amid the ever-increasing innovation and opportunity that result from the integration of nanotechnology across virtually every industry, the ability to incorporate those innovations and take advantage of such prospects is key. Whether the business model is a start-up, established company or educational/research and development facility, it is also equally important to include a healthy dose of problem recognition at various steps along the way, which is vital both for legal purposes and for developing microstrategies within an organization.
Problem recognition is not new to legal analysis, but the changes and innovations in materials, properties, applications and innovations involving nanotechnology, or technologies at the nanoscale, requires casting a wider net than ever before when starting the analyses. When addressing legal considerations involving nanotechnology for purposes of successful contracting and establishing and evaluating rights, obligations, risks and liability issues, the problem recognition process should begin with big picture questions, including the desired results/potentially undesirable results/byproducts, worst case scenarios, and/or innocuous or dismissible red herrings that result from the confluence of ingredients (i.e. people, technology, processes, materials, equipment and integration).
One example could involve dealing with a nanotechnology-based device performing the same function, but with increased performance, as another conventional or low technology-based device. Even though the evaluation concerns a known function, the device may have significantly different properties and may have the ability to affect other aspects of the work/surroundings in ways that the traditional material did not. Since we are talking about a device that is completely different for the application than what traditional science previously afforded, a new or perhaps overly comprehensive set of questions should be asked to make sure one understands what the issues are that deserve attention and evaluation. Will there be a conflict between materials being used? Will the acceptable margin of defects in specifications be applicable? How will it be determined whether or not fault, and therefore damages, will be allocable given the methods involved? Will there be potential for human error that wasn't previously an issue? Will there be unanticipated side effects to correct as part of the standard process? These are just a few of the questions that may arise when dealing with issues in nanotechnology, whether device, materials, equipment, facilities, or infrastructure.
Another example of an area deserving an extra dose of problem recognition involves the purchase and use of specialty chemical and gases. When dealing with specialty chemicals for a particular application, you may be receiving certification as to specifications and other improved methods for application and use, but you'll also want to consider the following: whether levels of impurities can affect other surrounding items; what other chemicals are being used by other parties and may be subject to unwanted combination; whether remedies will be suitable given the intended use and what, if any confidentiality and proprietary issues are raised. A similar evaluation may be triggered when dealing with chemicals, tools and devices used in the abatement of effluent, which is prevalent in cleanrooms.
Much of what is necessary in addressing legal issues concerning products, processes and contracts will be based on an understanding of what components are involved, and how some particular device or series of devices work. But perhaps the singlemost area of importance for the problem recognition analyses is two-fold--first considering whether, or to what extent, liability may be able to be determined or attributed to any given actor or action and second, evaluating the contract remedies in light of the outcome of the first part. It is foreseeable that establishing liability in some of the emerging and unknown applications of nanotechnology will evolve in the same way nanotechnology does.
Interestingly, when dealing with complex issues involving or peripherally related to nanotechnology, even the no- or low-technology issues may present themselves as unanticipated and significant dangers. One example of this involves the ampoules and cylinders that contain various gasses used in semiconductor applications. Analysis should focus not only on the purity level of the gas, conversion, pressure and flow, but also the integrity of the containers, as faulty equipment and/or frequency of replacement may pose unanticipated risks to persons and property.
Whether the technology behaves differently due to unique material properties or behaves "unconventionally" due to different configuration, integration, applications or size, nanotechnology in general is a perfect example of traditional and contemporary technological advances combining to produce stages of transformation for the present time. The new and unknown areas of nanotechnology innovations and potential problems are relative, and with each stage of development there will be created a historical continuum making various aspects more conventional. Until we see nanotechnology producing a history and reliability across a larger and longer spectrum, keeping the problem recognition mind-set should be a standard practice.
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