Nanotechnology: A New Force For Human Betterment - Part I

Tuesday, March 2, 2010 - 00:00

The Editor interviews John R. Bashaw , Partner in the New Haven office, William S. Rogers Jr., Partner in the Boston office and Joseph Clark, Counsel in the Florham Park, New Jersey office of Day Pitney LLP.

Editor: How would you describe the subject matter that nanotechnology covers?

Rogers: First, everyone asks "what is nanotechnology?" Engineered nanotechnology is the creation of particles that are 1 to 100 nanometers in size. To put it into perspective, a human hair is 80,000 nanometers in width. So you are talking about the creation of very, very small particles. What makes nanoparticles so interesting is the fact that they can have chemical and physical properties that are completely different from the exact same particle in its larger form.

Nanotechnology covers an extremely broad array of subject matter and industry areas. Within each industry it has dozens and dozens of existing applications and has many more as yet unknown applications. People describe nanotechnology as an enabling technology that enhances many of our existing technologies. Nanotechnology affects existing industries by improving their efficiency and the efficacy of their processes as well as the longevity and other underlying characteristics of materials that are used in existing products. For example, nanotechnology can be used to create much smaller components on the surface of silicon integrated circuits. It opens the doors to computer design of objects on a nano scale that actually will perform better than existing technologies. Boeing's 787 Dream Liner has a nano composite fuselage rather one composed of a metal alloy, which is lighter and stronger, making the plane arguably safer, lighter and more fuel efficient than comparable models. We have medical devices designed with nanotechnology coatings that make them impervious to bacterial growth which will reduce the risk of infection. Right now there are over 1,000 consumer products in the market that use nano materials, a number which is doubling rapidly, and there are many commercial applications for nano materials that are coming down the pike. In medical applications alone the potential for improving human health is dramatic.

Editor: Where do you see the role of your firm in supplying legal skills and know-how as this new industry takes off?

Bashaw: There are projections that this industry will be a $1 trillion global industry by 2015. Nanotechnology promises to trigger a second industrial revolution because it permeates so many different types of industries. You could name just about any industry out there and it is going to have some kind of a nanotechnology component.

In light of this, it is an industry where our firm can have a positive impact. With offices from Washington to Boston, we are located within some of the hot spots for industrial applications of nanotech.

With close to 330 attorneys we have a very broad-based group of talented people in many different practice areas. As a result, we can provide services in the nanotechnology area beginning with the formation of companies, helping them get capital to grow and invest, regulatory compliance, health and safety, employment, litigation, tax issues and IP. We have a deep, talented and experienced pool to cover all of those areas.

When we went to our executive committee and the partnership and explained what our potential was in the nanotech area and how well the talents of the firm's lawyers fit the needs of our clients and potential clients, the firm encouraged us to move forward in this area and pledged to invest resources behind our efforts.

Editor: Tell us about Day Pitney's multi-disciplinary Nanotechnology practice group.

Bashaw: Bill, Joe and I decided to build on a base that other partners in the firm such as Jim Rotondo in our litigation department and Rick Harris, who does licensing and intellectual property work, had established a couple of years ago. They viewed nanotechnology as an area of great interest to clients and potential clients and one that required specialized legal skills.

Bill joined the firm this past summer and brought with him some nanotechnology experience as well as products liability and litigation experience and certainly a great deal of enthusiasm and excitement for the area. Joe brings primarily insurance but also products liability and construction litigation experience. I have a very broad science background and have long been following nanotechnology from the science perspective. I bring to the table environmental and regulatory compliance experience.

In midsummer, the three of us decided we can build on the base that had already been established at the firm. Since that time we have incorporated many more attorneys into the Nanotechnology Practice Group and we have developed a blog, www.thenanonewswire.com, which has about 55 blog items to date.

The blog identifies areas of interest that are of a legal nature and it includes science, policy and new developments in technology. We update it regularly. To distinguish our blog from other blogs, we include what we call "thought pieces" - such as one on corporate disclosure which we just published. Blog items not only cause Day Pitney attorneys to drill deeper into topics affecting people in the nanotech arena, but we also invite regulators, experts in nanotechnology companies, toxicologists, insurance experts and people in other affected areas to be guest bloggers. In addition, we have done two webinars - one in December on health and safety in cooperation with Gradient Corporation, one of our toxicology partners out of Cambridge, Massachusetts, and one recently in January on warnings about nanotechnology products with Exponent Incorporated of Chicago and Seattle. We've had a great audience for our webinars and we intend on creating a regular series of Webinars on nanotech topics.

In addition, we have drafted articles on the insurance implications of nanotechnology products and regulation of nanomaterials. Some of our articles have appeared in peer-reviewed journals such as Nanotechnology Law & Business .

Our nanotechnology practice group includes attorneys from the following practice groups: environmental and regulatory compliance, intellectual property, licensing, energy, insurance, products liability, litigation and employment law. I would be remiss if I failed to include among the leaders, Tom Chase out of our Boston office, who brings to us a wide diversity of experience in the corporate area and Rick Harris, who is in the New Haven office and who has been involved in the nano area for many years doing licensing work and some intellectual property work . We have a deep, talented and diverse team.

Editor: What practical applications do you see for products on the market today? What products have thus far been developed using nanotechnology?

Clark: For anyone who is interested, the Woodrow Wilson Institute maintains an inventory of existing consumer products as part of its project on emerging nanotechnologies at www.nanotechproject.org/inventories/consumer. Currently, there are about a thousand different products, including a 16 megabyte flash memory from Samsung, a personal watercraft from Yamaha, and a fishing shirt from Essex shirt company. What this demonstrates is that nanotechnology, as an enabling technology, has broad-based application and can make objects lighter, stronger, faster or otherwise improve them because of matter's unique properties at the nanoscale. One use of nanotechnology that I believe is particularly relevant is its use in improving energy storage capabilities of batteries, capacitors, and the like. Without better storage, increased production of electricity is of limited utility, and nanotechnology may prove to be just the thing for solving energy storage problems. Additionally, nanotechnology has a broad spectrum of potential applications in medicine, and there is currently a great deal of research being conducted to determine whether nanoenabled cancer treatments are more effective than currently existing treatments. As more research is done, I believe that we will see advancements in medicine and science, due to nanotechnology, that will surprise us all.

Editor: How does nanotechnology figure in the national healthcare debate?

Rogers: There are several ways to view it. There has been a recent National Nanotechnology Safety Bill introduced in the House whose focus is to prevent nano materials from adding to the nation's healthcare problems. The sentiment here is to understand how nanoparticles behave not only in our bodies but in our environment. How are these materials being dispensed and disposed of so that these materials are not going to adversely affect our environment and consequently our own health. But the other aspect of nanotechnology and health care is the potential it offers for medical treatments and more rapid and effective cures, thereby reducing the costs to our society for treating certain cancers and other conditions. Cancer is the principle focus of a great deal of research right now. What people are trying to do is design and engineer nano materials that can actually deliver drugs at the molecular level to very focalized areas of the body - to the cancerous cells where it is going to have the most therapeutic effect (unlike our traditional treatment of offering massive systemic doses of drugs with harmful side effects). There is also talk of developing nano materials that can actually repair damage to the body, such as dissolving plaque formations in the arteries. These advances are in their infancy, which is why you are seeing a lot of investment and R&D in this area.

Bashaw: We at Day Pitney are determined to learn the nanotechnology industry by reading alerts on the Internet every single day. One of our corporate associates in Boston, David Shamburger, has focused on nanotechnology and how it relates to healthcare. He recently blogged that with more government policy focused on healthcare, more venture capital money will funnel into medical devices and new drugs. Other attorneys are looking at nanotech issues specific to aerospace, the automobile industry and medical devices.

Editor: What kinds of health and safety risks does nanotechnology present in the workplace?

Bashaw: The approach that industry as well as government needs to take is a longitudinal one - looking at concerns during the manufacturing process, the middle man process, the end-user process and lastly the garbage dump. We did our December 9 webinar on the particular issue of employee health and safety: what should people be doing to protect their workers. A lot of the questions that we received at that time were focused on where do I go to find out what type of controls should be put in place in the absence of specific regulations under OSHA? There are some very good websites that you can visit: ICON and Rice University maintain a website called the "goodnanoguide," which is a collection of industry practices to protect workers from different types of nano materials. Our team has recommended that if companies are using nano materials as part of their processes, they should conduct a risk assessment to determine the toxicity of the material. Can workers be exposed to it dermally or through inhalation? Are the materials bound up in a matrix making them less of an inhalation concern? There are things that can be done if employers want to reduce their liability risks. There are guides even though regulation is sparse.

Rogers: We realize that this whole area is not purely a legal subject area. One of the areas where we can best serve our clients long term is to include as part of our team not just legal specialists but scientific specialists and other experts to contribute their knowledge. Take work place safety as an example: not only is there need for training manuals on communication about hazards as required by OSHA regulations, but somebody actually needs to get into the factory to examine the procedures and the processes that manufacturers are using in incorporating nano materials into their underlying products and do a job safety analysis to see what are the particular risk areas. Addressing a particular risk might include using Personal Protective Equipment (PPE). It might require a change in the way that you handle the materials as part of the manufacturing process, i.e., creating sub assemblies in a sealed glove box. You might have to add improved ventilation to your plant with better filtering. In this regard our team works with certified industrial hygienists and toxicologists - strategic partnerships that we have created so that we can be deployed and offer our clients a total solution.

Editor: How can employers protect against litigation in the nanotechnology area? Can you develop a safe harbor for some of these manufacturers so that they would not be so likely to be subject to litigation?

Rogers: You can never prevent somebody from filing a lawsuit, but I think if you are proactive in being cognizant of the latest scientific and toxicological information you can dramatically reduce your risk of not only exposing your employees to hazardous substances but also your customers. Therefore you automatically and correspondingly reduce your risk of litigation exposure.

Bashaw: A critical component is keeping up to date on the science of the particular nano material that you are using. In the nanotech world there are new studies coming out hourly on a global basis that are focused on all sorts of different products. Keeping up to date with what is going on in the toxicology area for a particular nano material for any particular user is extremely important. You have to be nimble enough to change your processes and your plans as those studies change.

Part II can be viewed at http://www.metrocorpcounsel.com/articles/12396/nanotechnology-new-force-human-betterment-part-ii.

Please email the interviewees at jrbashaw@daypitney.com or wsrogers@daypitney.com or jclark@daypitney.com with questions about this interview.