On January 31, 2008, law firm Chadbourne & Parke LLP held its "Nanotechnology, Law & Commerce" forum exploring "Business at One-Billionth of a Meter." A total of 18 invited speakers explored a variety of topics including the current state of nanotech R&D; public policy, politics and legal issues; the financing and underwriting of nanotech; and "nanoethics." George Pataki, the former New York governor who initiated the transformation of the floundering Upstate economy into a competitive nanotechnology corridor, provided the opening remarks. (The self-proclaimed "recovering politician" is now a counsel for Chadbourne on energy, environmental and corporate issues.)
"Collaboration instead of competition"
Pataki stressed "collaboration instead of competition," reminding the forum of successes facilitated by New York State’s support of joint university/industry research and technology transfer between them in areas such as, pharmaceuticals, alternative energy and IT. According to Pataki, SUNY’s College of Nanoscale Science and Engineering in Albany is now worth $4 billion; and, due in large part to reciprocal investment by industry, the value of nanotech infrastructure in the greater New York area is estimated to be over $14 billion.
Among several promising new nanotech firms discussed at the forum, two currently preparing products for market are noteworthy consequences of an increase in cooperation between industry and academia. Cerion Technologies (Rochester), an outgrowth of the partnership between the Rochester Institute of Technology (RIT) and Eastman Kodak, is working on a fuel borne additive (FBA) nano-catalyst that effectively incorporates a catalytic converter into a diesel engine. Though the concept is not entirely new (UK-based Oxonica Ltd. has already employed CeO2-based nanoparticles in its additives), Cerion promises novel methods for producing uniform and pure nanoparticles (6 nm) more cheaply and in greater volume. As an FBA, the CeO2 nano-catalyst harnesses the energy traditionally wasted in the exhaust stream reducing NOx emissions and converting CO to CO2. The firm is hoping to adapt the technology for biodiesel, gasoline, gasohol and coal-plant applications. In the latter case, the additive features surface-lattice-site modified crystals with sulfur substituted for oxygen for preferential bonding to toxic elements, such as lead, mercury, uranium and thorium often present in coal and released during combustion. After binding with these pollutants, the CeOxS2–x particles aggregate into larger particles for more cost-effective separation by centrifugal or gravity-settling methods.
The second firm, Tempo Pharmacueticals (Cambridge, Mass.) whose CEO Alan L. Crane presented at the conference, is attempting to produce 100 – 200 nm-sized versions of known cancer-fighting agents in an effort to help localize the medication’s effects exclusively at the tumors. Malformations in blood vessels feeding a tumor make the typically 60-nm dia. passages leading to cells about 600 nm. A 100–200-nm compound falls just under the radar of immune system mechanisms, but is large enough to localize the medication’s effects at the tumor. Once distributed to a tumor, Tempo’s Nanocell technology sequentially releases an anti-angiogenic drug, collapsing the vascular network and trapping the nanoparticle within the tumor, followed by the subsequent release of a potent anti-tumor medication. The research behind Tempo’s product originated at MIT.
"I’m here to scare you"
The forum’s final panel took an ominous tone with panelists J. Clarence Davies of the Woodrow Wilson International Center and Brooklyn Law School Professor Aaron D. Twerski forewarning that their purpose was to "scare" attendees. Focusing on potential, but abstracted, legal scenarios, the panelists were less successful than a series of disconcerting and incidental remarks made by prior speakers.
On the capital investment panel, Steve Knutson vice president and director of emerging issues for financial services provider Zurich North America briefly noted that of the proposed $1.45 billion in the 2008 U.S. budget for the National Nanotechnology Initiative less than 5% ($58.6 million) has been allocated for toxicity R&D. An assistant professor of philosophy at Western Michigan University, Fritz Allhoff, briefly referred to studies showing that single-walled carbon nanotubes (CNTs) can induce pulmonary injury and chronic obstructive pulmonary disease (COPD) in mice. Expert witness for Chadbourne, Stanley Fiel, provided larger context pointing out that 20% of COPD is not smoking related, only pollution related; and that unlike other diseases common to bad habits, like heart disease, COPD is on the rise.
While, Allhoff stated weeks beforehand that it’s "encouraging to see business-oriented conferences starting to engage in nanoethics, even if that tempers some of the enthusiasm about nanotechnology’s potential," the level of engagement was mixed. At the proceeding informal reception, one political organizer for nanotech interests in Washington D.C. incorrectly described the cited intratracheal instillation studies on mice — which have been independently conducted by NATO-OTAN, North Carolina’s CIIT Center for Health Research and three collaborating universities in Taiwan — as an isolated group of scientists "stabbing" mice and injecting them with inordinately high CNT-concentrated solutions. Intratracheal instillation (which does involve the injection of potential contaminants into a test subject’s throat) has become a standard characterization method in industry and academia due to the higher relative cost of inhalation studies. So while cited as a case of poor science begetting unwarranted government regulation, the use of intratracheal instillation more accurately portrays the underfunding of toxicity research as highlighted by Knutson. With the growing number of CNT applications (in pharmaceuticals, displays, solar panels and batteries, for example) occupational safety is sure to become an important issue.
FDA associate chief counsel John Barlow Weiner briefly noted in his presentation the peculiarity of Samsung’s Silvercare washing machine (a product that uses nanoscale silver particles to kill bacteria) falling under Federal Insecticide, Fungicide, and Rodenticide Act regulations. Found in 95 of the approximately 500 consumer nanotechnology products, nanosilver was the most common nanomaterial in that market as of May 2007. Many of these, including food storage containers, children’s toys, paints and cosmetics, embed nanosilver into polymers as a germ-killing agent. Both bulk and nanoscale silver is toxic for fish, algae, crustaceans, some plants, fungi, and bacteria raising concerns of possible damage to water ecosystems. The material’s insertion in plastic materials — which already pose risks for marine life as their tendency to photo-degrade but not biodegrade leads to bioaccumulation — suggests the possibility for prolonged ecological damage. How will nano-silver products contribute to the 46,000 pieces of plastic litter that float on every square mile of ocean as estimated by the U.N. Environment Programme (Nairobi, Kenya)? Or to the daunting "Pacific Trash Vortex" floating 600 miles northeast of Hawaii?
Speaking to the Metropolitan Corporate Council, in a nanotech-themed interview anticipating the conference, Chadbourne partner David L Wallace stated that for nanotech "the best mitigation strategy will be good product stewardship." Wallace, who organized the forum, elaborated that firms hoping to avoid liability litigation will need to consider their products "from conception to development, commercialization, use and disposal." There is a teasing irony in both the major opportunities and risks of nanotechnology promising radical change for public health and the environment. In the race to develop life-saving medications, pollution-reducing fuel additives and the like, industry will need to face profound questions about the consequences not only of rushing to market, but of reaching market too late.