Vantablack, the latest application for cutting-edge-technology carbon nanotubes, is “a super-black coating that holds the world record as the darkest man-made substance”. Its creator, Newhaven-based Surrey NanoSystems, describes Vantablack as absorbing “99.965% of light” making it the darkest man-made substance.

It is not the obvious applications of Vantablack (stealth jets, painting the corners of coffee tables and upturned plugs) that has it in the papers, however. Rather, its creators have granted the exclusive right to paint using Vantablack to renowned artist Sir Anish Kapoor.

Some blackballed artists were understandably not impressed by the decision. English painter Christian Furr expressed how he felt it unfair for Kapoor to be “monopolising the material”, stating that “[a]ll the best artists have had a thing for pure black … black is like dynamite in the art world.” But is the Furr(ore) justified?

The precise legal basis for Sir Anish’s exclusivity is unknown but one likely basis for the arrangement is Surrey NanoSystems holding the patent(s) for Vantablack.

If the creators own the patent to the product itself then a third party who imports Vantablack into the UK from a jurisdiction where Surrey NanoSystems’ patents do not extend (e.g. China) may find themselves liable at law. (Budding Vantablack artists should therefore be wary of picking up pigment off the black market.)

But what if Surrey NanoSystems only holds the patent to the process for creating Vantablack? Similar to French artist Yves Klein’s patent for creating his signature hue ‘International Klein Blue’, a patent over the process for creating Vantablack could potentially grant de-facto exclusive control over the substance. Until such time as an alternate means of production is discovered (and this may be some time if the process is particularly complex), no third party can legally produce Vantablack within the territory without using the protected process.

A patent over the process alone, however, does not prevent third parties from legally importing the product from territories outside of the patent’s area of protection. It is this reason that some inventors choose to keep their innovations close to their chest rather than reveal their idea to the world in exchange for a patent. The innovation is kept confidential as a trade secret and is not disclosed to third parties without putting in place rigorous legal protection to deter and compensate in case of illicit disclosure. In the absence of a patent, however, there is nothing preventing a third party from independently discovering and patenting the innovation, unless it has already been disclosed and forms part of the prior art. There is therefore a calculated risk associated with maintaining trade secrets in favour of patenting.

If Surrey NanoSystems has followed the patents route then it has likely either licensed Sir Anish to produce his own Vantablack or, perhaps more likely considering the technical expertise and equipment needed for fabrication, it provides Vantablack on demand to the artist direct. Surrey NanoSystems would agree only to supply the artist and would take independent steps to enforce its patents against infringing third parties.