"In the past the rule of thumb has been you know an elephant when you see one," says Jason Teng, patent attorney for Potter Clarkson. Even so he adds that in the past patents for graphene products have tended to define graphene within the document. "IP needs to be free from ambiguities – the standard really helps here."

Although graphene hit the scene as a single monolayer carbon lattice of carbon atoms, the richness of the research field soon saw developments on "bilayer" and "multilayer" graphene raising the question – among others - when does multilayer graphene become graphite? The standard defines single layer, bilayer and multilayer graphene so that in terms of patents there should be no doubt what material is involved.

But speaking to David Kerr from Versarien – a company that specializes in producing graphene in large quantities by exfoliation – the standard could go much further. "According to the standard, 10 layers can still be referred to as graphene – we think it should stop at nearer five." That said he adds that the standard has helped "separate the wheat from the chaff" in the sector. "Now industry is getting really excited about using graphene in products it’s important."

Before and after the standard

So where does that leave patents placed before the standard was introduced? Teng feels confident that they will be upheld in the context in which they were placed, as must be the case for many fields in materials science where knowledge and understanding are constantly evolving. "That may not stop people trying to use it as the basis of a claim but I don’t think they will be successful."

The standard is timely for graphene as the first of a growing sea of 2D materials to attract industry attention. Ambiguities remain around others – how many layers of a heterostructure still constitutes a 2D material? How thin is a thin film? While further standards may yet be set, the case is clear now for graphene at least.

Full details on the standard definitions for graphene are available at ISO/TS 80004-13:2017