How 3-D printing threatens our patent system

January 6, 2016 by Timothy Holbrook, Emory University, The Conversation
Stop printing all over my patent. Credit: Enrique Dans/flickr, CC BY

Remember Napster or Grokster? Both services allowed users to share computer files – usually digital music – that infringed the copyrights for those songs.

Now imagine that, instead of music, you could download a physical object. Sounds like something from a sci-fi movie – push a button and there's the item! But that scenario is already becoming a reality. With a 3D printer, someone can download a computer file, called a computer-aided design (CAD) file, that instructs the printer to make a physical, three-dimensional object.

Because CAD files are digital, they can be shared across the internet on file-sharing services, just like movies and music. Just as digital media challenged the copyright system with rampant copyright infringement, the likely will encounter widespread infringement of patented inventions through 3D printing. The problem is, however, that the patent system is even more ill-equipped to deal with this situation than was, posing a challenge to a key component of our innovation system.

The factory at your fingertips

Technically called "additive manufacturing," 3D printing from a CAD file allows someone to "print" physical items at home. The printer follows a file's instructions to generate a physical object. The printer head releases tiny squirts of material that, layer by layer, build up into the item. 3D printers can create incredibly complex objects, such as rocket engine parts, human tissue, a bionic ear and even a functional gun.

Laser scan an object into the computer and you can then print out a new 3D replica. Credit: Creative Tools, CC BY

The CAD files can be created by scanning in an object or by virtually designing an object on the computer. Once you have what are essentially the blueprints, the object is then just a press of a button away. Of course, if that object is covered by a patent, then pushing that button results in .

Potentially bypassing patent protection

Patents are actual documents issued by the federal government. They're awarded for inventions that are nontrivial advances in the state of the art. A patent allows the owner to prevent others from making, using, selling or importing the invention. These exclusive rights help keep competitors out of the market, allowing the patent owner to recover R&D costs. The owner also can use the patent to support efforts to commercialize the invention.

If people can evade the patent, however, then its value is reduced, undermining these important incentives. 3D printing presents this potential. It enables someone to "print" something that infringes a patent. Once someone prints the patented invention, they have "made" it, which violates the patent owner's rights.

Each printed copy of an invention is a lost potential sale to the patent holder. But, to sue for infringement, the patent owner would need to be aware that someone is using a 3D printer to make the patented invention. And that's a very tall order since these printers are widely dispersed across households and businesses.

Does the infringement lie with the CAD files themselves? Credit: Creative Tools, CC BY

Alternatively, patent owners could go after the people facilitating the infringement. The Patent Act permits a patent holder to sue parties who induce others to infringe. Potential inducers of patent infringement here could be the sellers of the 3D printers, someone providing CAD files of the patented device, or websites that sell or share various CAD files that instruct the 3D printer to make the patented invention.

Copyright law similarly prohibits inducement of infringement. Grokster did not make the infringing copies of the music itself, but it certainly helped other people make infringing copies. The Supreme Court held that Grokster likely induced copyright infringement, and Grokster shut down. The same idea could apply in the patent context.

But there is a huge problem with this approach: inducement of patent infringement requires actual knowledge of the relevant patent. For music, everyone knows the songs are copyrighted. Not everyone is aware that a particular device is covered by a patent. There are hundreds of thousands of patents in existence. It's highly unlikely that potential inducers would have actual knowledge of every patent that could be infringed by use of a 3D printer.

For example, suppose a dentist develops a brilliant new form of plastic braces, and she patents it. Independently, another dentist with some computer savvy comes up with the same idea via a CAD file. He shares the file with his dentist friends with 3D printers, who then all begin printing the plastic braces. The dentist's friends start sharing the file with their friends, or someone places it on a file-sharing network. And so on. Anyone printing the braces is technically an infringer, but how can the patent owner find them all? And the dentist sharing his CAD file would have to be aware of the patent to be liable as an inducer, which may be unlikely.

Should the CAD files alone trigger infringement?

Will 3D printing undermine the innovation incentives the patent system is designed to provide? Potentially, but Professor Lucas Osborn of Campbell University School of Law and I have argued that courts can combat this problem by focusing on the CAD files, rather than the printed object.

Copyright provides a helpful contrast. Digital files themselves infringe. They are copies of the work. Not so in patent law. To infringe, one has to make a tangible version of the invention. But, if the infringing object is merely the press of a button away for someone with the CAD file and a 3D printer, should the CAD files themselves be viewed as digital patent infringement, similar to copyright law?

We argue that if someone sells a CAD file that prints a patented item, that should be considered infringing. The CAD file has value because of the patented invention, so the seller is appropriating the economic value of the invention.

But what if someone is not selling the CAD file? Instead, they just possess it. Should that be infringement, too? We think not. The patent system encourages others to design around existing patents, which is often done in a virtual space. If the CAD file itself would be viewed as infringement, then the system could lose such beneficial improvement efforts.

It is unclear if courts or Congress will act to address these issues. What is inevitable, however, is that 3D printing will prove challenging to our patent system. There is a great irony here. One of the greatest innovations of our time may ultimately undermine a key engine of innovation, the system.

Explore further: Legal and technological implications of 3-D printing

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6 comments

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Eikka
5 / 5 (5) Jan 06, 2016
3D printing doesn't come -near- the cost effectiveness of factory made parts, and a star-trek style replicator machine, even a primitive one is so far in the horizon that you can't even see the horizon - so the concern is rather theoretical.
A patent allows the owner to prevent others from making, using, selling or importing the invention.


You've always been able to produce copies of patented technology for yourself, for personal use or research purposes. That's the entire point of patents - so inventors wouldn't lock their inventions away in fear of being beaten to the market.

They're only ever meant to stop commercial competitors from selling direct copies of your product, or from using your patented methods to produce a competing product, for a limited time.

When home manufacturing becomes cheaper than factory made products, the whole patent system becomes obsolete anyhow because it's cheaper for companies to sell engineering services rather than the products.
jeffreyturner
5 / 5 (4) Jan 06, 2016
This might be the most uninformed article I've read in months. The author clearly hasn't done much 3D printing himself and has made pretty much no effort to actually understand more than the basic concept.

And suing 3D printer sellers for "inducement to commit patent infringement?" Please. Are you going to sue Home Depot for selling a Dremel if the guy who bought it makes his own gear selector knob for his car?
Eikka
5 / 5 (5) Jan 06, 2016
The CAD file has value because of the patented invention, so the seller is appropriating the economic value of the invention.


Not because of the patented invention, but because the invention is patented.

That is to say, it has value because of legal fiction, not because of what it actually is or the information it contains. The real value is in the effort to come up with the information of the invention - not in copies of it. Holding the copies valuable is where the whole thing turns absurd.

Furthermore, the patent system as it is is fundamentally broken now. Where previously a patent was granted to whomever could prove they've invented it, today even having prior art is not enough - someone else can copy your invention and simply beat you to the patent office, and patenting itself costs so much that it only really benefits larger corporations - not your inventive dentist.
winthrom
5 / 5 (1) Jan 06, 2016
All the above comments are correct. In addition, one might consider a question of "obviousness to one practicing the art" in this:

"For example, suppose a dentist develops a brilliant new form of plastic braces, and she patents it. Independently, another dentist with some computer savvy comes up with the same idea via a CAD file."

When a practitioner of the art of dentistry can independently find a way to inadvertently simultaneously duplicate the brain work of another dentist, one must conclude that the "intellectual property" is more obvious than the patent office examiner realized.

Patent law is always a mess. Prior art changed the names of the inventors of the laser. Rounded corners on a cell phone were "unique" ideas of Apple Corporation. Marconi invented the radio, except Tesla actually did, so he was vindicated by the courts years after he died penniless in a seedy hotel in New York.
TheGhostofOtto1923
3 / 5 (2) Jan 06, 2016
3D printing doesn't come -near- the cost effectiveness of factory made parts
Perhaps printing centers are an alternative. Staples is already doing this.
http://www.staple...ne:48358

-I saw one in a barnes and noble.

Centers can offer professional machinery and media that you may not normally be able to afford in your home.
NIPSZX
5 / 5 (1) Jan 06, 2016
The patent system is unfair and broken. Why should a lawyer and an office processor get paid in order for an inventor to safely bring their idea to market? Why does an inventor need startup money to give to people that have nothing to do with the invention? You are thinking, "to protect the inventor from their idea being stolen." True, but if the idea ends up stolen after patenting, one must pay more to lawyers in order to go to court to fight. By this time, more is being spent on court than on the product. This is the problem with America. Too many people make too much money indirectly from the original creative people that innovate. It puts too much power into the patent office. Look up a patent and learn that you will be spending upwards of $250,000 to start the process. That is just a start and later down the road, it will only get more expensive. You will have to renew and extend patents as they increase over time due to inflation.

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