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Trading Secrets A Law Blog on Trade Secrets, Non-Competes, and Computer Fraud

3D Printing and Intellectual Property

Posted in Trade Secrets

As a special feature of our blog –special guest postings by experts, clients, and other professionals –please enjoy this blog entry about the impact of software on IP strategy by technology lawyer and IP strategist Joren De Wachter. Joren serves as a Vice Chair with me on the ITechLaw Intellectual Property Law 

-Robert Milligan, Editor of Trading SecretsCommittee and has an excellent blog of his own on current technology issues. Enjoy Joren’s article 

By Joren De Wachter

The technology of 3D-printing has made great progress and the world of Intellectual Property has started to react to the challenge posed by 3D-printing; which, in turn, has caused a surprise reaction by the 3D-printing community.

What is 3D-Printing?

Although 3D-printing has become much more widely known, not everyone knows about it, and still less people have actually seen it happen.

A 3D-printer is a machine that builds objects, by adding very tiny layers of material on top of each other. It “prints” in three dimensions.

The cheapest 3D-printers are now available at less than $1,000, and they can print you objects such as coathangers, teacups, decorative elements like cufflinks, toy cars, Christmas decorations at a negligible cost, but also prototype models of new product designs; something which typically costs many hundreds or thousands euros to have made.

And the technology is booming and evolving fast.

The potential impact of the 3D-printer on society at large has been compared to that of the PC – arguably, it may be bigger.

Imagine most of your products no longer manufactured in China, but around the corner in a “print-shop”? We could scrap half the world’s fleet, and reduce the ecological impact of any such production significantly. Because 3D-printing is what is called “additive” manufacturing, it produces significantly less waste than traditional manufacturing, which still uses the “carving out and throwing the waste away”.

3D-printing already uses many materials such as plastics, metals, ceramics, bio-materials (including both foodstuffs and elements of human tissue such as cartilage, or a lower jaw, or the carrying structure of organs such as kidneys), with drugs (DNA-based 3D-printing and guns just around the corner).

Since I first wrote about 3D-printing and their impact on IP rights, back in March 2011, things have evolved, both in terms of technology and in terms of Intellectual Property.

Technological and Market Evolution

3D-printing evolves quite fast, particularly at the low-end, customer facing side of the technology. While companies like Materialise and 3Dsystems have grown significantly by providing better and cheaper products at the high-end (allowing much cheaper and complex prototype development), there has been a boom in businesses offering DIY (indeed) 3D-printers, from Ultimaker to Makerbot to RepRap to PP3DP, and I’m forgetting many.

Printers become faster and more reliable, layers of construction become smaller, allowing for more sophisticated products, the scope of prime materials continues to grow.

But, as I said earlier, the real fast growth is, as always, in software. Designs of printable objects increases spectacularly, also thanks to websites like Fabber, Shapeways, Thingiverse and, again, I’m forgetting many.

But the really coolest thing I’ve seen recently is this: 3D-printing of vinyl records – with the music on it! It’s really “replicating music”; while the technology is not quite yet at the desired level, it gives an idea of things to come. Does that mean I will be able to physically copy over my old vinyl record collection soon?

 Intellectual Property Developments

The world of Intellectual Property took notice, and a number of trends are starting to emerge.

First, the patent trolls wanted to see if they could chip in and make a quick buck out of this. In true patent troll spirit, former Microsoft CTO Nathan Myhrvold’s Intellectual Ventures, filed a patent on a system of Digital Rights Management (DRM)-control of 3D-printing.

Such a system would mean that anyone who wants to 3D-print certain files, would have to pay a license fee; it is not quite clear who to, or why, but it looks like Intellectual Ventures wants to be able to collect lots of money on the back of the innovation and creativity of others (a sad, but typical, use of Intellectual Property Rights, a system nominally designed to “promote science and the useful arts”).

In a similar vein, 3D systems, an “established” 3D-printing business, has filed a lawsuit against Kickstarter – this is an interesting case, since 3D systems seems to assume that because they own certain rights, they would have a right to stop Kickstarter from allowing fundraising for a potential competitor who might, possibly, be in breach of those rights.

So we see the first signs of IP holders trying to levy their usual tax on innovation into a new field.

Secondly, and more interestingly, though, a push-back has occurred by parts of the 3D-printing community.

Unlike the PC, when no open source was around, a lot of 3D-printing technology, both in the hardware and the software, is open source.

This has spurred the Electronic Frontier Foundation into trying to crowdsource efforts to prevent the potential damage to innovation done by patents such as the ones filed by Intellectual Ventures.

While this points at obvious serious flaws in the patent system, which, certainly in the US, continues to lay monopolistic claims to existing technology, or on the basis of mere ideas, it is interesting that crowdsourcing of information is used to try to remedy this. One could opine that finding out about prior art is really the job of the USPTO, but that is going to deeply into the political debate about Intellectual Property Rights.

Thirdly, the question of DRM-protection of printable files seems awkwardly timed, now that most DRM for either music or ebooks can be so easily circumvented, or is indeed lifted.

Foreseeable Trends

While it is of course very dangerous to predict the future, there are some trends that can be seen.

On the technology side, it looks like the development of 3D-printing technology is both speeding up and spreading out. More applications, more advancement, more innovation is likely to take place. When people already receive body-implants for a lower jaw printed by 3D-printing in 2012, who knows where the limits are.

Also, since 3D-printing is spreading through communities of “makers”, the innovative advantages of an open source approach will probably lead to ever faster incremental improvements, alongside

On the IP field, the issues will be more problematic.

As I’ve stated before, the problem with patents is that they are very hard to enforce in an open environment – when even at the level of the mobile phone market, patent litigation is clearly not cost-effective, and destroys a lot of shareholder value, how will anyone be able to enforce patents against a myriad community of developers and makers?

Unless of course legislation is changed, and the scope of patents is expanded – but that would risk a serious backlash, as anyone who remembers the SOPA/PIPA story will confirm.

Design rights remain problematic; indeed, it is hard to see how design rights or design patents will be useful in blocking access to the market of competitive designs or products. Again, the issue of cost-effectiveness of litigating someone to keep products that can be manufactured at a much lower price off the market will meet with both practical and political problems.

Finally, there is the impact of copyright on the printable files. If I design a chair, or a tower for my toy castle, and that fits neatly with a “game of thrones” game, I do actually own the copyright in the digital file of such tower I designed myself, even if that resembles or fits well with a design from someone else. It is not clear how DMCA would apply to such a file, unless copyright would be fundamentally changed – right now, the copyright only applies to the code, not what the code does.

BitTorrent sites and other peer-to-peer approaches are already developing rapidly growing forums where people can share their files to be printed. It will be a lot less clear for right holders in a product to claim that they have rights in an .stl file developed by someone else, allowing to print a product that looks like, but not quite is, that original product.

Maybe the near future will bring a mighty new battle between those who want more control over the Internet (the right holders), and those who want to use it for the purpose of sharing and innovating (the 3D-printing communities).