Intellectual Property Theory
October 25, 2013
At the end of the 18th century the first industrial revolution took place in England. Mechanization started to replace manual labor.1 This reversal meant the start of a new world. As of 2013, technology plays an essential role in our daily lives and has developed to a point greater than ever imagined. Phones, laptops and advanced household appliances are the “normal technology”. But many ordinary people have never heard about the phenomenon that’s called ‘3D printing’. Yet, lawyers and economists are aware and informed. There have been talks about a third industrial revolution since 3D printing is able to change the production and distribution process of products significantly.2 In this paper I will be discussing the phenomenon of 3D printing with a legal framework as a guideline. 3D printing has the potential to cause enormous concerns for the existence of patent law--I will be elaborating on this in my paper. I will address questions such as: what 3D printing means for the existence of intellectual property (to be specific: patent law) and how legislation can respond to this phenomenon optimally.
II. 3D Printing
Nowadays, in a world where the use of computers is a common practice and consumers are used to the internet, printing documents and downloading, 3D printing can offer a new advanced dimension of technology.
What is 3D printing?
A 3D printer is a device that can create an three-dimensional object out of thin air. This machine is able to ‘print’ in over a hundred materials. Mr. Chuck Hull invented this product in the year 1986, which is also known as 'Rapid Prototyping'. To print an object with a 3D printer, a 3D model of the object (blueprint) needs to be sent to the 3D printer. The 3D model can be made by using Computer Aided Design (CAD) software, but many 3D models are also available on the internet.3 Computer Aided Design software provides help to create accurate drawings or technical illustrations of a product intended to be processed by a 3D printer. Once the 3D model is sent to the 3D printer, the 3D printer shapes the object with the chosen material in thin layers, starting from the bottom layer, and working itself up to the top. The advantage of using this method is that the 3D printer can produce the 3D model accurately in any desired form or shape.
Although 3D printing is not familiar amongst ordinary people, business industries use this form of rewarding technology on a regular basis since its establishment.
The following are examples of industries using 3D printing and their products derived from 3D printers:
● aerospace industry; aircraft parts
● automotive industry; automotive parts
● defense industry; weapon parts and gas masks
● fashion industry; clothing and shoes
The main goal of the industries listed above is to generate low production costs and keep on experimenting and renovating products effortlessly. 3D printing effectively assists these industries in meeting that goal.
Likewise, the healthcare segment didn’t hesitate too long to start taking advantage of the benefits of 3D printing. With the modern technique of 3D printing, human cells are already being produced by 3D printers. It is projected that 3D printers will have the capability of producing organs in the near future. At this moment, research is also being conducted in order to investigate the possibilities of dental and bone repair with the usage of 3D printing. 3D printing promises huge developments in this industry
III. Intellectual Property Right
“The primary purpose of intellectual property right is to ensure a rich, diverse and competitive marketplace. To achieve this purpose, intellectual property doctrines all provide property rights as incentives to individuals who create new products, services or works of art or literature. Property rights in the fruits of creativity increase the chances that the creator can recoup his investment in the creation process and make a profit from his work.”4
As shown in the quote above, the main purpose of patent law is to encourage and protect innovation. The preservation of patent law is of great importance, because society is always in need of new innovations. The following chapter will discuss patents and the infringement of patents.
Design patent: “Whoever invents any new, original and ornamental design for an article of manufacture may obtain a patent therefore, subject to the conditions and requirements of the title.”5
Utility patent: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.”6
Unlike copyright, patent right does not work automatically. For patent right to start working, a written application must be approved.7 This application must be handed in at the Patent and Trademark Office (PTO)8 and must meet the requirements.
For the invention to be approved, the invention must meet the following three substantive requirements, which are tested by the examiner of the PTO. The invention has to be:
● Useful9: Usefulness means that the invention needs to have some utility or purpose.10
● Novel11: In this case, novelty signifies the invention not to be known or used, patented or described in a publication, prior to the invention by the patent applicant. To meet the novelty absent requirement, the invention must be new compared to the prior art. This requirement of ‘novelty’ in patent law lacks in copyright and trademark law.
● Non-obviousness12: “... if someone else had wanted to do what you have done, it would not be sufficient for him to simply hire a competent engineer, someone “skilled in the relevant art”, and tell him to do it. Something more, vaguely and traditionally seen as inspiration, a flash of genius, a light bulb going off over a cartoon head, is required.”13
After the allocation of the patent, the inventor has the exclusive right to sell, produce, import and offer his invention for a limited period of time. This means that others have to request permission, and license the invention, in order for them not to be sued for infringement.
The rule on infringement is stated in the Patent act:
“Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.”14
“Whoever actively induces infringement of a patent shall be liable as an infringer.”15
“Whoever offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.”16
The infringement of a patent is not as absolute as it appears. Infringement of a patented invention requires infringement of the entire invention.17 All new inventions exist out of other existing inventions. That is, each new invention builds off a past invention. The patent obtained does not apply to the existing inventions. By using the unpatented components of a patented invention there will be no violation of the larger patent.
A critical difference between patent infringement and copyright infringement is that the defense of ‘independent invention’ does not eliminate patent liability. A possibility for infringement on a patent right with the use of 3D printing is in example someone who creates a design. Takes patent on this particular design and afterwards publishes this design on the Internet.
The outcome of these actions will be that this particular design is open for public to see. This will lead into individuals duplicating and printing this design.
An individual that is sued for patent infringement has the right to defend on the ground that the patent is invalid.
Is there an infringement of a patent when products are made with the use of a home adjusted 3D printer?
Of course not every invention is protected with a patent. The 3D models of inventions that are not protected by a patent can be used anytime for the 3D printer, without the risk of being sued. The infringement is present at the time when there is no authority to make the patented invention.
The innovator has invested a lot of time and money into creating the invention, that gets rewarded by obtainment of a patent, which could lead to selling the product and benefit from it. An infringement on this exclusive right, will mean a tort.
What happens if it turns out that we can’t enforce IP rights in the context of 3D Printing?
With the arrival of a new society, in which individualism is dominant , there is a conflict starting between the ‘at home-producers’ and the patent holders. With the occurrence of 3D printing, everybody is able to produce the patented inventions at home, which leads to patent holders feeling threatened. It’s only a matter of having the right software and press the right button and the product is yours. The fact that patent holders feel threatened left aside; what happens if there will be no encouragement to invent or improve new products? Does this mean the end of innovation and development is near? Will this lead to inventions that will be used by individuals while nobody knows about their existing nor could benefit from them? Innovators would most probably no longer make a profit based on their inventions, which no longer encourages them to share their inventions with the public, excluding innovators who only want to gain recognition for their work.
How do inventors make money from their inventions without IP protection?
The mass production of 3D printing is inevitable. In the near future 3D printing is heading towards being a common household item. Hereafter I will discuss the hypothesis of a world without patent law. The following possible solutions could make it for inventors still profitable to invent:
● Inventors should make it as hard as possible to reverse-engineer their invention. People would know how the invention works, but not how it is made.
● Inventors should bring a more advanced product on the market, instead of every time a better improved version. This will make it more complex to replicate the product.
● Inventors should focus more on technology with greater uniqueness and innovative approaches. Reverse-engineering will be harder if the construction of the product is not clear.
How can we save patent law?
● Another possibility is to work together with the owners of the websites which publish 3D models of the inventions. Today, the major publishers of 3D models are the websites Thingiverse and Shapeways. Every time a patent is being infringed, due to publication of the 3D model of a product, the website owner will receive an alert with the request to remove the 3D model. A similar problem occurred during the mid-1990s, when the music and film industries were faced with the effects of the internet. Infringement of copyrights became a daily event. The government responded with the United States Digital Millennium Copyright Act (DMCA). This Act meant the commencement of a notice and take down policy for infringed copyrights. Websites could, from now on, receive notices of alleged copyright infringement. The owner of the website can be summed to remove infringing content of the website. This has been an admonition which could be practised on the infringement of patent. Liability of website owners will be excluded by this policy, if they comply with the prescribed requirements (= removing the 3D models that infringe a patent).
● A warning send from the website owner to the infringer of a patent. This warning includes a threat that their personal information gets exposed to the patent holder at the moment a patent might be infringed.
● The patent owner could try to contact the person that uploaded the document file (CAD file), with the warning that any further publication will lead to civil prosecution.
● The printers are set up in a way that they will be able to print only approved or certified documents. The permission to download a certified document could be bought by consumers. This will prevent infringement and ensure that consumers will pay for the permission for downloading it.
● Consumers should pay for every 3D model of a patented invention which they download on the internet. In this way inventors would be able to still make a profit from their invention. Could we imagine that maybe in five or ten years there will be a similar service as ITunes to download 3D model-files? Websites like Shapeways, Sculpteo and Thingiverse already offer the possibility to purchase or download ready-made design.
● Any government regulation could also make sure that people know that they are infringing a patent and that this is a tort.
As the popularity of the 3D printer is growing, it must be ensured that large-scale infringement of patents is prevented. The massive pirating associated with MP3s and the music industry was a major threat to artists. 3D printing redirects this threat towards innovators. It is necessary to respond to the technological advancement of 3D printing and establish policies in order to ensure that history does not repeat itself, referring to the large-scale copyright infringement. Legislation, such as the DMCA is a good example of a protective policy. Also, proper arrangements must be made with the producers of 3D printers. Collaboration between producers of 3D printers and patent holders could help the existence of new inventions. For example: patented inventions should be registered in the 3D printer system, so that only Computer Aided Design files that are legally downloaded can be used. When the patented inventions are recognized by the website owners that offer 3D models, there can be a distinction made between patented inventions and not patented inventions. This might sound as an impossible task to request of the 3D printer producers, but if we look at what already is possible within the technology, this shouldn’t be too much to ask for. I believe that the risks associated with 3D printing are far less significant than the rewards and potential for businesses and consumers. In order for this industry to thrive and benefit consumers and businesses, as well as innovators, systems and policies need to protect the intellectual property of the inventors and offer financial compensation for their work and ideas, so that everyone can enjoy what 3D printing has to offer.
1 Paul Mantoux, The Industrial Revolution in the Eighteenth Century, Abingdon: Routledge 2006, p.
2 ‘A third industrial revolution’, The Economist Special Report Manufacturing and Innovation 21 April 2012, p. 1
3 For example: http://www.thingiverse.com/ and http://www.shapeways.com/
4 Margreth Barrett, Intellectual Property (cases and materials), USA: West 2010, p. 2.
5 Patent act of 1952,Part II, § 171
6 Patent act of 1952,Part II, § 101
7 Patent act of 1952, Part II, § 111
9 Patent act 1952, Part II, § 101
10 The Complete Guide to Securing Your Own U.S. Patent (A Step-by-step Road Map), p 26.
11 Patent act 1952, Part II, § 102
12 Patent act 1952, Part II, § 103
13 D. Friedman, Law's Order, Chapter 11
14 Patent act 1952, § 271, sub a.
15 Patent act 1952, § 271, sub b.
16 Patent act 1952, § 271, sub c.
17 Bullock Electric & Mfg. Co. v. Westinghouse Electric & Mfg. Co., 129 F.105, 109-10 (C.C.A.6 1904)