Its time for our ink jet printers to move aside and begin to collect dust because there is a new kid in town: 3D printers. 3D printers are not technically “new” technology; they have been used by engineers since the 1980s. However, they are new to everyday consumers, and they threaten to become mainstream in 2014. This technology was mentioned in the President’s 2013 State of the Union speech, and even the cast of “Grey’s Anatomy” has been fighting over their 3D printer to build new life-saving organs. It is a hot topic and technology beginning to permeate news media and our everyday lives.
Our classic printers read information from digital documents and print the formatted text in ink, line by line, onto paper. A 3D printer, however, interprets CAD, or computer aided design, files — similar to a blueprint. These blueprints allow the 3D printers to “print” by building objects up layer-by-layer out of plastic, metal or other materials. This method of manufacturing allows for the elimination of older techniques such as injection molding.
This new technology has the promise to allow anyone to create almost anything wherever and whenever they want. Examples include the production of replacement parts for appliances, tools, medical prosthetics and potentially building biological organs out of organic material. One of the major patents protecting a specific type of 3D printer expired this week. The cost of 3D printers have decreased steadily due to the expiration of such patents on the 3D printers themselves. The price today ranges anywhere from just under $1,000 to more than $3,000, which allows this technology to be more accessible to the everyday consumer.
How does this affect IP rights?
The world of intellectual property, primarily with respect to copyright and patent, is now spinning with speculation and concern about the impact of 3D printers on IP rights.
The main issue with 3D printing and copyright is in the potential for widespread personal manufacturing of copyrighted objects independent of established markets in ways that cannot be detected, prevented, or controlled. Copyright protects original, artistic and non-useful works. Copyright is an unregistered right that automatically arises upon creation. Copyright applies to common subjects of 3D printing such as sculptural works or three dimensional representations of protected two dimensional illustrations. To be copyrightable, an object must have a modicum of creativity original to the author. If this threshold is met, then the work is protected by copyright.
Copyright infringement principles also apply to 3D printing just as they apply to any other copyrighted material. 3D printing is to three dimensional objects what MP3s and peer-to-peer sharing networks were to the music and movie industries. These technologies were used to copy and exchange, most often illegally. The Recording Industry Association of America (RIAA) spent almost a decade suing individuals engaged in illegal file sharing, which created public outrage. The most success was found in litigating against Napster, the online service provider who facilitated the wide and rapid distribution of illegally copied music. Pursuing infringement claims against a service provider for illegal 3D printing violations, in light of the Digital Millennium Copyright Act (DMCA), can prove difficult if the provider is complying with all safe harbor requirements. Websites similar to Thingiverse.com, which posts blueprints to help 3D printers build everything from toys to replacement appliance parts, will be harder for manufactures to recover from.
If someone copies and distributes a 3D printed copy of a copyrighted object, the owner has the ability to sue for copyright infringement. Therefore, it would be illegal for anyone to try to replicate copyrighted objects with their 3D printers, or post copyrightable CAD files or software online. DMCA protects not only service providers from liability, but also copyright owners from their material being illegally disseminated online. DMCA provides for copyright owners to issue takedown notices with which the service provider is likely to comply (to avoid liability). For example, the posting of a copyrighted CAD file on a website abiding by the DMCA will likely be removed upon the website’s receipt of the DMCA notice request from the copyright owner. This method, however, does not require service providers to scour their websites for infringing materials; it requires the copyright owner to police their own rights.
Another potentially common subject of 3D printing are patented objects or designs. Many intellectual property concerns dealing with 3D printing seem limited to copyright infringement, in both the underlying CAD files and the objects themselves. Patents, on the other hand, come into play when the objects being printed are useful or functional objects. Useful and functional objects are protected by patent laws. A patent gives the patent owner the right to exclude others from making, using, selling or offering for sale the patented invention (including products produced by a patented process) for a limited period of time. Not only are 3D printers themselves covered by patents but certain mechanical parts for computing, manufacturing, or household appliances may be subject to patent protection.
As a result of websites like Thingiverse or Shapeways, the capability to generate wide-scale patent infringement over the Internet is exponentially increased. A fundamental difference between patent infringement and copyright infringement is that a showing of independent invention does not limit patent liability. In a copyright infringement scenario, a defendant may escape liability if he can prove that he created the work independently. Conversely, in a patent infringement scenario a showing of independent creation will not shield the defendant from liability.
A common scenario surely to play out in 3D infringement cases is where one individual independently creates a design for an infringing item, then shares this design through one of the above mentioned websites in turn allowing users to print or purchase copies of the item. The above situation creates three distinct areas of infringement: direct, inducement, and contributory. Direct infringement creates liability for one who “makes, uses, offers to sell, or sells any patented invention.” Inducement creates liability for individuals or companies who “actively induce infringement of a patent.” Contributory infringement establishes liability for one who “offers to sell or sells … 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.”
From this hypothetical scenario, it clear that patent laws and rights create a minefield for users of 3D printers to walk through. There is no DMCA-like liability safe harbor for patent infringement, so the liability of individuals and service providers is uncertain and will most likely be litigated in the near future.
And the litigation begins…
The main concern with 3D printers is that they allow everyday individuals to potentially do a whole lot of illegal copying, willfully or innocently. There has already been a recent case regarding the popular HBO show Game of Thrones in which Fernando Sosa created an iPhone dock inspired by the show, this dock soon became a top seller of his small manufacturing startup. It wasn’t long before he heard from HBO regarding the dock. Sosa was required to cease sales on his website and refund more than a dozen customers $49.99. Sosa is just one example of designers facing legal challenges for using consumer version of 3D printers.
It is debatable how much impact the widespread use of 3D printers will have on intellectual property laws or vice versa — but it’s likely to be a highly litigious area in the future.
Coming soon: Porter Wright attorney Martin Miller will share the latest news and trends related to patents issues and 3D printing.