The IP Protection Challenges of 3D Printing  

POSTED BY Chris Huffines AT 5:05 P.M. August 15, 2012

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The legality of making a tiny, toy tank for a game about fighting genocidal aliens in the 40th century does not sound like a seismic shift rocking the very foundations of manufacturing.  It may be hard to believe, but 3D printing, and the many benefits it brings, will drastically alter manufacturing for decades to come.  3D printing is one emerging technology field with the potential to create significant—perhaps even extreme—practical and legal consequences.  Innovators and manufacturers need to be ready to use all the protections offered by the different forms of intellectual property to protect their assets and businesses.

3D printers work by laying down successive layers of material such as polymer or metal, like a three-dimensional dot matrix printer.  As each layer is built, the printer begins laying the next layer, until the entire shape has been manufactured.  A digital file is associated with each object that tells the printer exactly when and where to deposit the material.  As the technology progresses, more materials and finer resolution are appearing on the scene.  Unlike traditional manufacturing, which generally removes excess material, 3D printers can use raw materials more efficiently to build increasingly complex shapes.  Under names as diverse as MakerBot, RepRap, Fab@Home, or Airwolf 3D, the world of 3D printing (AKA additive manufacturing, layer manufacturing, rapid prototyping, or rapid manufacturing) is becoming increasingly large, profitable, and important.  In some fields, it may supplant traditional manufacturing entirely.  It is a textbook example of a disruptive technology.

Protecting intellectual property rights as disruptive technologies emerge always leads to interesting outcomes, and 3D printing is no different.  For example, intellectual property owners have been using “takedown notices” under the Digital Millennium Copyright Act (“DMCA”) in disputes over 3D printing.  Games Workshop, owners of the highly-popular Warhammer 40,000 tabletop miniatures game, recently sent a DMCA takedown notice to a fan who designed and printed his own custom miniature (the “toy tank” mentioned above).  In another case the creator of a printable optical illusion sent a DMCA notice to block another user’s file showing how to make the same illusion.  Just one problem:  these aren’t copyright issues.

Copyright covers artistic expression, patent covers useful things.  The rules governing the two are very different.  Patents last for 20 years.  Copyrights can last for more than 100 years.  Copyrights are automatic; no registration required.  Patents are only granted after a long, expensive application process.  Patents are absolute monopolies; there is no such thing as “fair use” of a patent (much less parodies).  Copyright law relating to computers and copying has been so distorted by the ongoing fight against digital piracy that trying to adapt the DMCA to 3D printing is simply a recipe for importing the distortion into another area of intellectual property law.  As Michael Weinberg, senior staff attorney with Public Knowledge (a group that advocates for consumers' digital rights) says, “In the mid 90s, lot of people doing incredible things with computers, networked computers, all over the world," he said. "The disrupted industries [e.g. movies, music] and Congress tried to find a solution, and in 1998, Congress passed the Digital Millennium Copyright Act (DMCA). Basically, it sets the rules of the game for digital copyright. DMCA is not all bad, but it doesn’t necessarily reflect all the ways we would want things done.”

Innovators dealing with the advent of 3D printing, instead of relying on inapposite copyright law like the DMCA, should look to the many different forms of intellectual property protection.  Could a copied item produce brand confusion?  Trademark is the best vehicle for protection.  Is the form of your product important?  A design patent would serve you best.

The law will eventually catch up to the technology, once it has matured.  In the meantime, individuals and businesses have an open field to innovate and exploit the new technology.  These innovators can and should:

  1. Study the competitive advantage of your designs.  Build an IP strategy to respond to and exploit key differentiators; and
  2. Figure out win-win business models that don't stifle creativity but instead utilize the “crowd” and the “cloud” to further company’s interests (and increase revenues).

ipCG will be watching these exciting trends and present some follow-on articles that address specific points in this article in more detail.

TAGS: Chris Huffines | Creativity | Disruption | Regulation and Legislation
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