3D Printing: Some Initial Legal Issues

As a geek, I am very fond of new gadgets.  I love my smartphone (a Galaxy S3) and always try to find new gadgets to improve the movie viewing (and gaming) experience at my house.  There are some interesting toys on the horizon (such as the Oculus Rift and Omni treadmill), but I’d rather briefly discuss 3D printing and its legal implications.

3D printers particularly piqued my interest when I read about them about a year and a half ago.  The technology seems like something out of a sci-fi movie or show.  Basically, a 3D printer adds layers and layers of a material (usually some kind of plastic, though there are people working on making the process work with other materials) until it takes the shape of an object.  At the moment, most 3D printers are used by companies for prototyping or modeling new designs.  There is a growing home 3D printer market (from companies like MakerBot) that aim to have 3D printers in everyone’s home.  The great thing about the devices is that you can print anything as long as you have the appropriate blueprint (usually a CAD file).  

These devices have a number of legal implications, particularly due to patent and copyright law.  Since this is only a blog post (and patent law gets extremely complicated), I’m going to only discuss these issues briefly and in very broad strokes.  Patent law allows for an inventor to have what is referred to as a limited monopoly over an invention described in the patent.  This monopoly is limited in that it only lasts for 20 years, but the inventor has a right to control distribution and reproduction of his or her invention during that period.  In order to gain such a monopoly, the inventor must prove to the US Patent and Trademark Office (USPTO) that they meet a number of requirements (such as the invention being novel).  How do 3D printed objects potentially violate patent law?  Well, patent infringement generally doesn’t require any kind of intent (it’s one reason patent trolls can operate as they do).  If an individual makes an action figure for their kids (or maybe themselves), that action figure could violate any number of patents related to the movement and features of that toy.  That person would technically be liable for infringement, even though they merely drew up the model in a CAD and printed it out without knowing about pre-existing patents. 

Any party seeking to bar the sale of 3D printers would currently have to overcome a couple of major hurdles.  Manufacturers would likely have to pursue lawsuits against the makers of 3D printers, would would require courts to reach some conclusion that companies like MakerBot are liable for contributory infringement.  35 U.S.C. 271(c) includes a rather large exception for contributory infringement.  For there to be contributory infringement in a patent case, the device must not be a “staple article or commodity of commerce suitable for substantial noninfringing use.”  In other words, just because the device is capable of infringing on other people’s patents does not mean that the maker of that device is liable when other people use their device for that purpose.  The device simply has to have a major noninfringing function, which should represent a valid argument for a 3D printer manufacturer (after all, an individual can make any number of non-patented objects).  Another issue is inducement.  This is a separate issue from contributory infringement, but also potentially provides a bridge from individual infringers to the 3D printer manufacturers themselves.  Inducement requires the plaintiff to show that the 3D printer manufacturer go out of their way to infringe on the patent.  Occasionally, this is easy to prove.  There’s a famous case called MGM v. Grokster, where (for example) a company called StreamCast developed a program called OpenNap to allow users to draw from Napster’s network when using their own program (called Morpheus) and advertised the ability to do so in their promotional materials.  Short of a situation like the Grokster case, proving inducement (even circumstantially) is extremely difficult.

The worry is less existing intellectual property law, and more what interested parties will push for once this technology becomes widespread.  There is a fantastic white paper by Public Knowledge on this very topic, which I highly recommend reading.  Expanding aspects of patent law to deal with increased infringement by regular consumers represents the most likely course of action (perhaps by pushing for a broader contributory infringement standard for example).  I doubt that toy manufacturers will attempt to sue individual infringers the way the Recording Industry Association of America (RIAA) did in the late 1990s and early 2000s.  Those law suits were extremely expensive to prosecute and yielded little in return (the judgments were often so high that they became unenforceable).  Expanding liability beyond individuals (to, say, the makers of the devices) can strongly impact other industries and deter technical innovation. 

How this technology, with its legal implications, develops should be extremely interesting.  It would be nice to avoid the legal battles resulting from widespread file sharing, but I am not optimistic on that count.

 

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