3D Printing and Intellectual Property

MARCH 28, 2014

1. Introduction: What is 3D Printing? 3d printing

Although 3D printing has become much more widely known, it is still a concept that is unfamiliar to many, and more have never seen the technology in action. A 3D printer is a machine that builds objects, by adding very tiny layers of material on top of each other - effectively, it “prints” in three dimensions.

The cheapest 3D printers are now available for less than $1,000, and they can be used to print objects as varied as coat hangers, teacups, cufflinks, toy cars, and Christmas decorations, all at a negligible cost. These 3D printers can, however, also build prototype models of new product designs; something which typically costs many hundreds or thousands of dollars to have made. Importantly, 3D printer 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 a company’s products no longer being manufactured in China but around the corner in a “print-shop”. Once such manufacturing becomes widespread, it might be possible to scrap half the world’s shipping 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” approach. Moreover, 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 items as varied as drugs (DNA-based 3D printing) and guns just around the corner.

2. Technological and Market Evolution

3D printing has evolved quite fast, particularly at the low-end, customer-facing side of the technology. While companies such as Materialise and 3D Systems 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 companies such as Ultimaker, Makerbot, RepRap, and  PP3DP. These printers have become faster and more reliable, and smaller and more sophisticated. This has allowed the scope of items that can be produced with a 3D printer to expand greatly.

While such hardware advances are impressive, the real fast growth in respect of 3D printing is, as always, in software. Designs of printable objects have increased significantly spectacularly thanks to websites such as Fabber, Shapeways, Ponoko and Thingiverse. One of the more interesting designs seen recently is the 3D printing of vinyl records – with the music on it! While the technology is not quite yet at the desired level, it gives an idea of things to come. Does that mean that consumers will be able to physically copy their old vinyl record collections soon?

3. Intellectual Property Developments.

The world of intellectual property, not surprisingly, has taken notice of 3D printing and a number of trends are, consequently, starting to emerge.

First, patent trolls have attempted to try and cash in on 3D printing. 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 significant amounts of money based on the innovation and creativity of others. In a similar vein, 3D Systems, an established 3D printing business, has filed a lawsuit against Kickstarter, the online crowdsourcing funding platform for creative projects. In the lawsuit, 3D Systems has asked the courts to block funding for a project 3D Systems alleges would infringe some of its intellectual property rights. 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. We therefore appear to be seeing the first signs of intellectual property rights holders trying to levy their usual tax on innovation into a new field.

Secondly, and more interestingly, a pushback has occurred within parts of the 3D printing community. Unlike when the first PCs were introduced and the concept of open source was not around, a lot of 3D printing technology, both hardware and software, is open source. This has spurred the Electronic Frontier Foundation (“EFF”) 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 to 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 being used to try to remedy this. One could opine that establishing prior art is really the job of the United States Patent and Trademark Office, but that would require a far more detailed analysis of the political debate concerning 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 easily circumvented or lifted. Similarly, Apple has lifted DRM protection for iTunes music files, and, at the same time, anyone who really wants to, is capable of technically circumventing most DRM protections currently used. This all leads to the question: what would be the business value of patent on a control system that is full of holes?

4. Conclusion: Foreseeable Trends

While it is of course very dangerous to try to predict the future, there are certain trends in respect of 3D printing that we can start to discern.

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

However, the intellectual property aspects of 3D printing look like they will be more complex and problematic. The key issue with patents is that they remain very hard to enforce in an open environment – when even at the level of the mobile phone market, for example, patent litigation is clearly not cost-effective, and destroys a lot of shareholder value. Given the myriad of developers and makers that may become involved in the 3D printing sector, such enforcement will only become more difficult.

Design rights also 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. Along with the issue of the cost-effectiveness of litigating to prevent products that can be produced at much lower price, such efforts will also meet with both practical and political problems.

Finally, there is the issue of copyright and the files containing the information allowing an object to be printed. If I design a chair, or a tower for my toy castle that fits neatly with a Game of Thrones-branded 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 the US Digital Millennium Copyright Act would apply to such a file, unless copyright as it applies to such files were fundamentally changed – right now, copyright only applies to the code, not what the code does. BitTorrent sites and other peer-to-peer technologies are already developing rapidly growing forums where people can share their files to be printed. It will be a lot less clear how right holders for different products will be able to claim that they have rights in a file in the popular 3D printing “.stl” format developed by someone else that allows for the printing of a product that looks like, but is not quite, their original product. It is therefore likely that the near future will see a 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).

Joren De Wachter (joren.dewachter@jorendewachter.com) http://jorendewachter.com