3D Printing And Utility Patents: Will 3D Printers Lead To Widespread Infringement Of Utility Patents?

by Downs Rachlin Martin PLLC

3D Printing Post ImageThis article is the next in a series of posts discussing IP issues surrounding 3D printing.  As discussed in the last post, some types of 3D printing technology have become affordable enough for home use.  This has led to increased concerns that the printers’ capability to make “perfect replicas” will lead to widespread IP infringement that, due to the distributed nature of the infringement, may be difficult for IP rights holders to prevent.  The concern for increased ease of infringement seems most clear for IP protecting aesthetic and artistic creations since a 3D printer can make something that, from outward appearances, is a nearly identical match to the original.  But infringement concerns are less clear for IP protecting functional creations (the domain of utility patents).  Instead, in at least the near term, 3D printing may represent more of an opportunity for innovation, with the potential to revolutionize myriad technology areas, than a concern for enabling infringement of existing functional designs.

3D printing technology, or “additive manufacturing,” has been around since at least the late ’70s.  The term 3D printing is very broad, encompassing many different technologies, the common characteristic being devices that build a three dimensional object by sequentially adding material, layer by layer, to create the final product.  The printers that have become affordable enough for home use pass a polymer or thin metal wire through a nozzle that melts the material, forming small beads or strips of material that are precisely placed on a working surface.  Higher powered applications use lasers or electron beams to either sinter or completely melt powder-forms of a working material.  There are, therefore, significant limitations on what can be made with a home use printer.  The material options are mostly limited to polymers that will work with the printer’s small, lower powered nozzle, meaning certain materials that have specific heat transfer or structural properties cannot be used.  Also, the resulting product will have a layered, non-homogeneous structure that will further limit the material properties of the final product.

These limitations on home-use 3D printers suggest that, in at least the near term, they will not enable widespread infringement of utility patents.  For example, for engineered products that are designed and constructed to perform some useful function, the materials chosen to construct the product are crucially important.  The relatively low-cost printers available for home use are not capable of printing many of the components of higher-end engineered products that require, for example, specific structural and heat transfer properties.  Thus, while the 3D printing technology available to consumers has significantly reduced the barrier for copying aesthetic features of artwork, the barrier has not been lowered as greatly for copying of engineered, functional products.  There are, of course, many patented consumer products made from plastic that have less stringent performance requirements.  For these types of products, today’s home use 3D printers may pose more of a patent infringement concern.

Rather than posing a dire risk of widespread utility patent infringement, 3D printing seems to represent more of an opportunity for innovation.  This is evidenced by the recent “gold rush for patents” covering 3D printer technology and a variety of analysts, including those from Goldman Sachs, The Economist, CNBC, and MIT Technology Review, identifying 3D printing as a disruptive technology that will impact many technology areas in the near term.  General Electric has made significant investments in 3D printing technology this year, with the stated goal of fundamentally changing the manufacturing of highly engineered components such as turbine blades, with the potential to cut production times and costs in half.

Outside of the mechanical arena, 3D printing technology may completely change healthcare and biochemical engineering.  Bio printers are being developed that use “bio ink” to “print” living human cells to form human tissue.  These Bio printers are being used to create test cells for drug development, reducing the time and costs of new drug development. And, one day, bio printers may be used to print human veins and arteries and entire organs that could be used for organ transplants.  3D printers are also being used to make medical devices that can be custom designed to specifically fit the patient, such as orthopedic and dental implants and hearing aids.

The potential applications for this technology and the associated challenges are mind-boggling.  In terms of the impact on intellectual property protection of inventions, 3D printing seems poised to have a much greater impact on the patent-acquisition side of the equation, as companies rush to improve their technologies, than on the enforcement side, due to individual consumers and hobbyists printing 3D objects at home.

Of course, there still is some near-term concern of infringement of patents covering simpler patented products made primarily from plastic.  Stay tuned for additional posts on 3D printing, which will include discussions of enforcement issues for those utility patents that are infringed, and infringement of design patents, which protect the aesthetic aspects of a product.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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