3D Printing: How Will IP Law Handle The “Next Revolution” In Manufacturing?

by Downs Rachlin Martin PLLC
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Photo © Makerbot Industries, used with permission.3D printing technology is becoming more popular as companies such as MakerBot Industries continue to introduce more affordable desktop 3D printers.  With these machines, which work by printing layers of plastic, metal, ceramics or other materials, more and more people are “printing” real-life objects –toys, jewelry, shoes, replacement parts – in their home workshops.  As reported in a recent article in The Economist, industrial 3D printers that once cost at least $100,000 can now be purchased for around $15,000, while home versions are available for a little over $1,000.  This accessibility is causing some concern relating to intellectual property infringement because owners of 3D printers can print perfect replicas of a product, or other object, after downloading the digital plan for the product, which is in the form of a CAD (computer-aided design) file.  With new 3D scanning technology, creating the printable files for existing physical objects, or customized versions of existing objects, is also becoming increasingly easy.

In his latest State of the Union address, President Obama hailed 3D printing technology as “the next revolution in manufacturing.” Perhaps more than most new technologies, however, 3D printing raises intellectual property questions on many levels.  For example, what protection is available for the CAD file itself, and what are the ideal terms under which these design files should be licensed or otherwise made available for use?  In terms of the printed object, how can users of the technology determine whether printing copies of existing objects, or enabling others to do so, violates another’s copyright or other intellectual property rights?  For one thing, copyright protection does not extend to functional elements of three dimensional works.  While the shape of three-dimensional objects may be protected by design patent, or may constitute protectable trade dress, neither design patent protection nor trade dress protection extends to functional elements of a product’s shape or configuration.  However, access to this technology may put intellectual property rights that do cover functional features, e.g. utility patents, at greater risk of infringement by a wider class of potential infringers than previously possible.

Companies that host user-generated 3D printable CAD files online are some of the first to grapple with the application of existing IP laws and policies related to the new technology.  In December, MakerBot decided to remove all designs for firearm components from its Thingiverse website, which is an online marketplace where people can share digital designs for printable 3D objects.  In doing so, MakerBot stated that the site’s focus is on “creative empowerment for products that have a positive impact,” and cited its Terms of Service, under which users agreed not to use Thingiverse to upload content that “contributes to the creation of weapons.” In response, a new start-up called DEFCAD was launched last month by Defense Distributed, a company that plans to develop fully printable guns.  DEFCAD’s stated aim is to be an online repository for the 3D files that established sites have declined to host.

Thingiverse and DEFCAD will be interesting to follow because they appear to have contrasting policies relating to responding to copyright infringement allegations.  Under the Digital Millennium Copyright Act (DMCA), companies hosting user-generated content online can protect themselves from liability for claims of copyright infringement, or contributory copyright infringement, by implementing certain notice and takedown procedures.  Thingiverse instituted a copyright policy designed to comply with the DMCA after receiving its first takedown notice, which related to a CAD file for printing the Penrose Triangle (an optical illusion likely not protected under copyright law).  In contrast, DEFCAD apparently plans to ignore DMCA take-down notices sent on behalf of copyright owners. Indeed, this video seeking funding for the DEFCAD site suggests that the company intends to spark a “revolution” by refusing to acknowledge the rights of intellectual property owners.  Exactly what this revolution entails, however, remains to be seen.  (But it is probably not the revolution the President had in mind!)

We plan to explore these, and other IP topics relating to 3D printing technology, in an upcoming series blog posts.

Photo © Makerbot Industries, used with permission.

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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