August 15, 2014
Wired Innovation Insights
By Elizabeth D. Ferrill; John F. Hornick; Daniel F. Klodowski
Authored by Elizabeth D. Ferrill, John F. Hornick, and Daniel F. Klodowski
In this first installment of a three-part series on legal issues relating to 3D printing, we talk about the available forms of intellectual property (IP) protection, tips for protecting your ideas on a tight budget, and when IP rights may (or may not) be a good fit for a 3D printing business.
Intellectual property rights exist to incentivize innovation. Whether you’re building a new 3D printer, developing a new printing material, or drafting a new design, IP can provide exclusive rights to use your ideas and bring them to market. There are several distinct forms of IP rights that can be used to protect 3D printing-related ideas:
Utility patents have received a great deal of recent media attention, but they provide a relatively expensive means of protection that may not be suitable for everyone. Even with the reduced government filing fees for smaller inventors, patents often cost tens of thousands of dollars and it may take years before they issue. Designers and manufacturers with limited resources may effectively protect ideas by properly securing other rights requiring smaller up-front financial investments, such as copyrights, trademarks, design patents, and trade secrets, either alone or in combination.
For instance, if you properly register a copyright before infringement starts, you may be eligible for fixed damages rather than having to prove that you suffered economic injury, which can be a difficult and expensive process. Federal copyrights can be registered online for $35. Likewise, a registered trademark can become “incontestable” after 5 years, which somewhat insulates the trademark from attacks in court, saving money.
Not everyone involved in 3D printing should pursue all forms of IP protection. While some companies will benefit tremendously from a broad IP portfolio, others will find obtaining and enforcing IP rights to be a poor use of limited resources. For instance, where a patented design is relatively simple and leaves plenty of room for others to alter the original design while maintaining the same functionality, it may be easy for competitors to “design around” a protected product, circumventing the patent.
But where a product can be easily printed in mass quantities, and is usually sold without customization, preventing unauthorized 3D printing will be just as important as controlling illegal copies made through traditional manufacturing methods. And where a product has multiple components that are each subject to IP protection, savvy IP rights holders can hamstring a competitor’s ability to design around a protected product, which may give the rights holder a competitive edge.
As demonstrated by the music industry, policing and enforcing IP rights in the digital age can be challenging. Finding infringers may be difficult, and companies seeking to enforce rights are sometimes forced to sue their own customers, damaging the goodwill and reputation of their brands. But for products that cannot be easily 3D printed without detection by IP rights holders such as aircraft parts, pharmaceuticals, or integrated circuits, IP enforcement may not be harder for 3D printed products than for products made by traditional methods.
Unless owners of 3D printing-related IP rights proactively develop strategies to protect their business models, their ability to enforce IP rights may struggle to keep pace with the rate at which this disruptive technology is developing and being adopted. But, for now, you should carefully consider the existing choices of IP rights and select the types of protection appropriate for your budget, your product, and your market.
Originally printed in Wired Innovation Insights on August 15, 2014. This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. This article is only the opinion of the authors and is not attributable to Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, or the firm's clients.
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