September 25, 2013
Wired Innovation Insights
By E. Robert Yoches; Elizabeth D. Ferrill
Authored by Elizabeth D. Ferrill and E. Robert Yoches
Existing intellectual property laws don't exactly cover 3D printing. Intellectual property rights holders should become aware of the risks and secure the rights they have, but also look at other creative ways to discourage unauthorized 3D printing.
3D printing will test U.S. intellectual property laws, just as software, MP3 players, and the Internet did. People adapted and need to do so again. IP laws are notoriously slow to change, so rights holders should not look to Congress for help anytime soon. It is time to explore other options.
Today, companies protect product designs with a combination of copyrights, design patents, and trade-dress protection. These designs cover a wide range of products, such as athletic shoes and coffee pots to replacement razors and smartphone accessories. But, many small businesses (think Etsy) forgo formally protecting their designs, preferring instead to hope for a practical insulation from copyists, because their sales volume is too small to entice a copyist to set up a mass-production line.
But with 3D printing, the vulnerability equation for copying will change. The first copy and the millionth have essentially the same manufacturing cost, so smaller manufacturers may find their products copied as never before. Large objects or objects that require many different materials, on the other hand, may be less vulnerable to copying because of size constraints and materials cost. Eventually 3D printing technology, either at the home or industrial scale, will catch up. When that day arrives, many industries may find themselves unable to prevent unauthorized 3D printing using only the traditional IP techniques.
IP law allows a rights holder many options, including suing the direct infringer as well as parties who have knowingly aided in direct infringement. Unfortunately, 3D printing does not fit neatly into this existing system.
Foremost, suing a direct infringer means that you have to find him or her. This may be impractical and even counterproductive from a public-relations standpoint, especially those who only make a few copies. The cost of pursuing such individuals would certainly outweigh any monetary recovery.
It might also be difficult to target the manufacturers of the 3D printers because of the 1984 decision in Sony Corp. of America v. Universal City Studios, Inc. The Supreme Court exempted manufacturers of recording devices from copyright infringement if those devices had a legitimate purpose.
If, however, a 3D printing service printed an infringing object printed on demand, then the owner of any rights that were violated could sue the service for indirect infringement. Indirect infringement has other hurdles as well, such as proving the service knew rights were being violated and still continued to copy.
Trading posts have popped up on the Internet that allow individuals to post and download digital design files. The rise of affordable 3D scanners will accelerate the creation and exchange of accurate design files. The copyright cases in the last decade against websites that hosted peer-to-peer file sharing, like Grokster, suggest that IP rights holder might be able to sue these trading posts if they traffic in protected designs.
Despite the somewhat challenging IP enforcement landscape, product designers should consider three approaches to protect their work moving forward:
With the rise of 3D printing, savvy product designers should consider all their options and plan ahead to forestall theft of their property.
Copyright © Finnegan, Henderson, Farabow, Garrett & Dunner, LLP. 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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