Inventions in and around 3D printing just keep coming, and the pace seems to be picking up. Current consumer-focused innovations include a range of affordable home desktop printers that use materials like plastics, polymers, and paper, as well as food. At the same time, researchers at universities and companies continue to expand the technology’s capabilities, often focused on the software and materials that go into the printer.
While all this innovation seems limitless, forces beyond pure market acceptance and ingenuity may serve to chart the course that 3D printing takes as a disruptive technology. As with preceding disruptions that surrounded technologies like personal computing and smart phones, intellectual property (“IP”) law and IP-based legal disputes will end up playing a significant role in shaping who wins, who loses, and who survives 3D printing’s journey to potential widespread consumer use.
Around the world, most legal systems recognize and protect creations of the mind under an area of the law called intellectual property. When an innovation qualifies for protection under an established theory of IP law, and not all do, the law usually entitles the person or entity to keep others from using that innovation.
IP law provides a range of remedies for unauthorized use. Patent, copyright, trademark and trade dress infringers can be ordered to pay damages and/or penalties. Sometimes infringers may have to stop selling or even destroy existing products. Other times, penalties may be imposed even if any copying is unintentional or the person copying is unaware of the claimed IP rights.
Common areas of IP rights include patent, trade secret, copyright, trademark and trade dress. All of these areas will play a part in determining 3D printings’ future. In addition, as with websites and the Digital Millennium Copyright Act, IP law will need to respond and change in order to make way for 3D printing’s widespread use.
3D Printing and Patent Law
Patents protect the inventions they cover from copying and unauthorized use, which patent law calls infringement. To get patent protection, the inventor must file a patent application and, in order for a patent to issue, the U.S. Patent and Trademark Office must approve the application. To qualify for a patent, the invention must be new and useful and cover patentable subject matter – laws of nature, physical phenomena, and abstract ideas are all not eligible for patenting.
Once patented, every unauthorized use of a claimed invention constitutes infringement even if the infringement is unintentional. But patent infringement litigation can be expensive and difficult. In recent years, the courts that oversee patent infringement litigation have tightened patent litigation standards, changing or clarifying rules for deciding issues around a patent’s validity, infringement and remedies.
As a result, patent litigation now almost always involves intense and costly battles as inventors and alleged infringers argue over each requisite element of patentability and infringement. And, even if an invention survives the validity and infringement crucibles, the patent holder must still prove an appropriate remedy under a set of standards that have also gotten tougher.
Because of these hurdles, so far, patent infringement litigation that has occurred in the 3D printing space has been between the industries big players for claims of infringement involving the printers themselves. 3D Systems has a history of taking on competitors in patent litigation including, most recently Formlabs and its consumer model printer the Form 1. Stratasys also recently began patent litigation against Afina, which offers a low-cost FDM model utilizing parts from China.
But patent infringement litigation for an object or objects made on a 3D printer has yet to occur even though some industry analysts and commentators suggest that 3D printing will eventually inspire “stockless” parts replacement. How and whenever commercialization of parts printed on a 3D printer occurs, patent litigation based on that kind of infringement will likely occur, but could prove difficult.
First, like any other patent litigation, the patent holder with rights in the copied object will have to go through the potentially costly and time consuming effort now required to prove infringement of any asserted patent. In addition, entities using 3D printers to make objects can take advantage of various doctrines that allow repair or reproduction of some elements of even patent-protected objects.
For example, an owner of a patented object may have the right to preserve the useful life of that object and may be able to produce a wide range of replacement parts for the patented objects, even if the replacement activity is done on a commercial scale. Similarly, when a patented object consists of both patented and non-patented elements, reproduction of the non-patented elements of the claimed invention is freely allowed.
These and other obstacles may make the manufacturers of the printers or providers of the build files used to create objects ideal targets for patent litigation, especially when infringement occurs in the consumer market under indirect infringement theories. But the Supreme Court has recently made it harder to prove indirect infringement, requiring knowledge of the patent-in-suit and the direct infringement of that patent for either contributory or induced indirect infringement claims. And the Federal Circuit which decides all patent appeals has said that a good-faith belief of invalidity is evidence that may negate the specific intent required for induced infringement.
With widespread consumer adoption, showing actual knowledge of a specific, infringed patent may be difficult. As a result, though consumer use of 3D printers may create multiple instances of patent infringement, policing and protecting patent rights in inventions copied on 3D printers in many cases may not be a realistic option for patent holders.
Patent law will play an important role in determining rights contested between the many entities seeking to capitalize on the economic benefits that accompany 3D printing as a disruptive technology. While issues of validity and infringement will certainly have their day in court for patent battles between the technology’s manufacturers, the story will likely be quite different for patent infringement focused on items created using a 3D printer.
In those cases, doctrines that allow the production of replacement parts as well as requiring specific intent for induced infringement may make it much harder for patent holders to protect their inventions, no matter the proprietary rights they gained because they hold a patent.
Reprinted with permission.
The original article appears at http://www.inside3dp.com/3d-printing-patents-ip-law-next-disruptive-technology/
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