“Additive manufacturing” refers to a group of technologies that create objects from 3D computer models, usually by joining or printing materials, layer upon layer — hence the term “additive.” Colloquially, these technologies are referred to as “3D printing.” Simple 3D printing has been around since the 1980s and has mostly been used for “rapid prototyping” of mechanical models in plastic. Additive manufacturing is expanding to become a manufacturing paradigm that many industry experts believe will disrupt the current industrial manufacturing base in five years and totally transform the base within ten years.
Today, the cost of 3D printing equipment is falling and the formidable data service provided by the Internet “cloud” promises “anyone-anywhere” access to 3D computer models. A proliferation of 3D printers is now available, ranging from small and simple home printers that can make plastic objects to industrial printers that can print in more than 60 materials, including metal, glass, sand and even human tissue. For example, the 3D bioprinter company Organovo is collaborating with the software company Autodesk Inc. to develop tools to design and print blood vessels, liver tissue and other replacement parts for the human body.
This year, the industrial-level 3D printers will be significantly rolling out in society — Staples Inc. announced that it will soon have them at its stores, and the company Shapeways Inc. has just opened a printing facility in New York that will have 50 industrial printers making an estimated 5 million products per year. The widespread availability of industrial-level 3D printers will allow average citizens to create (or copy) 3D models on their computers, send the files to a printer at a store and simply pick up the printed products. Moreover, the prices of 3D printers are dropping so precipitously that 3D printers will soon become home appliances. Thus, the average citizen will soon have product manufacturing capability at home or easily accessible, and the ramifications for manufacturing industries and intellectual property laws are wide-ranging.
No need to buy a replacement part when one can simply print one up from a file easily created or located on the cloud. Furthermore, one can copy or modify a product and send the corresponding data file to others to have the product printed. And the familiar sweatshop making knockoff products is about to be replaced with 3D printers in corner print shops and basements throughout the United States.
The intellectual property laws of the United States have handled new technologies and manufacturing paradigms before. Those laws will protect additive-manufacturing products in the same way they protect products manufactured by assembly line. However, the distributed nature of additive manufacturing and the way that it will empower individuals and competitors is more evocative of the MP3 music-sharing paradigm than, say, the rise of assembly-line manufacturing. As a result, the use of 3D printers is likely to present a host of practical and policy challenges for owners of intellectual property rights in manufactured products.
As noted above, products, processes and information associated with the additive-manufacturing paradigm should be readily protectable under the existing intellectual property laws. And fortunately for the additive-manufacturing industry, the technology is similar to the “old” technology of assembly-line manufacture and products, making it easier for people to understand the technology and the way it is protected by IP laws.
Patent laws will protect inventive additive-manufacturing products and processes that are novel and otherwise merit protection. In fact, the U.S. Patent and Trademark Office is already starting to address this new field and is forming an Additive Manufacturing Partnership with industry to address any issues that may come up with patenting in this area. Other areas of intellectual property protection, such as copyright and trade secrets, are equally applicable to the products and processes of additive manufacturing. Despite the ready applicability of existing intellectual property laws to the additive-manufacturing paradigm, however, the protection afforded by those laws may be inadequate for some likely infringement scenarios.
Specifically, the existing intellectual property laws may not adequately allow IP holders to navigate a number of challenges encountered when “MP3s meet Barbie Dolls.” A 3D printer is potentially an infringement machine enabling physical products and parts protected by intellectual property laws to be replicated in a highly distributed, anonymous and consumer-centric manner. As a result, it may be difficult for intellectual property owners to efficiently and effectively identify and pursue infringers. The significant role of consumers may further introduce policy debates into enforcement actions, reminiscent of those that occurred in the early days of MP3 file sharing.
There are several discrete existing intellectual property protections that will cover some of the products and activities done by additive manufacturing. Utility patents are available for products and methods of creating them; design patents and copyrights can cover the new ornamentality and designs of the products. Further, counterfeiting laws would apply to those using 3D printers to create and sell large volumes of infringing products, as is commonly dealt with today. But there are activities that should have product manufacturers worried concerning the reconstruction, repair and modification of their products by those having 3D printers.
LIMITS THROUGH LICENSING
There are many activities permitted in the law — and actually favored by public policy — that may well cover what a person does when he or she “prints” a copy or modification of a product otherwise protected by intellectual property rights. For example, the law generally allows experimentation and the reverse engineering of products; thus, people should be free to “print” products as part of the reverse-engineering/experimentation process. Yet manufacturers would want to limit the ability of customers to rebuild, remake or otherwise modify the product to keep sales of its spare parts and replacement products flowing.
The 3D printer can also be used to modify existing products for appearance and functionality, e.g., making a new connector for a charger. In some cases, the modified product may be better than the original, and the person can then sell the modified product and compete with sales of the original product manufacturer. Manufacturers will likely want to limit this type of conduct as well.
One method used to control consumer conduct with respect to goods such as computer software is the use of “shrink-wrap” or “click-through” license agreements that impose numerous restrictions upon the consumer’s use of the software. The legal enforceability of these types of “adhesion” agreements will vary in almost every situation, including the extent to which they attempt to prevent legally permitted and policy-favored conduct like repair or reverse engineering. The extension of shrink-wrap licensing to a broad spectrum of manufactured products would also likely involve numerous practical hurdles, including the development (and cost) of an appropriate licensing infrastructure. Finally, even if broadly deployed and legally enforceable, shrink-wrap licensing may not adequately address all of the challenges facing intellectual property owners in the new distributed, anonymous and consumer-centric world.
The United States may in fact need to come up with a new legislative scheme to specifically address the unique legal and practical issues associated with product copying and modification in additive manufacturing. Unfortunately, legislation is often reactive and far behind the curve. Consequently, the first important issues in this area will most likely be dealt with by the courts applying existing laws to the new paradigm.
A concluding cautionary tale comes from the onset of file-sharing and MP3s. The wide-ranging effects and disruption from new technology on the music and entertainment industries are still being felt today. One has to wonder how much money those industries lost by being unprepared for the “Napsters” of the world, and then fighting to keep the old business models even when it was clear that the market would change. Companies that create and sell products that are easily subject to additive manufacturing, such as toy and spare-part manufacturers, had better take heed of the new paradigm and embrace it early because history shows that failure to respond to disruptive innovations can have catastrophic consequences. An initial, well-planned legal strategy is an important part of that response.
Lance D. Reich is a patent attorney and partner in the Seattle office of Lee & Hayes.