Does 3D Printing Pose a Challenge to the Patent System?

"Quadrifolium 3D Print", Image by fdecomite

“Quadrifolium 3D Print”, Image by fdecomite

Whenever Captain Picard ordered up some of his favorite brew, “Earl Grey tea, hot”, from the Enterprise’s replicator, it materialized right there within seconds. What seemed like pure science fiction back when Star Trek: The Next Generation was first on the air (1987 – 1994), we know today to be a very real, innovative and thriving technology called 3D printing. So it seems that Jean-Luc literally and figuratively excelled at reading the tea leaves.

These five Subway Fold posts have recently covered just a small sampling of the multitude of applications this technology has found in both the arts and sciences. (See also #3dprinting for the very latest trends and developments.)

Let us then, well, “Engage!” a related legal issue about 3D printing: Does it violate US federal copyright law in certain circumstances? A fascinating analysis of this appeared in an article on posted January 6, 2016 on ScientificAmerican.com entitled How 3-D Printing Threatens Our Patent System by Timothy Holbrook. I highly recommend reading this in its entirety. I will summarize and annotate it, and then pose some of my own non-3D questions.

Easily Downloadable and Sharable Objects

Today, anyone using a range of relatively inexpensive consumer 3D printers and a Web connection can essentially “download a physical object”. All they need to do is access a computer-aided design (CAD) file online and run it on their computer connected to their 3D printer. The CAD file provides the highly detailed and technical instructions needed for the 3D printer to fabricate the item. As seen in the photo above, this technology has the versatility to produce some very complex and intricate designs, dimensions and textures.

Since the CAD files are digital, just like music and movie files, they can be freely shared online. This makes it likely that just as music and entertainment companies were threatened by file-sharing networks, so too is it possible that 3D printing will result in directly challenging the patent system. However, this current legal framework “is even more ill-equipped” to manage this threat. Consequently, 3D printing technology may well conflict with “a key component of our innovation system”.*

The US federal government (through the US Patent and Trademark office – USPTO), issues patents for inventions they determine are “nontrivial advances in state of the art”. These documents award their holders the exclusive right to commercialize, manufacture, use, sell or import the invention, while preventing other from doing so.

Infringements, Infringers and Economic Values

Nonetheless, if 3D printing enables parties other than the patent holder to “evade the patent”, its value and incentives are diminished. Once someone else employs a 3D printer to produce an object covered by a particular patent, they have infringed on the holder’s legal rights to their invention.

In order for the patent holder to bring a case against a possible infringer, they would need to have knowledge that someone else is actually doing this. Today this would be quite difficult because 3D printers are so readily available to consumers and businesses. Alternatively, the patent laws allow the patent holder to pursue an action against anyone facilitating the means to commit the infringement. This means that manufacturers, vendors and other suppliers of CAD and 3D technologies could be potential defendants.

US copyright laws likewise prohibit the “inducement of infringement”. For example, while Grokster did not actually produce the music on its file-sharing network, it did facilitate the easy exchange of pirated music files. The music industry sued them for this activity and their operations were eventually shut down. (See also this August 31, 2015 Subway Fold post entitled Book Review of “How Music Got Free” about a recent book covering the history and consequences of music file sharing.)

This approach could also possibly be applied to 3D printing but based instead upon the patent laws. However, a significant impediment of this requires “actual knowledge of the relevant patent”. While nearly everyone knows that music is copyrighted, everyone is not nearly as aware that devices are covered by patents. 3D printers alone are covered by numerous patents that infringers are highly unlikely to know about much less abide. Moreover, how could a potentially aggrieved patent holder know about all of the infringers and infringements, especially since files can be so easily distributed online?

The author of this piece, Timothy Holbrook, a law professor at Emory University School of Law, and Professor Lucas Osborn from Campbell University School of Law, believe that the courts should focus on the CAD files to stem this problem. They frame the issue such that if the infringing object can so easily be produced with 3D printing then “should the CAD files themselves be viewed as digital patent infringement, similar to copyright law?” Furthermore, the CAD files have their own value and, when they are sold and used to 3D print an item, then such seller is benefiting from the “economic value of the invention”. The professors also believe there is no infringement if a party merely possesses a CAD file and is not selling it.

Neither Congress nor the courts have indicated whether and how they might deal with these issues.

My Questions

  • Would blockchain technology’s online ledger system provide patent holders with adequate protection against infringement? Because of the economic value of CAD files, perhaps under such an arrangement could they be written to the blockchain and then have Bitcoin transferred to the patent holder every time the file is downloaded.  (See the August 21, 2015 Subway Fold post entitled Two Startups’ Note-Worthy Efforts to Adapt Blockchain Technology for the Music Industry which covered an innovative approach now being explored for copyrights and royalties in the music industry)
  • Would the digital watermarking of CAD files be a sufficient deterrent to protect against file-sharing and potentially infringing 3D printing?
  • What new opportunities might exist for entrepreneurs, developers and consultants to help inventors protect and monitor their patents with regard to 3D printing?
  • Might some inventors be willing to share the CAD files of their inventions on an open source basis online as an alternative that may improve their work while possibly avoiding any costly litigation?

 


These seven Subway Fold posts cover a series of other recent systems, developments and issues in intellectual property.


If this ends up in litigation, the lawyers will add an entirely new meaning to their object-ions.

Book Review of “The Patient Will See You Now”

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Image by NEC-Medical-137

There was great sorrow across the world on Friday, February 27, 2015 over the passing of Leonard Nimoy. (The link is to his obituary in The New York Times.) He was a renowned and prolific actor, director, photographer and poet. He will forever be best known for his remarkable portrayal of Mr. Spock on the original Star Trek series and later on in the franchise’s other shows and movies (two of which he directed). I will greatly miss him as someone who has faithfully followed Star Trek through every single adventure on the small and large screens.

I heard the sad news just shortly after I had finished reading The Patient Will See You Now: The Future of Medicine is in Your Hands by Eric Topol (Basic Books, 2015). The coincidence of these two events took on a significant meaning for me. This is because some of the tech portrayed as pure science fiction in ST has, over the 48 years of the franchise’s existence, actually came into being, while Dr. Topol’s book now proposes using smartphones to as medical testing and communication devices to revolutionize health care delivery and informatics. In part but with some major distinctions, this will be somewhat akin to the tricorder used by the crew of The Enterprise. (See also, the XPrize competition that the semiconductor company Qualcomm is running to award $10 Million for the creation of a working tricorder.)

Just as the many iterations of the Starship Enterprise undertook long voyages into new and distant parsecs of space, so too does Dr. Topol (who is a cardiologist, professor of genomics and the director of the Scripps Translational Science Institute in California as shown on the book jacket), take his readers deeply into the realms of science, technology, bioethics, economics and policy. Notwithstanding the complex inter-relationships among these topics and his well-considered proposal to use smartphones as the basis for an integrated medical platform, he manages to explain and present all of this in a highly accessible and imaginative manner. I would thus add to his lengthy list of accomplishments that he is a very effective communicator of what might otherwise have been as dry as bio-inactive dust text in the hands of another writer. His presentation in his book indeed shows an expert touch in balancing the art of his prose with the science of his profession.

So, what is all this new-fangled medical/techno-network hub(ub) about anyway? At the core of his book, Dr. Topol proposes to extend and enhance the capabilities of iPhones, Android phones and the like so that patients and doctors can use them to perform medical tests such as, among many others, checking blood pressure, cardio functions, blood and genomic factors, and even as a form of microscope. This data can then be readily uploaded for analysis and recommended treatments. This new configuration could potentially be far cheaper and faster than current methods for similar results. More importantly, this would help to democratize medicine whereby the patient owns and controls the distribution of his or her personal medical data.

In careful detail, Dr. Topol expands the notion of this alternative platform outward in assessing and proposing the benefits to everyone in the US healthcare system. This could enable the gathering and unlocking of massive troves of medical data for research and analytics to produce more accurate and meaningful test results, improve proactive preventative health programs, reach under-served communities, and perhaps reduce spiraling costs and intractable bureaucracies. He addresses the timely and critical concerns of privacy and security that generating such massive amounts of highly sensitive data would surely entail. As well, such a system might raise the incentives for the medical establishment to develop more universal standards and greater interoperability for electronic medical records systems.

Dr Topol’s other critical theme is that his proposals would redefine the balance of control between the doctor to the patient. Hence the title of his book that inverts the traditional announcement in the doctor’s waiting room of “the doctor will see you now” into a new construct where the patient has new-found precedence in their care and data. As part of his call for this transformations, he repeatedly mentions the eternal persistence of doctors’ “paternalism” as being both an anachronism and an impediment to trying to improve the healthcare system. He has a, well, healthy skepticism about this still prevalent artifact and believes it can be effectively routed around by empowering patients with the ever-increasing numbers and capabilities of their smartphones.

It would be difficult for anyone to disagree that the US healthcare system is in dire need of change for a multitude of scientific, economic and political reasons. Bravo for Dr. Topol in challenging his own profession’s conventional wisdom and proposing a truly bold plan to disrupt it and make it more responsive to the needs of patients. Rather than being an all or nothing proposition, his plan can  also be viewed as an opening gambit to incrementally move these possibilities forward.

The science and technology needed to start implementing and networking some of these systems already exist in part or in full. The bits and bytes are likely the easier part of this equation. The genuinely hard part is finding the broad-based consensus, will and the resources to get it done. This book eloquently and persuasively lays out the policy and particulars for anyone in the medical industry, medical education, government and regulatory agencies, insurance industry, pharmaceutical companies, and consumers to consider and then perhaps begin doing something.

Not only does Dr. Topol have his finger on the pulse of today’s patient needs, he likewise has it on the entire medical establishment. He has used his experience and insight to write a 290-page prescription for a new alternative treatment to re-energize an ailing system that deserves the reader’s serious consideration. Who knows? It may well be the beginning of a new path for us to try in an effort to live longer and prosper.

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For two additional recent reviews of this book I recommend clicking through to ‘The Patient Will See You Now,’ by Eric Topol, reviewed by Sandeep Jauhar, in the February 13, 2015 edition of The New York Times, and Doctor Android reviewed by David A. Shaywitz in the January 12, 2015 edition of The Wall Street Journal (subscription required).