On the Spot Object: 3D Printing and the Intersection of Intellectual Property - Fordham Intellectual Property, Media & Entertainment Law Journal
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On the Spot Object: 3D Printing and the Intersection of Intellectual Property

On the Spot Object: 3D Printing and the Intersection of Intellectual Property

In the future, it may be common to “print” an actual physical object, like a customized piece of jewelry or a replacement part for a bicycle, from a 3D printer in your home garage. Surprised? It may come sooner than you think – and there are intellectual property issues that abound.

3D printing uses an additive technique to create an object: using a blueprint (typically a CAD, or “computer-aided design,” model created either by a designer, or by using a 3D scanner to scan an existing object) for an object, the machine a melts raw material into a thin layer and continues adding additional layers until the object is formed. The technology is currently being used to create a wide range of objects: from customized prosthetic limbs to handbags – even a pavilion made out of sandstone. Researchers are now attempting to expand the technology to more complex articles, including airplane wings and even homes.

Click the above image to see how 3D printing has been used in animation for a Dutch TV program called Het Klokhuis (The Apple Core).

Though purchasing a 3D printer is currently likely cost-prohibitive for the average consumer, 3D printing has the potential to revolutionize manufacturing and it has been suggested that it is heading for the mainstream and may soon be put to ordinary use in the home. Companies like MakerBot Industries have begun making 3D printing even more accessible, offering kits for as low as $700 that consumers can use to make their own printer at home. The printer can create objects up to 4 by 4 by 6 inches and uses two types of common plastic to make the objects. Users can download and share design models from websites such as Thingiverse, where users can share open-source digital designs for 3D printers.

There are certainly intellectual property implications as the technology evolves and becomes more widespread. Attorney Michael Weinberg of public interest group Public Knowledge recently addressed the intersection of intellectual property law and 3D printing in his essay, “It Will Be Awesome If They Don’t Screw It Up: 3D Printing, Intellectual Property, and the Fight Over the Next Great Disruptive Technology.

Weinberg foresees a problem when consumers copy existing commercial products. As the technology becomes more accessible, the ease of copying commercial product will also become easier, particularly with the ease of sharing CAD plans online in virtual 3D design repositories, as well as the existence of 3D scanners that allow an individual to scan an object to create a design model that can then be used to print the object. Patent, copyright and trademark law all have implications in 3D printing.

Weinberg notes that there would be implications in patent law if an individual copied a patented object, whether knowingly or inadvertently:  “once an object been patented, all copies, regardless of the copier’s knowledge of the patent, infringe upon that patent,” and that “unlike in copyright, there is no fair use in patent. There is also no exception for home use, or for copying objects for purely personal use.”

Copyright law has not been extended to functional objects, though as Weinberg points out, the decorative aspects of the object that “exist outside of the scope of the useful object “ are protectable under copyright law. Thus, a copy of a functional object that includes the copyrightable aesthetic elements might be a copyright infringement. Ars Technica describes an instance of such a problematic item: it is currently possible to download a model for an iconic and copyrighted Jonathan Adler chair; that chair is sold in retail stores like Neiman Marcus for $700.

Trademark law might also be drawn in, particularly if a copied object that included a trademark were made for sale. Yet, as Weinberg states, “in most cases, making products in your own home for your own personal use that include trademarks is not a violation of trademark.”

The collision of intellectual property law and 3D printing may have come sooner than anyone thought it would. Recently, 3D design repository Thingiverse received the first Digital Millenium Copyright Act (the “DMCA”) takedown notice in the area of digital fabrication. Designer Ulrich Schwanitz printed the Penrose Triangle, a famous optical illusion, in 3D, and uploaded a video of the object to YouTube. Another designer saw the video, figured out how to replicate the design, and uploaded the instructions to Thingiverse. When Schwanitz found out the instructions were available on the site, he sent Thingaverse a takedown notice. As Ars Technica explains,

“although the copyright claim was questionable at best—was Schwanitz asserting copyright in the 3D design file, the image, or the structure itself?—Thingiverse nevertheless complied with the notice and removed the offending designs.”

Though the DMCA takedown notice was later rescinded, the related issues remain active in the minds of the 3D printing community, particularly the balance between innovation and intellectual property legislation that might hinder it. A writer at the blog of Shapeways, a company that turns submitted 3D designs into physical products, reflected those concerns following the Schwanitz situation:

“We need to ensure Shapeways and Thingiverse remain a safe place to show and share ideas and products without them being copied without proper attribution and released in a matter of days thereby devaluing the original. We also need to make sure that Shapeways and Thingiverse do not become flooded with copies and knock-offs of existing designs which would move them away from being a place of innovation to one of suspicion from potential users and copyright protection authorities.”

The New York Times wrote last September that this year’s technology discussion “is all about 3D printing.”  All things considered, it is something that IP lawyers should keep an eye on: the rise of this fast-developing technology is a topic to watch for and examine, particularly as it intersects copyright, patent and trademark law.

Karen Muiter