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Chapter 4 analyzes the doctrine of patentable subject matter. Delving into American, European, and Japanese patent jurisprudence, it first describes how these legal systems handle software-related inventions in general. Next, it applies that jurisprudence to 3D printable files to demonstrate why only one of the three 3D printing file formats is likely to constitute patentable subject matter. More intriguingly, it turns out that this file format is of least interest to would-be patent holders. In other words, a patent protection gap exists. Chapter 4 also analyzes jurisdictions’ differential treatment of patent claims directed to electronic signals. The Japanese and European patent systems consider these claims to be patentable subject matter, whereas the U.S. system does not. The upshot is that patent protection for software and 3D printable files is weaker in the United States because most 3D printable files are sold as internet signal transmissions. I argue that the United States should provide protection for signal claims.
Chapter 2 tackles a key technological concept – the various file formats used in the design and manufacturing process. These include design files (CAD), surface-mesh files (STL), and machine-instruction files (GCODE). Understanding how IP law will apply to 3D printing requires an understanding of these file formats because the law will treat each format differently. Crucially, 3D printing technology shifts economic value from tangible objects to these file formats, particularly to surface-mesh files, which are the most widely sold format. This change in the locus of economic value is important because IP law may not protect 3D printable files in the same manner as tangible objects. The chapter also describes the various kinds of 3D printers on the market and important complementary technologies, like 3D scanners. Finally, it describes the many participants in the IP ecosystem.
Chapter 10 takes a broader look at IP protection as an incentive to innovate. Patent protection gaps brought about by 3D printing technology must be viewed in conjunction with how the technology dramatically lowers the costs of innovation (and imitation) for 3D printable goods. Moreover, although patents serve as a primary incentive to innovate, they are not the only incentive. The chapter looks at other IP rights, contracts, and extra-legal appropriability mechanisms, as well as nonmonetary incentives to innovate, to determine how the IP regime should respond to 3D printing technology. I describe the need for a better empirical understanding of 3D printing’s effects on innovation incentives, but I argue that current evidence does not suggest a need for stronger IP incentives for 3D printable goods. Therefore, radical changes to patent law are not necessary even in the face of de facto weakened patents. In addition, because copyright protection is not needed as an extra incentive for utilitarian innovation, copyright law should not protect DMFs of primarily utilitarian objects.
Chapter 9 considers the role of design rights for DMFs. In it, I argue that DMFs should only receive design protection if the object they will print would receive such protection. Current practice in many jurisdictions is to the contrary. They protect any qualifying images if they appear on a computer screen. I argue that this approach impermissibly protects mere artistic images, which should be protected, if at all, by copyright law. I offer a framework for a teleological approach to design right in digital images and focus the approach on DMFs specifically. In addition, I describe how the EU Design Directive includes many important safeguards for free speech, experimentation, and private use. I recommend that the United States include similar protections in its design patent laws.
Chapter 8 focuses on a specific issue created by 3D printing technology: whether DMFs of purely (or primarily) utilitarian objects should receive copyright protection. Tangible objects dominated by utilitarian concerns do not receive copyright protection. Neither should the corresponding DMF, I argue. This novel argument has attracted criticism, but I defend it as a matter of doctrine and policy. Doctrinally, I argue that U.S. law excludes copyright protection not only for useful articles, but also for designs of (i.e., the shape of) useful articles, even if depicted in a two-dimensional drawing. Moreover, most jurisdictions around the world extend copyright protection only to works containing creativity, and I argue that DMFs of utilitarian objects contain no copyrightable creativity – they are exact, uncreative representations of the unprotected tangible objects. As a matter of policy, allowing copyright protection for DMFs of useful articles would cause copyright law, which is geared toward aesthetic works, to trespass on patent law, which is geared toward utilitarian works. In short, granting these DMFs copyright protection would inhibit the progress of utilitarian innovation.
Chapter 3 provides a short overview of IP law for those not familiar with it. It introduces the major concepts of patent law, copyright law, trademark law, and design patent law, focusing on internationally agreed upon frameworks and treaties such as the Berne Convention, the Paris Convention, and TRIPS. It also walks readers through fundamental concepts like territoriality, validity, direct and indirect infringement, and remedies.
Chapter 5 turns to patent infringement. It introduces a fundamental tension between patent holders and good faith users of the technology. 3D printing will expose unsuspecting individuals and 3D print shops to patent infringement liability when they print patented objects. To spare unintentionally infringing individuals and 3D print shops the ruinous costs of litigation, I explore options for exemptions and safe harbors. At the same time, if 3D printing enables massive, individualized manufacturing, and if the law exempts each individual act of infringement, patent rights would be eviscerated. Squaring this circle will not be easy, but the chapter explores ways to alleviate the tension, particularly by strengthening indirect infringement claims and limiting exemptions to cases where the accused infringer had no knowledge of the patent. In addition, Chapter 5 demonstrates that 3D printable files will not infringe traditional patent claims directed to tangible objects. Moreover, the most commonly traded 3D printable file format will not infringe a computer-readable medium (Beauregard) claim. Attempting to alleviate some of the protection gaps for patent holders while balancing the needs of users, the chapter considers a novel theory of “digital patent infringement.”
Chapter 7 describes how 3D printing technology will disrupt trademark law’s core function of indicating the source or origin of manufactured goods. The technology dissociates product design from product manufacturing. Design is embodied in a 3D printable file, while manufacturing is commoditized and democratized. When 3D printable files, as opposed to manufactured goods, are offered for sale, symbols appearing “inside” of the digital files (i.e., on the digital object) do not indicate the source of the file. Rather, source indicators are found “outside” of the file, on the websites that offer the files for sale. 3D printing technology will also radically disrupt the doctrine of post-sale confusion. At the same time, current, expanded theories of trademark law condemn uses of symbols that might dilute a trademark or suggest a connection to a trademark owner. These stronger versions of trademark protection, which are widely criticized, would give trademark owners to the right to control most uses of their marks “inside” of files. This would inhibit innovation and creative expression without a clear benefit to the public. Therefore, I recommend against these stronger protections for DMFs.
3D printing technology unquestionably will grow in importance in the coming years. The technology will disrupt the settled processes for the design, manufacture, and dissemination of myriad physical objects. I have used the term physitization to capture the various facets of this disruptive phenomenon whereby objects can move back and forth between digital and physical embodiments and in which economic value has spread from tangible to virtual embodiments.
They are lined up by the hundreds in the factory, working with steadfastness and precision. They do not take breaks, and yet they don’t get tired or make mistakes. They don’t complain about working conditions or bargain for higher pay. They don’t require much supervision – in fact, there is only one supervisor for the whole factory.
Chapter 6 explores the doctrines of indirect (secondary) patent infringement in the United States, Europe, and Japan, focusing primarily on novel statutory interpretation issues brought about by 3D printing technology. Indirect infringement generally requires knowledge of the patent or some sort of intent to infringe. Because 3D printing technology will empower many legally unsophisticated actors to assist – even if unwittingly – others to infringe, virtually every jurisdiction will need to clarify how to measure knowledge or intent when numerous individuals or small businesses are involved. In Europe, courts will also need to decide the fundamental issue of whether the knowledge requirement implies a culpable mental state. Additional statutory interpretation issues include what constitutes a “component” under U.S. law and what constitutes “means, relating to an essential element of the invention” under many countries’ statutes. In Japan, courts or lawmakers will need to clarify whether a “product” includes 3D printable files. The chapter concludes by recommending that courts and lawmakers resolve interpretive issues in a manner that captures at least the most egregious actors, namely, those who repeatedly and knowingly facilitate infringement by distributing DMFs.