My colleague, Miguel Abaunza, works in design and recently purchased a 3D printer. Miguel started bringing me and my roommate jewelry, some small trinkets and this really cool bulb cover I was immediately curious about the extent of these capabilities: what all could this printer actually print? Miguel pointed me in the direction of a Ted Talk in which Marc Goodman mentions that 3D printers can print in chocolate! Goodman also highlights security risks that these machines may pose as the technology advances and becomes more accessible. I became curious about the implications of intellectual property law in 3D printing.
In this post, I called on Andrew Mirsky to answer some questions I have on this topic. Andrew is an attorney with Mirsky & Company, PLLC:
First some background: 3D printers print objects. After you input a design, the print job yields a three-dimensional figure composed of tightly-welded plastic or metal. A single print job can take anywhere from several minutes to several days and can be used to create almost anything: jewelry, chairs and, as recently reported in Forbes, even weaponry. Running (on the low end) at about $2,000 USD, a 3D printers is not a common household object. However, when materials for simple objects such as a phone case can cost just pennies, this new technology can turn today’s consumers into tomorrow’s creators. The capability to make your own “anything” is seemingly awesome, yet raises complicated issues that current intellectual property law may not yet address.
BRITNIE MORRIS: In this clip, CNet AlwaysOn’s Sharon Vakin demonstrates the ease of using a 3D printer to create a homemade iPhone case. Vakin notes that a user can build a case using his or her own design, but that the MakerBot 3D printer is packaged with pre-installed templates. What are the legal implications if I use one of these pre-loaded designs to create my iPhone cases and then sell them? Am I violating MakerBot’s (or anybody’s) intellectual property? Even if my intent is not to redistribute, should I be concerned about rights issues?
ANDREW MIRSKY: Designs are protected by various potential intellectual property types, in particular copyright but also patent. For patent, both “design” and “utility” patent rights can be implicated for an invention that is printed via 3D printer, even without technically “copying” anything at all. Copyright infringement requires a showing of access to the copyrighted work as a predicate to the actual copying, since copyright protects the actual tangible original work rather than the idea. Patent, in contrast, grants protective rights for the idea, regardless of whether the product itself was copied.
ArsTechnica offers the example of a design for a spark plug, which could be protected by both copyright and a utility patent. The strength of copyright protection would depend on the uniqueness of the design – not likely strong with a an object covered by a utility-type patent, though the same object’s patent protection could be quite strong. Otterbox, a manufacturer of accessories for mobile devices, claims that it has successfully acquired 76 patents as of 2011, presumably design patents based on its large catalog of iPhone cases and other products.
Use of a 3D printer’s pre-installed templates would likely be less risky for patent or copyright infringement exposure than would make-it-yourself designs for the same types of products. That’s because one would assume that MakerBot and other printer manufacturers would be operating under licenses, whether proprietary or open-source. For copyright, simply copying and selling designs on software would constitute infringement. While patent infringement might not be immediate with pre-loaded software, infringement would be inevitable when purchasers are fully intended to make actual use of the software.
MORRIS: What about redistribution? Would the intent or non-intent to redistribute a 3D-printed object have any significance?
MIRSKY: The IP implications of 3D printing are an undeveloped area of law. This may be simply because the technology is so new and the market so thinly penetrated. As ArsTechnica points out, Hollywood studios only went after Sony when Sony introduced the Betamax, thus for the first time making home television recording a serious market reality even though the technology had existed for years. Or in other words, no great legal threat was perceived before the business reality set in. That, too, speaks to the issue of redistribution, since one-off copying may not worry a chair manufacturer about lost sales. Also, one-off copying of a chair in plastic or other cheaply available materials may never impact the furniture market, even for low-end furniture, especially when decent 3D printers cost easily several thousand dollars. That may change when printer prices fall and when down-market manufacturing goods (see, for example, iPhone cases) become easily replicable at home.
Another good resource on this subject is this podcast from Michael Weinberg, a staff attorney with Public Knowledge.
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