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"3D Printing -- It Really Exists" by Tracy J. Weinstein

3D Printing -- It Really Exists

by Tracy J. Weinstein

3D printers used to be a commodity comparable to time machines. They were something we fantasized about. They were something we imagined only our kids' kids would have a chance to see materialize. Yet here we are today in 2013, with full capability to purchase 3D printers as both manufacturers and average consumers. A 3D printer can be delivered to your home in days with the click of a mouse (and, of course, some credit card information).

The Process

The 3D printing process, originally developed in 1984 by Chuck Hull, may be used in various industries, including architecture, construction, civil engineering, the military, dentistry, medicine, biotech, and fashion. Angela Moscaritolo, Woman Receives a 3D Printer-Created Transplant Jaw, PCMAG, Feb. 6, 2012. The process of 3D printing, also known as additive manufacturing, lays materials down layer by layer to produce a physical object. Id. The printer may use materials ranging from plastic, metal, ceramic, and glass, to cheese, icing, and chocolate. Id. The material of choice is placed on a build bed or platform. The printer then reads virtual blueprints from computer aided design (CAD) and creates cross sections to use as a guideline in making the object.

Versatility

Some use the printers for personal enjoyment. Take Jay Leno, for instance. He uses a 3D printer to make customized parts for his collectible cars. Brad Hart, Will 3d Printing Change the World, FORBES, Mar. 6, 2012.

Others are using the printers to advance in their professional fields and provide safer and more efficient medical treatment. Last June, an 83-year-old woman in the Netherlands received a lower jaw transplant created from a 3D printer. Doctors chose not to do reconstructive surgery because of the risks at her age. Even though design of the jaw was complex due to cavities and grooves within it, printing only took a few hours. The surgery itself was also shortened since the implant fit perfectly to the patient. See Transplant Jaw Made By 3D Printer Claimed as First, BBC, Feb. 6, 2012.

Along similar lines, a company known as Bespoke Innovations is in the process of mastering the creation of prototypes of limbs for wounded members of the Armed Forces. The limbs would come out of the printer completely assembled and functioning and cost less than other currently used artificial limb replacements. See Hart, Will 3d Printing Change the World, supra.

For companies such as Nike and Adidas, 3D printing reduced the number of technicians and the amount of time required to create prototypes, which they use to test and develop the final product. These models, which used to take four to six weeks to complete, now take about 48 hours. The Vapor Leash Talon is Nike's upcoming cleat, which was created specifically for football players competing and training for the 40-yard dash. It took Nike only six months to go through 12 rounds of prototype iterations and make significant improvements. Peter Ha, Nike and Adidas Are 3D Printing Prototypes At "Impossible" Speeds, GIZMODO, June 10, 2013.

Even professional jewelers are beginning to reap the benefits of 3D printing. Carter Lee, a jeweler in Chicago knows that the jewelry business has never been an easy undertaking since most customers are loyal to their own jewelers, which makes it hard to expand a customer base unless you offer something unique. However, he can now create rare charms using 3D printing. This new method outshines the previous subtractive manufacturing methods, which were used to make charms because it can create a single, unbroken object in one pass. This saves time, material, and labor. For example, a fortune cookie charm was easily created despite the folded geometry intricacies of such a design. Chicago Charm Company - A 3D Printed Jewelry Success Story, 3D PRINTING INDUSTRY, Aug. 23, 2013.

Where the Law Comes In

The benefits of each of these scenarios are quite obvious. Manufacturers and entrepreneurs are saving time and money, patients are receiving better and more personalized care, and the population in general has an remarkable new gadget, which is fun for all ages. But with such advanced technology comes the potential for legal issues. The problem is that users risk illegally creating objects in the face of protected intellectual property, such as patented and copyrighted material. As of now it is not entirely clear how much 3D printing will affect protected intellectual property, but there is much about which to speculate.

Patents

Under federal law, whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of the title. 35 USC § 101 (2013). To qualify as new (also called the novelty requirement), the invention must not be "prior art," or publicly known. To be useful, the invention must have a practical application. To be non-obvious, the invention must not have been obvious to a person with ordinary skill in the relevant art. Dicksten Shaprio LLP, Intellectual Property Primer: Patents, Trademarks, Copyrights, and Trade Secrets - An Introduction to Intellecutal Property for In-House Counsel 11 (Ass'n of Corporate Counsel, 3d ed. 2008) If the Patent Trademark Office approves that each of these requirements have been met, a patent will be granted. Once something is patented, any unauthorized use of an invention is considered infringement, even if it is unintentional. See 35 U.S.C. §271 (2013).

There are three possible routes of patent infringement: (1) liability for one who "makes, uses, offers to sell, or sells any patented invention"; (2) liability for one who "actively induces infringement of a patent"; and (3) one who "offers to sell or sells . . . a component of a patented machine, manufacture, combination or composition, or a material apparatus for use in practicing a patented process, constituting a material part of the invention." 35 U.S. C. § 271(a); 35 U.S. C. § 271(b); 35 U.S. C. § 271(c).

To put this in terms directly applicable to 3D printing, a user may make a design that infringes on an already existing patent and make this widely available as a digital design file. Users can replicate the patented object since the printer gives them the capability of turning these designs into the physical objects, which enables widespread patent infringement similar to the copyright infringement we have seen in the music industry. See Davis Doherty, Note, Downloading Infringement: Patent Law As A Roadblock to the 3D Printing Revolution, 26 HARV. J. LAW & TECH 353 (2012).

How Patent Issues Play Out in the Real World

With the current trend in DIY (do it yourself) crafts and creating, 3D printers have every implication of being a huge success on the market. However, the convenient ability to print objects or tools gives rivals the capability to capitalize on exploding trends while they are still hot. For instance, last summer, children all over started wearing colorfully patterned bracelets made from small rubber bands. These bracelets are crafted using a loom to create the designs and a special c-shaped clasp, which connects the final product into a bracelet. The original creator of this craft has recently sued another company for trade dress infringement of the "c" clasp.

Besides trade dress infringement, patent owners of fad products have expressed similar fears that 3-D printing will create a fast and easy way for others to illegally get in the game. Sarah E. Needleman & Adam Janofsky, Patent Fight Erupts Over Kids' Fad, WALL ST. J., Sept. 11, 2013. The 3D printing process would help them replicate the protected intellectual property, which is used to produce the popular final product. The efficiency of the printing would allow them to get in the business while the trend is still prevalent, taking much business away from those who originally worked to design, create, and produce the product or who are licensed to used such intellectual property.

Copyright

Copyright protects artistic, creative works from the moment they are written down, painted, sculpted, etc. Michael Weinberg, What's the Deal with Copyright and 3D Printing?, PUBLIC KNOWLEDGE, Jan. 29, 2013. Unlike patents, one need not register to have copyright protection. Generally, courts apply a "severability" test in determining whether a particular object can be copyrighted. This test weighs whether you can "sever" the artistic part of the object from the useful part. If so, the artistic part is protected by copyright. John Paul Titlow, Why 3D Printing Will Be the Next Big Copyright Fight, READWRITE, Feb. 20, 2013. Basically when someone copies an original work of art, this constitutes infringement, subject to independent authorship or subconscious copying.

Directly applying this to the 3D printing world, copyright infringement is most likely to occur through the use of CAD files, which can easily be distributed over the internet. To qualify for copyright protection the CAD files must have been created from scratch or modified by a person from a pre-existing CAD file. John Hornick, Some Thoughts on Copyright and 3D Printing, 3D PRINTING INDUSTRY, Sept. 13, 2013.

How Copyright Plays Out in the Real World

The benefit of CAD is that it enables a user to tweak the design to his or her specific preferences. See Hart, Will 3d Printing Change the World, supra. Moreover, users will find it convenient that once the CAD design exists it can be easily distributed, just like any other computer file. Michael Weinberg, It Will Be Awesome If They Don't Screw It Up, 3D Printing, Intellectual Property, and the Fight Over the Next Great Disruptive Technology, PUBLIC KNOWLEDGE, November 2010. One can create a design in New York and then send the design file to a friend across the country that can then use that design to print the same exact object. Since the majority of the population is not familiar with CAD, the utility of 3D printing will depend on access to already made designs through online collections such as Shapeways and Thingiverse. See Doherty, supra. And of course the downside to this convenience is running the risk of copyright infringement.

Just the Beginning

Pirate Bay, an illegal download website, has jumped on the new opportunity by enabling people to download physical object models called Physibles. Hart, Will 3d Printing Change the World, supra. These models are infringements on copyright and patents of all sorts. To avoid illegal downloading of models and to encourage legal sharing, some experts hope for something similar to iTunes where users can purchase the CAD designs for various objects. Otherwise, there is much potential for infringement and chances of a huge detriment to retail stores and manufacturers.

So far, take-down notices have been successful in halting infringement. For example, HBO recently sent a take down notice to a maker site that posted a file containing instructions on how to print a phone charging dock that is shaped like the iron throne from the "Game of Thrones" TV series. Thomas Mahlum & Melissa Goodman, Technology: Will the Digital Millenium Copyright Act Takedown 3D Printing?, INSIDE COUNSEL, Aug. 30, 2013. Similarly, Thingsverse took down a design for figurines based on Games Workshop's Warhammer game. Although the individual who posted the design was not reluctant in removing the design, the "maker" community protested the take down. As of now it seems that take down notices are proving to be useful, but what about when someone is able to get the design before it is taken down and decides to print that design in mass quantities?

Bells ring back to the early days of music file sharing. It seemed easy to shut down illegal music sharing sites at the beginning. Then as it became popular there were just too many individuals illegally downloading to catch everyone. Eventually some artists started releasing their music for free with an entirely new philosophy on the music market and free sharing.

Conclusion

It is tempting to speculate that the same might happen with 3D printing. Patent infringement litigation can by very costly since battles between inventors and alleged infringers involve arguing over each element of the patent. See Bryan J. Vogel, Casting 3D Printing's Coming IP Litigation: Usual Suspects and Dark Horses, BLOOMBERG LAW (2013). Part of the problem for patent holders is that they are the ones bearing the burden of proving appropriate equitable relief and/or the monetary damages suffered. Id. Some commentators on the topic believe that litigation will only occur when copying reaches a commercial scale. See id. This theory seems to parallel what happened in the music industry. Since a large appeal of 3D printing is the online accessibility to the CAD designs, it is likely copying will reach that commercial scale for both, design file sharing and printing of patented products. For now the best we can do is speculate and admire that 3D printing has become a reality in our lifetime.

Tracy J. Weinstein is in her third year at New York Law School. She completed her undergraduate studies at Binghamton University, where she also played Division I Women's Lacrosse. She is currently in NYLS's Intellectual Property Job Track for Fashion Law and has contributed to NYLS's Fashion Law blog, Case Clothesed. Tracy has competed at the ABA Regional Negotiation Competition for the past two years. She wishes to thank Professor Joseph Forgione for his consistent mentorship and support.


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