Thursday 28 February 2013

The IP Puzzle That Is 3-D Manufacture

Perhaps the last place I had planned to encounter a cutting-edge issue regarding IP was in the column by James Saft, "The Coming Dollar Bull Run", which appeared in the February 26 issue of Reuters, here The article considered the economic reasons why, according to Saft (and others), the U.S. dollar will become the currency of choice, leading to its strengthening vis-à-vis other currencies. Against this backdrop, towards the end of the piece, the following observation was made:
"Don't underestimate the power of the energy and manufacturing changes now taking root in the U.S. More domestic energy means less money sent overseas and will also tend to make manufacturing at home more internationally competitive. The U.S. also appears to have substantial strengths in the development of 3-D printing, in which highly customizable objects are literally sprayed into existence. To the extent it develops, 3-D manufacturing will be located close to markets and in places where intellectual property - a large part of a 3-D manufacturer's value - are well protected."
Much of the debate about U.S. manufacturing is whether it has arrested and even clawed back some of the position that it once enjoyed on the world business stage. The notion that 3-D manufacturing (a.k.a. additive manufacturing) could serve as a lever significant enough to change the world position of US manufacturers, and that IP will be a central element in that predicted transformation, was something that I had not directly encountered previously. This challenged me to consider Saft's comments further.

First, a brief description of what is meant by 3-D manufacturing. As described by Makerbot, a leader in the world of "3-D printing, also called additive manufacturing, means making things layer by layer according to a 3-D design file. This differs from traditional manufacturing, such as machining, which often involves subtracting a material in order to achieve a certain shape." Per se, 3-D manufacturing has been around for a while, here. What is new is the way that the technology has become scalable and affordable as never before. Customized manufacture, literally on one's desk, will soon be available to a huge swathe of the population.

How does IP fit into this? As with any disruptive technology that promises to improve our ability to both manufacture and distribute products,rights holders may be challenged to protect their interests in the face of the new technology. Think the printing press, photocopy machine, stand-alone PC and the internet—and now, the personal 3-D manufacturing device. The particular challenge raised by 3-D manufacturing seems to focus on copyright issues. In that connection, Rimmer reports the observations made by Michael Weinberg, a researcher for the NGO Public Knowledge here. Thus, Weinberg notes that:
" '[w]hile there are copyright implications for 3D printing, the fact that copyright has traditionally avoided attaching to functional objects – objects with purposes beyond their aesthetic value – may very well limit its importance.’ He comments: ‘Copyright law has long avoided attaching to functional objects on the grounds that patent law should protect them (if they should be protected at all).’ Nonetheless, Weinberg observes: ‘It is unavoidable that some functional objects also serve the types of decorative and creative purposes protected by copyright.’ "
This concern is heightened when files are posted for all to use in their own 3-D manufacture, where third parties have sought to challenge the legality of the files under the copyright laws. It is fair to say that the resolution (and possible legislation) of copyright challenges posed by 3-D manufacturing is only in its infancy.

All of which brings us back to Saft's assertion that effective IP protection in connection with respect to 3-D manufacturing will serve to aid in the continuing renaissance of US manufacturing. I must confess that I am not certain if I fully understand why this should be the case. For one thing, the US will not enjoy a monopoly in the use of 3-D manufacturing technology; other countries with robust IP enforcement systems will also successfully take advantage of the technology. Secondly, it is not clear in which direction IP protection will go—and in particular whether greater or lesser copyright protection will be accorded. Thus, arrangements for public access of 3-D manufacturing designs might well result in low, rather than high copyright protection, where the interest of the common good is placed above the rights of any single individual. Thirdly, IP protection might not really matter at the end of the day; the correlation between successful 3-D manufacturing and robust IP protection might be low.

From the IP perspective, it will be exciting to see how all of this plays out. But protection for 3-D manufacturing in the service of a strengthening US dollar—well, for me, the jury is still out.


Michael Thesen said...

Interesting questions not only for copyright but also for patent- and design protection. Will sharing a file for 3D-printig a patented spare part be considered induced infringement?

Jackie Maguire said...

Indeed! The UK is in there too - see

Jackie Maguire said... is a technology that could bring registered designs (in the European sense) and 3D trademark registrations to the fore. If it takes off virally (as digital home printers have done), then these rights become valuable mechanisms for monetisation.

Unknown said...

The scenario described in the article, i.e. posting 3D files online allowing everyone to download and print them on their own house, is likely. And this would/could amount to contributory infringement. But if downloaders are printing patented spare parts for private, domestic and non commercial use, then patent law provides an exemption to infringement. And when there is no primary infringement, there can not be secondary liability either! Thus, going after providers would not make sense, while going after downloaders is economically inefficient, as we already know.
So the question arises> is UK law ready for the "3D revolution"?