Doctrinal Quandaries with 3D Printing and Intellectual Property
Lucas S. Osborn · bepress Legal Repository · 2016
Three-dimensional (3D) printing technology will challenge how we think about tangible and digital objects.Objects that can be printed in three dimensions exist in a world where the difference between the tangible item and its digital representation is greatly diminished.As 3D printing technology matures, intellectual property (IP) law will increasingly need to respond to a universe in which the digital and tangible worlds move closer together.This article highlights some doctrinal difficulties with 3D printing and IP.It does not attempt to solve the dilemmas, only to catalogue them and create a framework for analyzing them.For the most part, it leaves policy questions of what should happen aside.Many aspects of 3D printing technology fit comfortably within traditional IP doctrine.For example, innovators have obtained patents on 3D printers, scanners, and "inks."But the law will encounter difficulty with digital files that contain instructions to print a physical object.Like MP3 files, these files can be shared on the Internet and hosted on peer-to-peer networks.Moreover, 3D scanners allow users easily to create and disseminate copies of tangible objects.All of this will make protecting tangible objects more difficult for IP owners. Patent Law Has Many Unanswered QuestionsPerhaps the area least ready for the 3D printing revolution is patent law.We are not talking about predictions in the far-off future.Already companies use 3D printing to manufacture finished products that could potentially be covered by patents, such as the National Aeronautics and Space Administration's various rocket parts.In addition, 3D printing allows individuals to engage in infringing activities that would have been unthinkable just a few years ago.Recently, a young design student arguably committed infringement when he scanned his own teeth and printed in three dimensions a series of Invisalign-like teeth trays to straighten his teeth.See Hope King, "College Student 3D Prints His Own Braces," CNN, Mar. 16, 2016.With 3D printing technology, infringement will be decentralized because end users will print the infringing device.The act of printing the digital file clearly constitutes infringement but is incredibly difficult to detect.Even if the patent owner detects the infringement, enforcing a patent against multiple end users is slow and inefficient.Thus, patent owners will want to control the digital files, and that is where the doctrinal difficulties begin. Patentable Subject MatterTo control digital files, a patent owner would do best to have patent claims directed to the digital file itself.But can the inventor of a new and nonobvious (physical) widget obtain claims directed to a digital file containing instructions to print the widget in three dimensions?Five years ago, _________________________________________________________________________________________________________