Downloading Infringement: Patent Law as a Roadblock to the 3D Printing Revolution
Doherty, Davis, Harvard Journal of Law & Technology
TABLE OF CONTENTS I. INTRODUCTION II. THE CAPABILITIES AND ACCESSIBILITY OF 3D PRINTING TECHNOLOGY III. PRINTING UNCERTAINTY: BRINGING PATENT INFRINGEMENT TO THE MASSES A. Direct Infringement B. Indirect Infringement: Induced and Contributory Infringement IV. BRINGING THE PATENT REGIME INTO THE ERA OF DIGITAL INFRINGEMENT A. Self-Help in the Age of Digital Reproduction B. A Digital Millennium Patent Act? 1. Notice and Takedown 2. A Novel Defense V. PRESERVING THE INVENTIVE COMMONS: A MODEST PROPOSAL A. Prior Invention, But Not Prior Art B. Establishing a Central Inventive Commons VI. CONCLUSION
The ability to create and replicate arbitrary three-dimensional objects using a single device is a technology often dreamed of by science fiction authors. Yet the past several decades have seen steady advances in additive manufacturing technology, more colloquially known as 3D printing. (1) While the current machines are a far cry from Star Trek's replicators, the capabilities of the current technology--in terms of materials, resolution, and size of the finished product--have transformed 3D printing from an expensive curiosity into a vital tool for both design and manufacturing.
Many commentators have discussed the impact of 3D printing technology on modern industry, noting the technology's potential to disrupt traditional design and manufacturing processes. (2) Indeed, the ability to create prototypes almost immediately and manufacture custom designs in a cost-effective manner may well revolutionize modern industry. But availability of this technology at the consumer level creates the potential for a different set of disruptive effects. 3D printing has now advanced to the point where consumers have ready access to the technology, either through services that print customer designs or with relatively affordable 3D printers designed for home use. (3) This development has been a boon for the do-it-yourself ("DIY") community -- the broad collection of people engaged in the "creation, modification or repair of objects without the aid of paid professionals" (4)--which quickly adopted 3D printing as part of its toolkit.
Yet this new technology puts the DIY community at risk of running afoul of patent law. Historically, DIYers have never had to worry much about infringing upon patents: even if their projects did happen to infringe, their work was individualized and difficult to replicate, and thus unlikely to draw the attention of any patentees who might try to enforce their rights. (5) Consumer-level availability of 3D printing potentially changes that calculus. With the new technology, a DIYer can create a design and then make that design available to the whole world in the form of a digital file. It then becomes easy for anyone to replicate the DIYer's work, either by sending the digital file to a third party or by printing the design on personal hardware. 3D printing thus empowers the DIY community to generate public goods in the form of useful designs, freely available to anyone with access to a 3D printer. But if one of these designs happens to infringe on an existing patent, 3D printing also enables widespread patent infringement in the form of digital downloads in much the same manner that the advent of digital music enabled widespread copyright infringement.
This hypothetical conflict between the DIY community and intellectual property holders is not a question that can be relegated to some far-flung future. Released in January of 2012, (6) the MakerBot Replicator consumer-level 3D printer sold 5,500 units by the end of August 2012, out of a total of 13,000 MakerBot printers sold since the company's inception in 2009. (7) Leading 3D printing service Shapeways reported printing over one million products for a community of over 150,000 users by the end of June 2012. (8) Thingiverse, the primary website for sharing DIYer designs, has reached an estimated average of 20,000 people per month during the first half of 2012. …