Why Manufacturing Matters: 3d Printing, Computer-Aided Designs, and the Rise of End-User Patent Infringement
Peacock, Skyler R., William and Mary Law Review
TABLE OF CONTENTS INTRODUCTION I. THE EVOLUTION OF 3D PRINTING II. HOW 3D PRINTING FITS WITHIN THE PRESENT INTELLECTUAL PROPERTY FRAMEWORK A. The Piracy Problem 1. CADs and the Disclosure Requirement 2. The Futility of Patent-Copyright Crossover a. CADs as Representations of Facts b. CADs and Unlimited Customization III. WHY MANUFACTURING MATTERS A. Invention or Innovation? B. Is the Monopoly Always Worth the Embarrassment? C. Reconceptualizing Patent's "Lake" CONCLUSION
Manufacturers and product developers have used additive manufacturing, a process more commonly known as 3D printing, to create prototypes, mock-ups, and replacement parts for over twenty-five years. (1) Until recently, however, few people outside of those industries had even heard of the technology. (2) With the size of the printers shrinking and the availability of new source material expanding, manufacturers of 3D printers have begun to explore new avenues for the development of their product that promise to bring widespread use of 3D printers into the home. (3) If successful, the transition of manufacturing from the factory to the home will present a novel set of problems for intellectual property owners.
At the most obvious level, end-user appropriation of the manufacturing process has the potential to astronomically increase the instances of patent infringement. This result follows for two reasons. First, patent law strictly defines infringement to include anyone who manufactures an invention without authorization, whether for a commercial or a private purpose. (4) Second, the 3D printing process's digital nature establishes the technology within a realm already plagued by rampant piracy, where millions of individual violations occur within a single day. (5)
Patent owners then must face the more daunting challenge of asserting their property rights against an international multitude of anonymous infringers. Of course, patent owners could try to prosecute each infringer, assuming they have the ability to track them down, assert jurisdiction, and sufficiently prove the infringing conduct. But this approach would require more time, money, and resources than most patent owners would presumably want to spend. Instead, rights holders will likely try to diminish this new brand of patent infringement at the source: the electronic distribution of Computer-Aided Design Files (CADs). (6)
This effort will mark a dramatic shift in the prosecution of patent infringement cases. Traditionally, manufacturers brought suit for patent infringement against other manufacturers. (7) The legislature and the courts encapsulated this dynamic in the development of remedies for patent infringement. (8) After centuries of application, patent law has evolved to create a monopoly right that operates efficiently only in this limited commercial context. (9) If patent owners try to extend the monopoly to address CADs and end-user infringement, courts should approach the matter cautiously before haphazardly expanding the reach of this branch of intellectual property law.
Intellectual property law exists as the result of a "bargain" between innovators and the public. (10) Congress alone shoulders the burden of bringing new technology into harmony with the constitutional mandate to "promote the Progress of Science and [the] useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (11) How Congress navigates this duty in the face of the emergent 3D printing technology will largely depend on which side of the bargain legislators tend to favor: private industry or the advancement of the public store of knowledge. (12)
This Note will demonstrate how this bargain should be struck by first briefly introducing 3D printing and exploring the technology's development from the mid-1980s until the present, where increased access to the technology has led commentators to speculate about the role of computer-aided design files in what may turn out to be the next wave of digital piracy. …