Probably, but not for a while and not in the ways we’d anticipate.  

This is an embarassingly late post.  At the beginning of the year professor Timothy Holbrook at Emory University School of Law wrote a piece (thanks Andrew!) tied to a paper he and professor Lucas Osborn at Campbell University School of Law published about 3D printing and patents.  The article appears to call for something of a copyright-ification of patents with strict liability for transmitting files for patented objects over the internet.  Today, in order to infringe on a patented object you need to make the patented object.  The article argued in favor of making it infringement to merely distribute a file that represented a patented object.  This struck me as a bad idea, but it was interesting enough that I downloaded the paper myself.  While the paper didn’t convince me, it did raise some interesting questions about the future of patent and 3D printing.

Tying patent infringement to distributing things like plans about a patented object would be a big change to the way patent law thinks about infringement.  Part of the bargain of patent law is that you get your patent in exchange for telling the public about your invention.  The public can learn from the invention, but can’t use or produce it without your permission.  Preventing people from distributing CAD files for 3D printable patented objects would make the learning part of the bargain a whole lot harder.  It could also make things kind of crazy if the USPTO started accepting CAD files as part of patent applications.  To the authors’ credit, they do a good job of cataloging all of the times that courts have declined to expand patent law in this way in the past.

That is not to say there isn’t a kind of logic to the idea.  In a world where everything can be automatically replicated with the touch of a button, it may be that the costs of turning distributing CAD files of patented objects into infringement are outweighed by the benefits of giving patent owners a way (maybe the only way?) to stop infringement.

However, that comes with a big ‘if’ that captures what I’ve grown to think of as a classic flaw in many 3D printing-related policy arguments.  To simplify, it is the leap that goes from “there is a thing called 3D printing” to “3D printers can replicate everything perfectly at the touch of a button.”  This leap skips past all of the messy details about how 3D printing can be imperfect and limited, and how those imperfections and limitations can reduce the need for revolutionary policy responses.  

After reading the article, that is pretty much where I thought I would stop: another call for revolutionary expansion of rights before the revolutionary change in technology is anywhere close enough to know if it is necessary.

However, in the second half of the paper the authors lose the courage of their convictions, and I mean that in the best possible way (really!).  This was surprising to me, especially for a law review article (the format of which was once described to me as “spend 50 pages arranging deck chairs and then 5 pages at the end making a point.”).  

I found the second half of the article to be an interesting analysis of the types of considerations that policymakers would need to weigh before making a big change in patent law: how easy is it to actually turn a CAD file into the object that represents it?  what legitimate purposes might someone download a CAD file for?  how interchangable must an object and a file that represents an object be before you can call them equivalents?  how do you quantify the benefits of widespread digital distribution of objects before exposing it to patent liability?  what costs would such a shift have on the legitimacy of the patent system as a whole?

None of these questions are necessarily new, but I found that the paper did a good job of bringing them together, walking through the analysis, and framing the argument.  It was also nice to read the analysis as framed by actual patent experts, as opposed to kicking ideas around in my non-patent expert head.

Long story short: if you are interested in patent and 3D printing the paper is worth checking out. Don’t let the argument about massively expanding patent liability throw you - the rest of the paper is full of useful analysis.

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