Sarah Goehrke’s recent article on the University of Tennessee’s new ‘patent pending’ 3D printed face shield made me wonder - “what is going on here?” There are a huge number of open source 3D printed face shields out there, and the value of a patent on an ‘innovation’ in the field would probably be pretty small. Why bother paying to get a patent in this case?

After exploring that question, the most interesting things I found were:

• UT’s application is for a design patent, not a utility patent. That means that if the patent was ever issued it would only cover the design elements of the face shield - not any of the functional elements. In spite of this, UT only lists functional features among the benefits of the shield. UT was unable to point to any notable design elements (the ones protected by the patent) that the shield may possess.

• UT claims that the shield was made without any reference to the numerous open source face shields that are already publicly available.

This story really starts when the University of Tennessee (UT) released a story about the “UT-Shield,” a 3D printed face shield designed by Professor Maged Guerguis to help protect people from COVID. This in and of itself is (amazingly) not that unique - at this point a number of 3D printable face shields and other types of PPE have been released publicly.

However, two things about the announcement struck me as strange. The first was the ‘patent pending’ part of the announcement. The second was the license that UT planned to release the shield under.

‘Patent Pending’

When many people read ‘patent pending’ they think it means something like ‘I am about to get a patent.’ While that could be true, all ‘patent pending’ really means is ‘I have paid to create and file a patent application at the Patent Office.’ There is a long road between filing a patent and getting a patent, and the fact that an application has been filed is far from a guarantee that a patent will ever be granted.

More interestingly, ‘patent pending’ is usually used in the context of utility patents. However, the patent number touted by UT indicates that they have applied for a design patent, not a utility patent (thanks to my colleague Chris Morten for pointing this out to me).

Utility patents are most likely the types of patents you think of when you hear the word ‘patent’. They are designed to protect inventions and other functional items. Design patents - as the name suggests - are not designed to protect utility or functionality. Instead they protect ornamental aspects of functional items.

The result is an announcement that is less than it may appear at first. UT has applied for a patent but not yet received it (and may never receive it). And the patent they applied for is for the ornamental aspects of the face shield, not any of the functional elements.

This raises the question - what are the ornamental aspects of the face shield that are worth protecting with a patent? After all, they don’t give patents away for free. I asked UT if they would elaborate about what they intended to protect with the patent. The UT media team was incredibly responsive, and told me:

Here is what makes his design distinctive.

• Headband is optimized to minimize material use and weighs only 1 ounce, significantly reducing manufacturing time
• Does not need to be held on with a rubber band, thereby reducing parts that can get contaminated
• Headrest follows forehead profile curvature for long comfortable periods of use.
• Keeps the curvature of the clear visor around the face, reducing exposure to contaminants along the sides of the face.
• Visor spaced to provide maximum clearance for glasses or other wearable medical equipment
• Provides cover to prevent contaminants from entering from above.
• Ergonomic temple tips for comfortable sliding that don’t catch on hair or loose objects

These are all great functional features of a face shield! Unfortunately UT is not applying for a utility patent on any of them. Their patent can only protect decorative elements of the shield. What are they trying to protect? We won’t know until the application is released, which will not happen any time soon. What I do know is that UT’s inability to point to a decorative feature that might be protected if the design patent is ever granted does raise questions about the usefulness of the endeavor.

The License (or, a completely sui generis face shield?)

The second interesting part of UT’s announcement had to do with the license they were offering the UT-Shield under. Setting aside the fact that without an issued patent UT had very few (if any) rights that actually needed a license, I was curious how they planned to structure the license.

The license defines the shield in part as being “developed (i) without the use of any open source designs…”.

As noted earlier, the internet is currently awash with open source, 3D printable face shield designs. Even the most cursory google search would turn up scores of options, and it seems unlikely that anyone would start designing a new 3D printable face shield without trying to develop some understanding of what already existed.

I asked the UT media contact if they could clarify the term in the license. Their response was “Our position is that his design was made from scratch and is distinctive.”

I suppose there are a lot of ways to understand that response. One charitable way is to read “from scratch” as meaning “designed from an empty CAD environment instead of modifying an existing file.” That reading would define “use” incredibly narrowly in a way that excludes referring to existing designs. That strikes me as an exceedingly tortured parsing and an unlikely path to creation, but it may be their best option.

An alternative explanation is that UT’s position misrepresents the development of the shield, and that the definition of the shield in the license excludes any shield that exists in the real world.

Why Bother With The Patent At All?

The good news in all of this is that - at least as of now - it appears that the rest of the world has very little to fear from the UT-Shield. They have no patent today, and if they ever get a patent it is unlikely to cover anything functional about the shield. In fact, the majority of the value of any patent ever issued for the UT-Shield will probably be as a decoration on Professor Guerguis’ wall and a line on his CV (which is . . . fine?).

UT also gets whatever PR bump it gets from this feel good story. But, as Goehrke’s recent article documents, UT’s version of this story has now resulted in some criticism from the larger 3D printed face shield community. That criticism is completely due to the way UT handled the patent part of it. This raises the question - why bother with the patent at all?

update 6/23/20: a version of this post is now also up on Make

tl;dr: I need your help to keep 3D printers unlocked. If you know of a 3D printer that:

requires you to purchase printing material (filament, powder, resin, etc.) from the printer manufacturer (or approved vendor)

AND

uses something besides a microchip to verify the source of the material,

please email me at hello@michaelweinberg.org or dm me on twitter @mweinberg2D. Feel free to send me this information anonymously if you prefer. Please let me know soon, because the deadline to alert the Copyright Office is the end of July.

What’s Happening

Every three years, the US Copyright Office gets to make it legal to break Digital Rights Management (DRM, also known as digital locks) in certain situations. The default rule in the United States is that breaking digital locks on copyright-protected works is illegal, so the Copyright Office process is designed to create exemptions for groups with good reasons to break those digital locks.

In the past, these groups have included media studies professors who want to show video clips in class, people who want to jailbreak cell phones, visually impaired users who need speech-to-text technology to access ebooks, and - importantly for this blog post - people who want to use the printing material of their choice in 3D printers.

The Copyright Office can only grant these exemptions for three years, so every three years everyone needs to go back and ask for the exemptions to be renewed. The last exemptions were granted in 2017, so now that it is 2020, we need to renew the request.

Renew and . . . Expand?

The text of the 2017 exemption for 3D printers was pretty good. It defined the exemption as being for:

“Computer programs that operate 3D printers that employ microchip-reliant technological measures to limit the use of feedstock, when circumvention is accomplished solely for the purpose of using alternative feedstock and not for the purpose of accessing design software, design files, or proprietary data.”

Therefore, the first thing we will be doing in 2020 is asking for this exemption to be renewed.

However, you may notice that the exemption does have a caveat:

` . . . that employ microchip-reliant technological measures . . . `

This language was proposed with an eye towards the kind of chip-based verification measures 2D printers use for ink and some 3D printers use for filament.

The question this time around is if there are technologies used to limit the source of 3D printing material that do not fall within that definition. In other words, are there technologies that do not rely on microchips to verify the source of the printing material? If there are, we can use them as evidence for eliminating the caveat. If there are not, we can just ask for a renewal of the existing rule.

Do you know of a technology that does not fall within the definition outlined above? If you do, please email me at hello@michaelweinberg.org or dm me on twitter @mweinberg2D. That way I can use it as an example in the petition to expand the exemption.

This post originally appeared on the Engelberg Center blog.

Today the Engelberg Center is launching Glam3D.org, a guide for digitizing and making available 3D cultural resources as part of an Open Access program.

Digital versions of cultural resources have never been more important. Huge swaths of the world are social distancing, with cultural institutions large and small closed (or severely limited) for the foreseeable future. That makes physically accessing cultural resources impossible for many of us, leaving digital versions as our only options.

Fortunately there is an increasing amount of high resolution digital assets of cultural resources in the form of two dimensional images. Even better, more of these digital assets are available under Open Access terms - free for anyone to use without copyright and other restrictions.

There are far fewer three dimensional digital assets of cultural resources. While many GLAM (Gallery, Library, Archive, and Museum) institutions have operated two dimensional imaging programs for years, they are just starting to explore what it means to create three dimensional digital assets.

Glam3D.org is designed to accelerate that process. Co-Created by Sketchfab Cultural Heritage Lead Thomas Flynn, Engelberg Center Fellow Neal Stimler, and Engelberg Center Executive Director Michael Weinberg, Glam3D.org brings together current best practices for digitizing, storing, documenting, licensing, and distributing digital versions of 3D models. Just as importantly, it presents them in the context of Open Access. That means that as our shared cultural resources are digitized they are immediately available for exploration, inspiration, scholarly research, and commercial use - all without having to ask permission.

Glam3D.org is a guide for GLAM professionals and Open Access advocates interested in 3D digitization. It walks users through the process of creating an Open Access digitization program, including selecting objects, running the scanners, archiving the data, licensing the files, and making them available online. The site collects examples and best practices from institutions from around the world to show that these things are possible today.

We are at the beginning of the 3D digitization process. Although Glam3D.org is filled with today’s best practices, we know that those practices are rapidly evolving. That is why Glam3D.org is a collaborative online resource (you can read more about why we decided to make it a website in this companion post. We welcome suggestions and additions from the community, and hope to regularly update the site and new technologies emerge and old practices fall away.

While the site will continue to evolve, there is already lots to explore today. Dive in, take a look, and let us know what you think.

This post originally appeared on the Engelberg Center blog.

Today the Engelberg Center launched Glam3D.org, a website that guides GLAM (Gallery, Library, Archive, and Museum) institutions through the process of creating an Open Access program for the three dimensional objects in their collections. You can read more about the site in our announcement post. This post will explain why we decided to build Glam3D.org as a website.

The project that would become Glam3D.org started as a more traditional whitepaper co-authored by Sketchfab Cultural Heritage Lead Thomas Flynn, Engelberg Center Fellow Neal Stimler, and Engelberg Center Executive Director Michael Weinberg. Engelberg Center whitpapers are designed to explore topics for audiences beyond academia, while providing depth of expertise that exceeds a blog post or shorter article. Because of this, the whitepaper format seemed to lend itself to a guide for creating a 3D Open Access program. That meant thinking about it as a document that would primarily exist as a PDF.

However, once we started writing the paper, we realized that we might also want to make an online version of the paper. One of our primary motivations for this was to make it easier to navigate. As the paper grew longer we realized that many elements were deeply connected to each other. Although there are centuries of formatting tricks that make it easier for readers to navigate complex paper documents, the linking structure of websites can make that process much more efficient.

We also wanted to take advantage of the fact that we were talking about 3D objects. Our original draft was full of flat screenshots of 3D models. Why not use the 3D models themselves? One of the points of the project was that it is easy to make 3D models available to people online. A website allowed us to do that.

Finally, we knew that we were capturing a fast moving process in its early stages. Although the document captures today’s best practices, we also assume that those best practices will evolve in the coming months and years. Furthermore, we anticipate (hope?) that the 3D Open GLAM community will contribute ideas and improvements to this project as those changes happen. Tracking that evolution over a series of PDF documents can be challenging. Maintaining a website may be a bit more straightforward.

For most of the drafting process we assumed that we would produce both a PDF and website version of the paper. However, as we got closer to finalizing things, we realized that subtle differences between the two formats were forcing us to maintain two substantially different documents. Hyperlinks in the online version needed to be additional footnotes in the PDF. Citations built into 3D viewers online needed to be captions below 2D images in the document. These differences compounded as we imagined tracking improvements and community suggestions across two different, increasingly divergent, formats.

That is why, fairly late in the process, we decided to go online-only. Doing so greatly simplified the finalization of the document and allowed us to assume that all readers could interact with 3D objects and easily follow outside links. We also hope it will make it easier to maintain the site going forward.

We recognize that this decision comes with some tradeoffs. There are still many people who prefer to read longer documents as digital PDFs or printed on paper (I count myself among them). We have designed the site so that it can be easily printed in most circumstances, which we hope will soften that blow.

It can also be harder to recognize changes between versions. Updating a PDF is often a fairly involved, obvious process. Changes to a website can be more subtle. While it is easy to tell people that they can check out our github repo for changes to the site, many people find github to be a foreign, complicated platform that is hard to navigate. We will include ‘last updated’ information in the footer of Glam3D.org, which hopefully will provide some indication as to when changes occur.

Like the GLAM sector’s adoption of 3D scanning that it documents, Glam3D.org is an experiment in its early days. We are excited to hear what you think about the project, and about the decision to make it a digital resource. We certainly plan to provide updates as the practice, and the site, evolve.

All things being equal, do you want to make it easy for good actors to be good or to be able to punish bad actors for being bad?

This post is about two different ways to approach licensing questions: focusing on good actors and focusing on bad actors. Fundamentally, it is about how to weigh various tradeoffs inherent in making licensing decisions. This choice is not intended to be a dichotomy. Instead, it is more like a framework for understanding the choices that need to be made.

Recently I have found this framework to be especially useful in two contexts. The first is in situations where it is not entirely clear how the intellectual property rights you have map onto the thing you are nominally licensing. This can often be the situation in open source hardware, where some aspects of the hardware are protected (or protectable) by an IP right, some aspects are not, and it may or may not be possible to engineer around the protected parts to recreate the underlying functionality. In other words, the thing you have is protectableish in ways that are not super clean.

The second is in situations where you are hoping to engage a large number of legally unsophisticated users. This can often be the case in the GLAM Open Access world, where you are making works available to the public in the hopes that they will make use of them. In these types of situations you want as many people as possible to make use of what you are releasing. In doing so you need to assume that the vast majority of your users are casual, and very few of them will have access to lawyers that can help them navigate the specifics of the license terms.

I am not suggesting that there is anything revolutionary about this approach. It has just been especially useful recently so it seemed worth writing down in case it is helpful to someone else.

Good Actor/Bad Actor

The core concept of this framework is to optimize your licensing structure and presentation to target the actor you are most concerned about. In this context ‘good actors’ are users following your rules and behaving in ways that you approve of. ‘Bad actors’ are users breaking your rules and behaving in ways you disapprove of.

Given the choice, which one of those is your priority?

Good Actor Approach

In order to support a good actor, you want to prioritize facilitating use and removing barriers. That means you want to use broadly permissive licenses that minimize the number of obligations and restrictions imposed on licensees. You also want to avoid extensive legal language and disclaimers (even if they are substantively reasonable!) that can intimidate users and undermine confidence that they really are allowed to use the licensed works as you intend.

Good Actor Pros

• Makes it maximally easy for users to make use of whatever it is you are licensing
• Gives users confidence that you are inviting them to make use of whatever it is you are licensing, and that the terms are unlikely to change in the future
• Builds goodwill among user community

Good Actor Cons

• Likely prevents you from reserving every possible legal remedy to use against bad actors
• Allows bad actors to break some rules without facing direct legal consequences

Bad Actor Approach

In order to maximize your ability to punish a bad actor, you want to provide legal language that defines the types of permitted behavior as specifically as possible. Although there is not an inherent conflict between legal specificity and clean writing (see, for example, the Blue Oak Model License), in many cases that specificity will come with additional legal language and restrictions. Even the most user-friendly legal language can intimidate legally unsophisticated users, and each additional restriction can dissuade some (potentially good) users from making use of the thing.

Bad Actor Pros

• Reserves as many legal tools as possible to punish users who break the rules
• Maximally shield you from legal liability

Bad Actor Cons

• Can inadvertently discourage welcomes uses that users (incorrectly) perceived as beyond the scope of the rules
• May create ongoing necessity to engage with lawyers to revise rules and enforce violations

Lawyers are often trained to be conservative pessimists. As a result, we tend to undervalue the costs associated with adding one more clause to an agreement or one more disclaimer on a site. It is also true that adding the additional clause or disclaimer can allow you to prevail in litigation.

However, It is also true that many projects are not built on adversarial relationships with users. In many cases there may be real benefits to a more minimal approach that outweigh the cost of leaving additional clauses out.

None of this means that you should be legally irresponsible on how you approach your licensing. Instead, I have found thinking about empowering good actors and punishing bad actors as a useful way to help develop an approach that will help everyone achieve their goals while giving myself permission not to add that one more clause and disclaimer.

Specifically, when I think about empowering good actors as a goal of a licensing regime, it gives me something to weigh against my impulse to add additional legal language. Instead of being lazy, taking a more minimal approach is actually doing a better job of achieving the project’s goal.

Feature Image: Excerpt from The Temptation in the Smithsonian’s Open Access Judge Magazine archive. I had to crop out many geographic features of silver. There’s really nothing better than golden age political cartoons.