This post was originally published on Makezine.com.

As you may recall, back in November Stratasys (the company that owns MakerBot) sued Microboards Technology, LLC (the company that makes the Afiniadesktop 3D printer) for patent infringement. Specifically, Stratasys accused Afinia of violating four of its patents.

This case is important beyond the fates of Stratasys and Afinia because the Stratasys patents could potentially cover many more desktop 3D printers. Last month, the court directed Stratasys to dismiss the accusation of infringement in relation to the patent that was related to controlling infill. In short, that means that one of the four patents from the complaint (the one that covers infill) is no longer in play. Furthermore, it is still possible that the patent could be invalidated entirely.

Background

In its original complaint, Stratasys accused Afinia of infringing on four of its patents: the ‘925 patent that related to controlling infill, the ‘058 patent that related to heated build environments, the ‘124 patent that related to Afinia’s extruder, and the ‘239 patent related to a seam layer concealment method.

In response to that complaint, Afinia generally challenged the validity of all four patents andaccused Stratasys of abusing the patent system to try and monopolize the 3D printing market. The challenges to each of the patents were fact-specific, but this post will focus on the ‘925 patent because that is the one that was directed to be dismissed.

Discovery of Prior Art – And Old Stratasys Patent

The ‘925 patent covered ways to control the infill of a 3D printed object. In order to successfully receive a patent, an applicant must show that the invention is actually new. As a result, as part of the patent application process original applications are often narrowed in order to avoid “prior art.” Prior art can be anything that shows part of the proposed patent existing before the time of the patent application. If the proposed invention existed before the patent application, that shows that the invention wasn’t actually new (and therefore should not get a patent).

As part of its response, Afinia claimed to have found an example of prior art that should have prevented Stratasys from getting the ‘925 patent in the first place. But this wasn’t just any prior art. Afinia claimed that Stratasys itself already had a patent that included the invention that was being patented (again?) by Stratasys. That old patent should have prevented the ‘925 patent from ever being granted.

Accusation of Inequitable Conduct

Afinia didn’t stop there. If an old patent really did include the parts of what became the ‘925 patent, that would be enough to invalidate the ‘925 patent. However, the old patent isn’t just an old patent. It is Stratasys’ old patent. As such, Stratasys probably knew about it (or should have known about it) when it was filing the application for what became the ‘925 patent. Afinia claimed that withholding this information from the Patent Office constituted inequitable conduct and patent misuse. Essentially, Afinia was saying that Stratasys had a duty to tell the Patent Office about its old patent – and that failing to do so was a breach of good faith.

Stratasys Tries to Dismiss

After Afinia’s response, Stratasys decided to voluntarily dismiss the claims of infringement related to the ‘925 patent. However, Stratasys told Afinia that Stratasys would only dismiss the claims if Afinia also agreed to dismiss Afinia’s counterclaims – the ones where Afinia tried to have Stratasys’ patent declared invalid and accused Stratasys of inequitable conduct. Afinia declined this deal.

Soon thereafter, both Stratasys and Afinia sent short (2 page) letters to the Court explaining why Stratasys’ decision to voluntarily dismiss the infringement claims should or should not also require Afinia to withdraw the counterclaims.

Stratasys’ position was straightforward: since Stratasys was dismissing the original claim, Afinia should have to dismiss all of the counterclaims that flowed from the original claim.

Afinia responded that even if Stratasys withdrew the infringement claim, Afinia wanted to keep its counterclaims because 1) Afinia was worried that Stratasys could use the patent against them in the future (just because Stratasys withdraws the claim of infringement against this Afinia printer doesn’t mean that Stratasys couldn’t use it against a new printer – or a new defendant – in the future), 2) Afinia thought that exploring what happened with the ‘925 patent could help them uncover similar problems with the ‘058 patent, and 3) they want to recover all of the attorney fees that have been billed in order to prepare the responses to Stratasys’ ‘925 complaint.

Stratasys Ordered to Dismiss

On July 11th, the Court directed Stratasys to voluntarily dismiss the claims related to the ‘925 patent. However, it did not order Afinia to dismiss its counterclaims. Instead, after Stratasys dismisses the ‘925 claims, the court will reconsider both arguments related to Afinia’s counterclaims. If nothing else, this removes a link between Stratasys’ complaint and Afinia’s counterclaim.

What Does This Mean?

The fact that Stratasys was willing to dismiss the claims related to the ‘925 patent at least suggests that they were worried about how Afinia responded to them. That might (but does not necessarily) suggest that there is some truth to Afinia’s counterclaims. At a minimum, right now we can be sure that the current Afinia printer will not be held to infringe the ‘925 patent.

However, at least right now Stratasys is free to use that patent against other printer manufacturers. That is why the Court’s decision on Afinia’s counterclaims will become so important. If the Court dismisses Afinia’s counterclaims, Afinia will not have an opportunity to invalidate the patent. However, if the Court allows the claims to go forward, it is at least possible that Afinia could succeed in invalidating Stratasys’ ‘925 patent. If the ‘925 patent was invalidated, Stratasys would not be able to use it against anyone.

In the original post about the Afinia response, one of the things that we did not know was how strong Afinia’s legal arguments where. As of now it appears that, at least in relation to the ‘925 patent, they were strong enough to convince Stratasys to dismiss the claims.

Unfortunately, we still don’t know how this lawsuit will impact the larger 3D printing industry and community. It increases the likelihood that Stratasys will not use its ‘925 patent against other companies, although does not guarantee it. Beyond that, we do not know if Stratasys’ patents will be upheld, overturned, or if the issue will be settled without resolution. Furthermore, we do not know what Stratasys intends to do with any patents that survive this lawsuit.

One other thing that we know is that the full trial date is set for Dec. 1, 2015. Between now and then we can be pretty sure to see a ruling on Afinia’s ‘925-related counterclaims. And it is at least possible that we see more rulings on other Stratasys patents and Afinia counterclaims.

The final thing we know is that the growth of desktop 3D printing continues. And that’s a good thing.

Today Public Knowledge sent letters to AT&T, Sprint,T-Mobile, and Verizon as the first step in the process of filing open internet complaints against each of them at the FCC.  The letters address violations of the FCC’s transparency requirements, which are the only part of the open internet rules that survived court challenge. 

Specifically, they call on AT&T, Sprint, and Verizon to make information available about which subscribers have their wireless data connections throttled and where that throttling happens.  The letter to T-Mobile calls on it to stop exempting speed test apps from its practice of throttling some users, thus preventing them from understanding actual network speeds available to them.

The transparency requirement imposes an obligation on ISPs to “publicly disclose accurate information regarding the network management practices … sufficient for consumers to make informed choices regarding use of such services.”  The carriers’ practices with regards to throttling fail to live up to that obligation.

This blog post explains Public Knowledge’s concerns with the policies of AT&T, Sprint, and Verizon first.  It then explains our concerns with T-Mobile.

AT&T, Sprint, and Verizon

Who is Eligible for Throttling?

All three target subscribers who use larger amounts of data each month.  All Sprint subscribers are eligible for throttling, while AT&T and Verizon limit throttling to those subscribers holding on to legacy unlimited data plans.  Once a subscriber hits a threshold, she may be throttled during times of network congestion.

AT&T sets that threshold at a specific level – either 3 GB per month or 5 GB per month, depending on their phone.  However, both Sprint and Verizon set that threshold and the far more opaque “top 5 percent of users.”  Sprint suggests that this number is around 5 GB a month, but admits that the actual number will fluctuate on a month-to-month basis.  Without access to network information, it is impossible for subscribers to translate “top 5%” into an actual data amount on their own.

In light of this, we are calling on both Sprint and Verizon to publicly publish monthly information about where the 5% threshold is located.  Failure to do so prevents consumers from being able to make the informed choices regarding use of services referenced in the rule.

When and Where are Subscribers Throttled?

Regardless of the threshold, subscribers are not automatically throttled as soon as they reach it.  Instead, they are merely eligible for throttling.  Subscribers will only actually be throttled when they are attached to a congested part of the network.

Unfortunately, as with the 5% threshold, it is impossible for subscribers to know where those congested parts of the network might be.  That is why we are calling on AT&T, Sprint, and Verizon to publish real time information about network congestion events that would trigger throttling for eligible subscribers in order to comply with the rule.

Comparing Offerings

One of the reasons that transparency is such an important part of the open internet rules is that, to the extent consumers have competitive choices, it makes it possible to compare one carrier to another.  AT&T, Sprint, and Verizon’s current policies make that impossible.  If I am a heavy data user, I can’t easily compare how much data will actually trigger throttling.  Similarly, I can’t look at maps of the places that I frequent to determine if they are likely to be congested (and therefor throttled).  Transparency can fuel competition, which is why compliance with transparency rules are so important.

Open and Accessible Formats

In our letters, we emphasize the importance of making this information available in open and accessible formats.  This is important for at least two reasons.  First, it makes it easier for third parties to package that information in ways that are useful to subscribers.  Instead of being forced to rely on whatever alert system AT&T, Sprint, and Verizon decide to make available, releasing this information in an open and accessible format will allow outside developers to create tools that bring alerts to people in ways the prefer.

Second, open and accessible formats make it easier for outsiders to understand exactly how AT&T, Sprint, and Verizon are implementing network management practices.  This type of monitoring was one of the key drivers of the transparency rule in the first place.  As the FCC explained in its open internet order:

A key purpose of the transparency rule is to enable third-party experts such as independent engineers and consumer watchdogs to monitor and evaluate network management practices, in order to surface concerns regarding potential open Internet violations.

This type of evaluation is much easier when the data that fuels it is freely available.

T-Mobile

T-Mobile’s policies also raise transparency concerns, although those concerns flow from slightly different behavior.  When a T-Mobile customer reaches her clearly defined data cap, her connection is automatically throttled regardless of how congested the network is.  This sets them apart from AT&T, Sprint, and Verizion. 

However, that throttling is not universal.  In addition to exempting select music services, T-Mobile exempts speed testing services from throttling.  As a result, even when a customer is being throttled a speed test will indicate that she is connected to a fast 4G network.  Unfortunately, when she tries to use that network it is throttled to unknown “2G” speeds.

When a customer performs a speed test, she is rarely curious to explore the theoretical maximum speed of her network.  Instead, she wants to determine exactly what speed her network is actually providing her.  T-Mobile’s policy of exempting speed test apps make it very hard for throttled T-Mobile subscribers to come by that information.

What Happens Now?

These letters are the first step in the open internet rule formal complaint process.  Once ten days have passed, we can file a formal complaint to the FCC.  At that point, AT&T, Sprint, T-Mobile, and Verizon will each have an opportunity to reply to our complaint, and we will have the opportunity to reply to that reply.

Of course, that process can stop at any time.  As soon as AT&T, Sprint, T-Mobile and or Verizon comply with the transparency rule, we will drop our complaint.

Image credit: Flickr user tiff_ku1

 

Yesterday Shapeways (the 3D printing company) andHasbro (the company that makes My Little Pony, among other things) announced a new website calledSuperFanArt.  The site allows fans outside of Hasbro to create and sell their own My Little Pony characters and creations.  It especially draws on the Brony My Little Pony fan community (more on Bronies in text form here and video form here).  This is the latest encouraging sign that rightsholders are interested in learning lessons from the past decade.  By inviting fans to build off of My Little Pony shows and create – and even sell – new characters, Hasbro is partnering with their fans instead of suing them.

Learning from History

When discussing the future of 3D printing, we sometimes talk about learning from the first decade or two of the internet.  Specifically we talk about learning from the experience of the music industry, as it was probably the first high profile industry to be disrupted by the internet.

Broadly speaking, the music industry responded to the internet in three (sometimes overlapping) phases.  The first was to try and sue its consumers and (in some ways) the technology itself to try and prevent the change from happening.  That approach didn’t work.  It was wildly expensive and helped to alienate a generation of potential customers, but did not stop the change in the industry.

The second was to try and lock down music with elaborate digital rights management (DRM) designed to make it hard to copy music files.  For better or worse, that didn’t work either.  Infringers were able to defeat the digital locks, but the locks prevented legal customers from making legitimate uses of the files they had purchased.

Finally, the music industry decided to find a way to meet the public demand for music by making it easy to legitimately purchase music and by licensing online music services.  This has been its most successful response.  While there are still plenty of ways the music industry can do better – especially on the licensing front, where a handful of mega-companies tend to slow down innovation – generally speaking this “give people a way to pay you for what they want” approach to disruption has been the most successful.

Why is this history important?  The challenge for industries that may be disrupted by 3D printing is to find a way to skip phases one and two (“sue customers” and “try to create fancy digital locks,” respectively), and move directly to phase three (“let people pay you”).  This is obviously easier said than done, but history suggests it is the key to making it through disruption.

Hasbro Embraces Change

By partnering with SuperFanArt, Hasbro appears to have jumped right to phase three.  There was clearly a community of, well, super fans interested in creating new My Little Pony characters and generally extending the My Little Pony Universe.  Many of these types of fan works are likelyprotected by fair use.  But creating and selling My Little Pony figurines is something that, at a minimum, Hasbro could have tied up in lawsuits for years.

To its credit, Hasbro decided not to sue this community of super fans.  Instead, they found a way to give them a license to create and profit from their creations.  Creators on SuperFanArt can now confidently sell fully licensed versions of their works.  The community gets the ability to thrive, Hasbro gets to build good will (and, presumably, a cut of sales), and no one gets sued.  As HBO proved last year, there was nothing inevitable about Hasbro going this way.

Is This A Model?

Obviously, it is too early to know if this will be successful.  The details of the license involved will matter, as will the reaction of the artists involved and the larger Brony community.  That being said, when compared to the ways in which other industries have responded to disruption this is an encouraging development worth monitoring.

Image Credit: Flickr user klonoaxero

A story over at the Awl about HBO trying to erase its past provides another stark reminder of the importance of ownership – real ownership – in a world full of digital downloads and streaming. 

We’ve been talking about digital ownership and digital first sale for a while – PK VP of Legal Affairs Sherwin Siy wrote an entire whitepaper about it.  Fundamentally, digital ownership is important because increasingly when you “buy” a digital thing online you don’t really own it.  Instead, you click through some long terms of service agreement and “license” it.  That distinction matters – if you are licensing something you are not really buying it, and if you are not really buying it you don’t really own it.

Non-ownership plays itself out in all sorts of ways.  Because you don’t own those digital goods, you may not be able to lend them to someone else, or resell them, or even pass them on to your heirs when you die.  Similarly, because you are only leasing them, rightsholders can reach out after the “sale” and simply make the files disappear.

This non-ownership also means that it is easier for rightsholders to rewrite history, which brings us to Mr. Show – one of early HBO’s classic sketch comedy shows – and HBO Go – HBO’s on-demand streaming service.

In the Awl piece, John Herrman points out that HBO Go’s selection seems to skew heavily towards its “prestige programming” and away from the “late night softcore porn and of-the-moment comedy specials” that defined HBO’s formative years.  Even recent shows that never quite caught on – the Lucks and John From Cincinnatis of the world – are edited out in favor of HBO’s critical successes.  In other words, Herrman suggests that HBO is selectively editing its history to play up its successful prestige programming at the expense of its somewhat more rough and tumble roots.

Regardless of the motivations behind HBO’s editing, it paints a somewhat disturbing picture of the future in an all-streaming world.  When you are only renting something, the rightsholder can take it away and make it disappear at any time for any reason.  That gives them the power to alter their own history.

This may be most vividly illustrated by the fate of Mr. Show.  As Mr. Show’s creators point out at pretty much any opportunity, HBO hates Mr. Show.  Perhaps as a result, Mr. Show is not available on HBO Go.  Fortunately, Mr. Show is available on DVD, which means it is actually available to really purchase and to really be owned by the public.  This availability for actual purchase means that even if HBO were to try and bury Mr. Show, it would still be available in physical, owned copies that could be legally lent, sold, or passed down to heirs as their owners saw fit.

That user control stands in stark contrast to a world where everything is leased and nothing is owned.  If shows have only been streamed or leased through digital stores, the rightsholder will always have the ability to make them (or at least legal copies of them) disappear.

None of this means that we should be stuck in a physical-only world.  The solution to non-ownership is not to mandate everything be released on DVD or some other physical format.  Instead, the solution lies in recognizing the ways that streaming and leasing impact the balance at the core of copyright and look for ways to restore that balance.  Keeping up with technological advancements should not require everyone to give up rights that are basic to the copyright bargain.  And the worst thing would be to give up those rights without realizing it until they are already long gone.  At that point, we may not even remember what we have lost.

This article was originally published on Makezine.com.

Last month, 3Dprintler.com ran a blog post about “Canada’s First STL IP Infringement Case.” I can’t say if it was the first STL infringement case in Canada, or even if there was any infringement under Canadian law. However, this case provides a good opportunity to examine some of the principles related to digital files, 3D printing, and intellectual property from a U.S. legal perspective. At Public Knowledge I’ve been writing about these topics for years.

To contextualize this situation for Make: magazine’s United States readers, I’ll analyze this case as if it happened in the U.S. and was subject to U.S. law.

The story itself is fairly straightforward.  Michael Golubev, the post’s author, put up some files for parts to a quadcopter (a type of remote control helicopter) on the sharing website Thingiverse.  Those files were licensed under a Creative Commons Attribution – Non Commerciallicense.  At some point, the parts appeared for sale on CanadaDrones.com, apparently in violation of both the attribution and the non-commercial requirement of Golubev’s license. Golubev felt that his intellectual property rights were being infringed and sued CanadaDrones.com. The suit was quickly settled, with the parts being taken down from CanadaDrones.com and the individual responsible for the sale removed from his position.

A Bit of Background

Before getting into an analysis of what actually happened here, it is important to flesh out a bit of background. First, what are we even talking about? An STL file is the commonly accepted file format for 3D printed objects. It is something akin to a PDF file for objects — more or less universally accepted, and also something of a pain to work with. In this case the file in question represents parts for a quadcopter.

Second, when thinking about 3D printing and intellectual property law it is critical to keep in mind that you are often working with two separate elements: the object and the file. This can be confusing, but it is important to understand. In many traditional copyright cases, there isn’t really a distinction between the file and protected work. When you write a novel or take a picture, the novel or picture only really exists as the file so you can treat them as the same thing. That novel or picture does not exist outside of the file.

This is not really the case with 3D printed objects. In the world of 3D printing, the file and the object are distinct. This distinction becomes important because intellectual property law may treat the object and the file that represents the object completely differently.

Third, the distinction between copyright and patent is also going to come into play here. Briefly, copyright protects creative (nonfunctional) works. That protection attaches automatically the moment the work is created. In contrast, patent protects functional objects. Unlike copyright’s automatic protection, you need to apply to get a patent.

With that bit of background, we can take a closer look at what happened here.

The Object

Golubev’s parts, not his STL file, is what was being sold on CanadaDrones.com. When Golubev saw the part for sale without permission, he assumed his intellectual property rights were being violated and sued. But (and again, this entire exercise is using U.S. law so it may not actually apply in Canada) it is not entirely clear that Golubev had any intellectual property rights to the object.

The part in question is a bracket to mount a video transmitter. To that end, it is pretty close to a perfect example of a “functional” object. It is designed to perform a specific task (mount a transmitter), and its design is dictated by the practical requirements of attaching the transmitter to the quadcopter.

As such, we can be pretty sure that it falls outside of the scope of copyright protection. The mount may be protectable by patent, but there is no evidence that Golubev applied for or received patent protection for his bracket.

The result? It is likely that the bracket is not protected by any sort of intellectual property right at all. This means that no one needs permission from Golubev to copy, improve, or build upon the bracket. It could be sold far and wide without permission. For the object itself, Golubev’s Creative Commons license is irrelevant. CanadaDrones.com did not need Golubev’s permission to produce the bracket, and did nothing (legally) wrong when it decided to do so. Golubev may not have approved of CanadaDrones.com’s decision to reproduce and sell the mount he designed, but that did not give him a legal right to stop them.

This is a big change for anyone who is coming from a world of code, photographs, movies, and music — all things that are protected by copyright. Once you are in the world of functional, physical objects, you can no longer simply assume that there is some type of intellectual property protecting everything.

The File

If we were just talking about the object, this would pretty much be the end of the analysis. But, remember, with 3D printing we are often talking about two distinct elements — the object and the file. And in this case, the file complicates things a bit.

Unlike a functional object, a file is just code. And code is generally protectable by copyright. That means the even if the object is not protectable by copyright, the file may well be.

If the file is protected by copyright, then CanadaDrones.com would need permission to make copies of it. In this case, Golubev gave CanadaDrones.com and everyone else permission to make copies, as long as they did so noncommercially and attributed the design to him (that’s what that Creative Commons license was doing). If CanadaDrones.com made copies of the file (say, by downloading it or copying it to various printers), they could be violating Golubev’s copyright in the file, even if they were not violating any rights in the physical object itself.

Of course, because nothing is ever easy, this part of the analysis is subject to two additional caveats (sorry about that). First, this only applies to the file itself. If CanadaDrones.com managed to reverse engineer the mount without copying Golubev’s file, there is no infringement because they would not have copied the file itself.

Second, and this is the more complicated one, it may very well be that while code is generally protectable by copyright, the code that simply represents an object is not protectable by copyright.  This possibility is explained in a bit more detail on pages 14-19 of this whitepaper. The short version is that if the only way to represent the physical object digitally is with code that looks an awful lot like Golubev’s, Golubev’s STL file does not get copyright protection at all.  And if the file is not protected by copyright, copying it without permission is not infringement.

The Pictures

At the risk of complicating things further, there is one other element to flag here. As part of Golubev’s Thingiverse page for the mount, he took pictures to give people a sense of how the mount looked and provide a bit of context for its use.

Those pictures are pretty clearly protected by copyright, and CanadaDrones.com’s use of it without permission is straightforward copyright infringement. We could ask if Golubev had permission to use some of the images incorporated into his picture (or if he would even need permission to do so), but let’s just ignore that for now.

The Result

This leaves us in an interesting place. It is a pretty safe bet that CanadaDrones.com did not violate any intellectual property rights by copying the physical object. And it is a debatable proposition if they violated any intellectual property rights by copying the file. Setting aside the use of the picture, Golubev’s claims of infringement are not a slam dunk. When Golubev sued, did CanadaDrones.com push back?

Fortunately, the answer is no. Instead of getting caught up in the legal technicalities and taking this to court, CanadaDrones.com quickly negotiated a settlement with Golubev. The settlement was a reasonable one. CanadaDrones.com paid the fees that Golubev incurred when he filed the suit, mailed him a letter of apology for the incident, and fired the employee responsible for taking the object in the first place.

It may be that a letter would have achieved the same thing as a lawsuit, but as an outcome this feels like a strong one. CanadaDrones.com avoided paying for a lawsuit and all of the bad publicity that would have accompanied it. Golubev got his mount removed and an apology. Everyone walked away happy, regardless of the legal merits of the case.

As a standalone case, it is good to see it resolved amicably and with minimal legal intervention. But as a case study, it is also helpful in thinking about how intellectual property and infringement fit in with the world of 3D printing.

If nothing else, hopefully this example illustrates that throwing around terms like “infringement” in the 3D printing context is somewhat more complicated than music or movies. This is a complex area, made all the more so because so many of us learned everything we know about infringement in the more cut-and-dry world of copyright.

Going forward, we will all end up figuring this out together. But for now, it will be important to remember that just because something is copied does not mean it is infringing. While that can be disconcerting, it can also be a great opportunity. After all, it serves as a reminder that the physical world is full of things for you to copy, build upon, and improve without permission. And that is a great opportunity for everyone.

Image credit: Flickr user Adam Meek