One of the most staggering innovations in the last few years is the creation and proliferation of 3D printing. From printing guns that can shoot to life saving organs, 3D printing has the ability to revolutionize the way business is done and to create a host of new intellectual property issues. Two of the most important issues that will arise in intellectual property include patent and copyright, though issues in trade secrets, trademark, and even antitrust may come to the fore.

Patents protect new, useful, non-obvious inventions from copying, yet require the public filing and approval with the Patent and Trade Office. On one hand, this means that once a design is patented, every unauthorized use constitutes infringement, even if unintentional. However, the cost of litigating these lawsuits can be prohibitively expensive, and these suits can drag on for long periods as each side battles over all of the elements of patentability.

Though patent litigation has mostly been limited to fights between manufacturers of 3D printing machines, it has the potential to expand into actual goods printed by 3D printers once the costs of production and copying come down enough to make 3D printed goods marketable. This has the potential to inhibit innovation using 3D printers as tools of creation. Because patent law covers unintentional use of patents, 3D printing innovators may accidentally create devises covered under patent. A showing of independent creation cannot save these innovators from liability under current law.

A common scenario surely to play out in 3D infringement cases is where one individual independently creates a design for an infringing item, then shares this design through a website which in turn allows users to print or purchase copies of the item. This simple situation creates three distinct forms of liability (without any DMCA safe harbor like in copyright): direct, inducement, and contributory liability.

Unlike patents, copyright is endowed automatically to a creative work upon the fixation point or the physical embodiment of a work. Generally, it covers original designs including music, photographs, drawings, movies, and sculptures. Because copyright attaches automatically, there is no registration process necessary like with patents. However, copyright only covers the physical design, and doesn’t extend to its function or idea embodied in the work.

With regard to 3D printing, copyright can apply to objects copied using a 3D scanner and reprinted, objects creating using computer-aided design software (CAD), or objects created from CAD files, among other uses. One notable case that has already come up involved HBO sending a DMCA takedown notice to a site offering to sell a 3D-printed, smartphone charging dock shaped like the Iron Throne from HBO’s “Game of Thrones” TV series. Though this went unchallenged, it is easy to imagine the future proliferation of such notices and related litigation.

Phil Houten

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