3D printing presents new challenges to patent owners – 26 August 2014
3D printers intended and priced for the home user are now available. These printers in conjunction with websites such as MakerBot’s Thingiverse allow individuals to download and print physical objects in much the same way that music could be downloaded and burned to CDs in the 1990s. And, like the downloading of music, no doubt its popularity will rise rapidly as the technology improves, comes down in price and moves into new and unexpected directions.
In its Intellectual Property Report 2014, IP Australia (aka the Australian Patent Office) plots the development of additive manufacturing technology from its early days in the 1980s (see pages 27 and 28). The timeline refers to the following patent documents hyperlinked for the interested reader: US4575330, US5121329, US7209797, US2012/0201960.
3D printing leaves today’s patent owners in a similar position to music copyright owners in the 1990s, in that enforcing their rights is complicated by inter-jurisdictional issues that arise from transmission via the Internet. What do you do if Australian consumers use data from a US website to print products that infringe your Australian patent?
Additional challenges arise because the operator of such a website (even if the website is in Australia) may not directly infringe the patent rights. In Australia, a patentee has the right to stop others ‘exploiting’ an invention. ‘Exploiting’ includes making, using, selling and similar actions in relation to the patented invention. Supplying a computer file describing a patented product is not exploiting the product, even if someone else uses that computer file to print the product at home.
In this case, it is the home consumer who literally infringes the patent rights rather than the supplier (e.g. website operator). Of course, patentees would prefer to take action against the supplier, rather than the consumer, but this would involve a more complex and uncertain legal argument regarding the supplier’s contribution to the consumer’s infringement.
It seems that there is a need for change, and we suggest (and hope) that the solution will include measures similar to those evolving to protect the music (and film) industries.
In its recent discussion paper Online Copyright Infringement – Discussion Paper – July 2014, the Australian Government suggests allowing copyright holders to block access to foreign websites that offer copyright-infringing material. Perhaps soon we will see proposals also to block websites supplying data that can only be reasonably used to infringe a patent?
3D printing is an exciting new world. It seems inevitable that the technology will advance and grow in popularity and that the legal system will have to change, but the form of that change and the road to get there remain to be seen. How long before we see a celebrated case of a patented product going viral online? Will the legal system have changed in time? Or will that case be the catalyst for the change?
 And while we’re at it, why not block websites that appropriate others’ trade marks?