From Ip Goals to 3d Holes: Does Intellectual Property Law Provide a Map or Gap in the Era of 3d Printing?

• Publication year: 2017

From IP Goals to 3D Holes: Does Intellectual Property Law Provide a Map or Gap in the Era of 3D Printing?

Autumn Smith
University of Tennessee Health Science Center, Memphis

FROM IP GOALS TO 3D HOLES: DOES INTELLECTUAL PROPERTY LAW PROVIDE A MAP OR GAP IN THE ERA OF 3D PRINTING?

Autumn Smith^*

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TABLE OF CONTENTS

I. INTRODUCTION....................................................................................86

A. BASICS OF 3D PRINTING................................................................86
B. INDUSTRIAL AND ECONOMIC IMPACT.........................................88

II. MIND THE GAP: WHERE DOES IP LAW START AND STOP WITH 3D PRINTING?......................................................................................90

A. PRODUCT.........................................................................................90
B. PROCESS..........................................................................................91

1. Patent Law.................................................................................91
2. Patent Infringement.....................................................................91
3. Evolution of Software Patent Law...............................................92
4. Copyright Law..........................................................................100

C. IMPORTATION ISSUES: LOST IN TRANSLATION.........................103

III. SOLUTIONS PROPOSED IN THE WORLD OF IP...............................104

A. ROLE OF CONGRESS.....................................................................104
B. NAPSTER REBORN ?......................................................................105

IV. POLICY CONCERNS............................................................................105

V. CONCLUSION......................................................................................107

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I. INTRODUCTION

Occasionally throughout history the world is introduced to a new technology that completely changes human life, such as the printing press, the Henry Ford assembly line, and the Internet. The next wave in life-changing technology will be the three-dimensional (3D) printer, which will allow the consumer to print any item at home. Not only will people be able to print any item they need via a digital download, but they will also have the power to design it themselves. Since the more basic patents on the invention have expired, these printers will soon become a staple in the common household. 3D printers will soon be readily available, affordable and accessible, and everyday people will be printing whatever objects they desire.

However, like all revolutions that affect major consumer industries, a revolution in the law must also follow, which traditionally tends to lag significantly behind technological advances.¹ The next question inevitably will be how this technology fits into the current intellectual property framework, if at all. The entire act of 3D printing stretches across many facets of the law, as it involves a machine, a product, an underlying digital process, and often the translation of that process. This Article will discuss which of these aspects of 3D printing fit under current patent and copyright laws and which aspects fall into gaps in the existing law. The Article will further discuss viable solutions offered by scholars in the IP community and the policy implications of gaps in the law.

A. BASICS OF 3D PRINTING

A 3D printer uses instructions, a blueprint or design software from a computer to create three-dimensional objects out of hardened powder, molten or liquid substances. The materials are spread into a single-layered pattern via the 3D "print head." Once this first layer hardens, the print head produces another layer on top of the hardened layer. The print head continues this exercise until the three-dimensional object is completed, which sometimes consists of hundreds of thin, individually-stacked layers.² This process is referred to as "additive manufacturing."³ Because the 3D printer uses a layering system to build the object, an object that has interlocking, separate parts can be printed already assembled, rather than having to manually compile all of the individual parts

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separately.⁴ This would cut down on labor costs and time, as well as add to the convenience of utilizing these printers in multiple industries and fabrications. The blueprint sent to the computer to print the object is created using a computer-aided design (CAD) program. Alternatively, a CAD may be created with a 3D scanner, which can scan any object and create a three-dimensional blueprint.⁵ This process results in easy replication of virtually any object.

While initial 3D printer systems used a process of layering plastic materials, newer systems of printing may involve a variety of stronger materials.⁶ Selective laser sintering (SLS) involves releasing an initial aerosol cloud of building material, usually metals, which a laser then precisely fuses together in the shape of the object.⁷ Another process called selective laser melting (SLM) takes the process one step further by melting all the metal material before the building begins. The printer then fuses together the tiny molten metal materials. The SLS and SLM processes have both been used by NASA in rocket and launch design.⁸ As has become increasingly apparent in recent decades, many common everyday objects were first utilized and further developed by NASA. The 3D printer will not be an exception to this trend.

The 3D scanners mentioned above are also becoming more widely available. This scanning technology, also known as photogrammetry, is developing rapidly.⁹ These scanners collect data from an actual three-dimensional object to create a digital model to the exact specifications of the object. Once the digital model is created, it can then be printed using a 3D printer, making the possibilities for 3D printed objects virtually limitless.¹⁰ Photogrammerty scanners, handheld 3D scanners, and attachable 3D scanners for the iPhone and iPad are either already available for purchase or in the works.¹¹ This scanning technology has even been recognized as a highly valuable educational tool. In fact, the Smithsonian is in the process of scanning artifacts, artworks, and specimens in its museums to make available to other museums and educators. The program is called "Smithsonian X 3D," and the institution has prioritized 10% of their 137-million-piece collection for the creation of 3D digital models.¹² As this example shows,

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there are likely few industries or markets where 3D printing would not provide some substantial service, even in education. Further, the Smithsonian's confidence in 3D printing to provide near exact replicas of their priceless originals shows speaks volumes on the technology's capabilities.

B. INDUSTRIAL AND ECONOMIC IMPACT

The goals and incentives of intellectual property are inextricably intertwined with the economic impact of technology. Therefore, understanding 3D printing's affects is important to adequately view it through an intellectual property perspective. Though 3D printing is still in its early stages, the potential for the technology is astounding. These printers can produce anything from household items and spare parts to even prosthetic limbs, plastic guns, and even small houses. Websites such as Shapeways¹³ and Thingiverse¹⁴ provide a community for people to upload and download designs to print on personal 3D printers using a variety of materials such as metal, plastic, porcelain, and wax. These websites offer downloads for items such as jewelry and home appliance parts.¹⁵ Shapeways even features the ability to scan oneself at select locations in the Netherlands to create a personal miniature figurine, or "3D Selfie."¹⁶ Most notably, these printers can produce numerous human body tissues¹⁷ and even food.¹⁸ 3D printers can even print 3D printers.¹⁹

The eventual low cost of 3D printing combined with their ability to produce most physical things will fundamentally change the economics of industrial manufacturing.²⁰ Much like the Internet, 3D printers separate the content of the product from the information used to create it, which, in turn, will substantially reduce the manufacturing costs.²¹ This feature will inevitably mean that the production of items can come from virtually anywhere which will certainly

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present problems for governments and markets.²² The emergence of the "home-based factory"²³ may even change the enforcement and regulation of traditional employment laws governing earnings, hours, child-labor, workplace safety, and even unionization as the lines between work and home begin to blur. In fact, 3D printing will touch almost every area of law in existence, including gun laws, products liability, importation, contracts, environmental law, and regulatory competition law, to name only a few.²⁴ Obviously, intellectual property law is no exception and the approach to 3D printing in this area will be an important guidepost for judiciaries and practitioners when they analyze other areas at law. It is yet to be determined if this is for better or worse, as IP is often one of the most turbulent and evolving areas of the law.

Digitization of a product has already once shaken the parameters of intellectual property, particularly for that of copyright law in the area of music. Music became a nonrivalrous good in the wake of music-sharing sites, such as the infamous Napster. A nonrivalrous good is "like an idea: it need only be created once and has an infinite capacity in that once it is created there is no additional marginal cost in allowing others to use it."²⁵ It is widely accepted in our economy that a rivalrous good should be allocated to the person who values it most, which allows for freedom in production and earning potential.²⁶ Thus, under this principle, the producer of a good is given exclusive control and property rights in the good...