The makings of an 'individualized-industrial' revolution: three-dimensional printing and its implications on intellectual property law.

• Author: Khoury, Amir H.

Introduction

The Reality of Three Dimensional Printing

Every decade or so, a new innovation comes along that shuffles the cards as far as Intellectual Property law is concerned. Suffice it to mention: the printing press; home VCR; MP3; YouTube; P2P file sharing; and robust reverse engineering of medicines and machines. (2) Now a dramatic new 'shuffler' is upon us. (3) We are one foot in the door to the era of full 3D printing of physical items. (4)

3D Printing, or what is also referred to as "Additive Manufacturing", is a process of making three-dimensional solid objects from (generally) a digital file. (5) In this process of creation, the object is created by laying down successive layers of material until the entire object is created. (6) Effectively, each of these layers is a single thin horizontal layer in a cross-section of the object being created. (7) 3D Printing is, basically, the reverse of slicing an object into thin horizontal slices. (8)

This research is comprised of two chapters. In the first chapter I highlight and consider the far reaching impact of this technology in three levels (or dimensions): the technological-industrial; the commercial-social; and the legal-regulative. This first chapter is intended to allude to the challenges looming ahead and to identify and explain their conceptual background. As such, this chapter is intended to creating the awareness of the looming three dimensional challenges that 3D printing brings forth vis-a-vis intellectual property protection and regulation. In the second chapter, I discuss a host of specific issues that need to be considered when approaching this new challenge. As such, this chapter, indeed the entire paper, opens the door for a broader research project that is intended to provide a comprehensive model for resolving the challenges that are identified therein. In this capacity, my present paper lays the groundwork for a broader research project which is intended to provide specifically trailered rules and procedures for dealing with the challenges posed by 3D Printing. All of this is done with a view that this amazing new technology (which is now upon us) has many benefits but also may entail many costs. Thus, the ultimate aim of my research is to seek after and explore the path towards the optimal balance wherein we can reap the benefits of this technology without paying too hefty a price (in all of the above-mentioned dimensions) for its use.

Chapter One

The Nature and Three Dimensional Impact of 3D Printing

What is printing? Well, simply stated it is a way to clone stuff. (9) Until now we have done it with words, images, and music. (10) In this regard, the process of replicated content that exists is part of our reality as we know it. (11) However, when printing becomes three dimensional; that is, when it allows the user to regenerate 3D objects, then the entire paradigm of printing, as we know it today, changes. (12) It is no longer about seeing the object; it is now about having it, possessing it and using it. (13) Now, we are faced with the reality, that the tools that have been set up to protect intellectual property are thrust into a new theater where the rules of engagement (for lack of a better term) are drastically different from what we have come to know thus far. (14)

In this chapter, I shall show why 3D printing has a three dimensional impact on the protection of intellectual property. The aim here is to create awareness to the scope of the challenge and to show why we are at the doorstep of a new Industrial Revolution, no less! But this revolution, indeed as the entire field is of a new nature, it is an 'Individualized' Industrial Revolution. It is one that empowers the individual to be the master of his choices. Crucially, this empowerment has costs that are detailed in this chapter.

1.1 The Technological-Industrial Impact of 3D Printing

As stated above, Three Dimensional Printing or what is also referred to as "Additive Manufacturing", is a process of making three-dimensional solid objects from (generally) a digital file. (15) In this process of creation, the 'new' (printed) object is created by first copying the 'target' object, including its functional features and then by laying down successive layers of material until the entire new object is created. (16) Crucially, the real drama is that these printers are not only capable of replicating the shape of a target object, but that they are able to replicate its form as well!17 That is to say, that the printed object can function, (or be utilized), in the same way as its related target object. (18) This functional printing is a reality; it has already been achieved in the case of wrenches, handguns, and other tools and gadgets. (19) There is no longer room for doubt: 3D printing is on a rapid rise and about to take the world by storm. (20)

From the outset, it is worth noting that "the use of printing machinery to manufacture physical objects created digitally ... [(e.g. Computer-Aided Design (CAD)) is not new,] ... and it is actually the standard in many industrial fields, [such as] aeronautics and home furniture." (21) But this is only the beginning. (22) According to Margoni: "[t]he change in recent years that has the potential to be a paradigm shifting factor is a combination between the popularization of such technologies (price, size, usability, quality) and the diffusion of a culture based on access to and reuse of knowledge. We will call this blend Open Design." (23) My prediction (based on what we already know) is that this type of Open Design through 3D Printing is set to change the world, no less, and in this process Intellectual Property (IP) is expected to be greatly impacted by this. (24) Even now, 3D Printing is creating the miraculous, almost tele-transporting objects into being. (25) These 3D Printing machines (or robots) are now being able to print objects, tools, gun parts, and even human bone tissue and human organs. (26) In essence, the replication of the unthinkable is now becoming a reality. (27)

According to Schissel "[l]ike many new technologies, 3D printing raises a number of legal questions and challenges, particularly challenges related to the unauthorized reproduction of products protected by intellectual property (IP) rights." (28) Indeed, this type of observation is now typical of the general recognition of the impeding impact of 3D printing. (29) According to Brean, "3D printers fundamentally alter the traditional allocation of manufacturing infrastructure and sales activity, whereby, manufacturers no longer need to make, sell, and ship physical products in their physical states." (30) Rather, Brean points out that "consumers may download digital representations of products over the Internet for printing in the comfort their own homes". (31) Osborn goes further in observing that "[t]here-dimensional printing is invading society, bringing with it the ability to "print" objects (atoms) from computer files (bits)." (32) Posting a computer CAD file of an object (an illegal gun or an infringing shoe) to the internet essentially makes the physical object available to the world. (33)

Imagine, if you will, the impact that this technology will soon have on large scale manufacturing, shipping, warehousing, outsourcing, mass production and others. (34) All of these are set to dramatically plummet as the demand curve is altered given that individuals can now print (indeed create) much of what they need and effectively produce it at home. (35) These machines are projected to become to industry what the digital camera became to the photography industry. (36) Essentially, 3D will soon shift a large part of what is (legally speaking) in the private domain to the private dominion of the individual user or consumer. (37) With the advent of 3D printing, gone are the days when people were restricted from producing complex items and designs that needed special machinery. (38) The power now is shifting (fast) into the hands of the people - that is to say the individuals in their business and, more crucially, in their homes are now masters of their respective domains. (39) It is the era of 'Democratization' of technology and production and as such, it is, I believe, destined to be a major 'shuffler'. (40) It is indeed, tantamount to a revolution, no less. I would refer to this as the 'Individualized-Industrial' Revolution (The "I.I. Revolution"). (42) It is an apt name for this phenomenon that can turn the individual from a passive consumer to an active producer. (43)

Indeed, I don't use my coined term (the I.I. Revolution) lightly, because to my mind, the similarity between the original Industrial Revolution and the I.I. Revolution is striking. In both it is about breaking the existing paradigm of its time. (44) In both it is possible to find the following themes: challenging the nature of production; empowerment; personal entrepreneurship; creating a prosperous middle class; allowing people more accessibility to more types of products; changing production; reinvigorating production and prompting producers to cooperate together. (45) These fit well into both narratives, but the I.I. Revolution differs from its predecessor. (46) The latter is set to challenge the long existing paradigm of the Industrial Revolution in branding, patent and copyright, and challenging the paradigms of production and consumption. (47) According to Osborn, the influence of this (3D printing) technology will "erode the dividing line between the physical and the digital worlds and will bring millions of lay people into intimate contact with the full spectrum of intellectual property laws. One of the areas most affected by 3D printers will be three dimensional art." (48) This is especially true given that affordable 3D printers are entering the home market. (49) Soon, a 3D printer will be a standard machine in every home in advanced countries and even in emerging economies. (50)...