Why manufacturing matters: 3d printing, computer-aided designs, and the rise of end-user patent infringement.

• Author: Peacock, Skyler R.

TABLE OF CONTENTS INTRODUCTION I. THE EVOLUTION OF 3D PRINTING II. HOW 3D PRINTING FITS WITHIN THE PRESENT INTELLECTUAL PROPERTY FRAMEWORK A. The Piracy Problem 1. CADs and the Disclosure Requirement 2. The Futility of Patent-Copyright Crossover a. CADs as Representations of Facts b. CADs and Unlimited Customization III. WHY MANUFACTURING MATTERS A. Invention or Innovation? B. Is the Monopoly Always Worth the Embarrassment? C. Reconceptualizing Patent's "Lake" CONCLUSION INTRODUCTION

Manufacturers and product developers have used additive manufacturing, a process more commonly known as 3D printing, to create prototypes, mock-ups, and replacement parts for over twenty-five years. (1) Until recently, however, few people outside of those industries had even heard of the technology. (2) With the size of the printers shrinking and the availability of new source material expanding, manufacturers of 3D printers have begun to explore new avenues for the development of their product that promise to bring widespread use of 3D printers into the home. (3) If successful, the transition of manufacturing from the factory to the home will present a novel set of problems for intellectual property owners.

At the most obvious level, end-user appropriation of the manufacturing process has the potential to astronomically increase the instances of patent infringement. This result follows for two reasons. First, patent law strictly defines infringement to include anyone who manufactures an invention without authorization, whether for a commercial or a private purpose. (4) Second, the 3D printing process's digital nature establishes the technology within a realm already plagued by rampant piracy, where millions of individual violations occur within a single day. (5)

Patent owners then must face the more daunting challenge of asserting their property rights against an international multitude of anonymous infringers. Of course, patent owners could try to prosecute each infringer, assuming they have the ability to track them down, assert jurisdiction, and sufficiently prove the infringing conduct. But this approach would require more time, money, and resources than most patent owners would presumably want to spend. Instead, rights holders will likely try to diminish this new brand of patent infringement at the source: the electronic distribution of Computer-Aided Design Files (CADs). (6)

This effort will mark a dramatic shift in the prosecution of patent infringement cases. Traditionally, manufacturers brought suit for patent infringement against other manufacturers. (7) The legislature and the courts encapsulated this dynamic in the development of remedies for patent infringement. (8) After centuries of application, patent law has evolved to create a monopoly right that operates efficiently only in this limited commercial context. (9) If patent owners try to extend the monopoly to address CADs and end-user infringement, courts should approach the matter cautiously before haphazardly expanding the reach of this branch of intellectual property law.

Intellectual property law exists as the result of a "bargain" between innovators and the public. (10) Congress alone shoulders the burden of bringing new technology into harmony with the constitutional mandate to "promote the Progress of Science and [the] useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (11) How Congress navigates this duty in the face of the emergent 3D printing technology will largely depend on which side of the bargain legislators tend to favor: private industry or the advancement of the public store of knowledge. (12)

This Note will demonstrate how this bargain should be struck by first briefly introducing 3D printing and exploring the technology's development from the mid-1980s until the present, where increased access to the technology has led commentators to speculate about the role of computer-aided design files in what may turn out to be the next wave of digital piracy. Second, this Note will analyze where computer-aided design files containing the schematics for patented inventions fit within the current patent and copyright framework. The result of this effort reveals that the information contained within computer-aided design files is ultimately a product of the public domain and not immediately subject to regulation. Third, this Note will examine the reconfiguration of the "intellectual property bargains" that Congress must assess if, and when, it decides to act upon the changes endemic to the impending "democratization of manufacturing." This analysis will explore the public benefits versus the private incentives that have driven intellectual property law since the founding of the United States and challenge the perception that greater restrictions on the use of 3D printing will be necessary for Congress to successfully fulfill its Article I, Section 8 mandate.

It will be shown that intellectual property law makes sense as it regulates activity only between manufacturers and competitors, not manufacturers and end-users. Ultimately this Note will conclude that, if given the options of accommodating 3D printing by enacting legislation to limit its disruptive effect or allowing market incentives to direct manufacturers' efforts, the constitutional mandate for Congress to "promote ... Science and [the] useful Arts" (13) is best served by allowing the market to direct producers to the most efficient use of resources.

1. THE EVOLUTION OF 3D PRINTING

   Technically speaking, the term "3D printing" is a catchall phrase for the universe of production processes known as "additive manufacturing." (14) While each additive manufacturing process employs a different method, they all maintain the distinction of building whole objects from the ground up, layer-by-layer, using only as much material as necessary for the intended purpose. (15) The result is a manufacturing process that avoids much of the waste endemic to traditional reductive methods of manufacturing. (16)

   Despite the variations in the way 3D objects are created, the general process of 3D printing is fairly uniform. It begins with a computer file known as a CAD. These files are essentially electronic blueprints that contain the exact specifications of an object in the form of a digital 3D model. (17) One popular example of a CAD is a bust of the political satirist Stephen Colbert, which is pictured below. (18)

   Presently, CADs can be created two ways: by using a dedicated software program to draft a design or by capturing a 3D scan of an already existing object. (19) Using the production processes described above, 3D printers essentially translate an object's digital representation in the CAD file into a tangible artifact. (20)

   The design possibilities for 3D printed artifacts are seemingly limitless. Because the printer builds up the object layer-by-layer, designs may include objects with moving interior parts (21) and can even incorporate once impossible to manufacture geometric figures. (22) Furthermore, the ability to manufacture workable products on-site dramatically reduces the amount of time between the conception and implementation of new design ideas, and at much less cost than previously possible. (23)

   In light of these distinct advantages, manufacturers in the mid-1980s first employed 3D printing to create prototypes for new products. (24) Within a decade the process had completely changed the way major companies approached research and development. (25)

   Today, small companies are purchasing high-quality 3D printers to control every aspect of their operation--from design, to production, to distribution. (26) The Internet now hosts an entire online store dedicated to the production of user-submitted CADs. (27) Printers now have the ability to create objects from plastic, metal, ceramic, or glass. (28)

   Each successive advance in 3D printing has resulted in greater accessibility to the technology and more functional applications. Individual hobbyists wishing to purchase their own 3D printer can pick one up for as little as $500. (29) Google offers its patrons access to a rudimentary, but useful, CAD design program at no cost. (30) New source materials are being developed that cost a fraction of what previous materials cost (31) and even further developments may provide for the recycling of previously printed items as a renewable alternative source material. (32) While some commentators celebrate the shift in direction from sophisticated national manufacturers to novice individual users, the quiet quickness of the expansion also leaves them concerned that fears of increased end-user access to more powerful technology will eventually entice those sophisticated manufacturers into a stifling intellectual property battle with end-users, much like the digital copyright war that commenced in the 1990s. (33)

2. HOW 3D PRINTING FITS WITHIN THE PRESENT INTELLECTUAL PROPERTY FRAMEWORK

   The manufacturing sector of the United States' economy encompasses all of the country's most patent-intensive industries. (34) This dense concentration of patents in the manufacturing sector follows from the fact that Congress drafted the law of patents to expressly bring "any new and useful ... manufacture, or composition of matter" within the realm of its governance. (35) Given these observations, reason suggests that any technology promising to disrupt present notions about the way things are manufactured would likely implicate concerns in the patent realm of intellectual property law.

   A patent is considered to embody all of the "attributes of personal property" (36) and empowers its owner, generally, to exclude others from "making, using, offering for sale, or selling" the invention described therein. (37) The law also provides exclusionary rights for inventions that constitute a new and useful "process." (38) Regarding this latter mode of...