How 3D printing threatens our patent system
theconversation.com
theconversation.com
A patent is a document that makes it possible for someone else to replicate your idea. You exchange this knowledge for a monopoly as the only seller of this product in a given country.
But if other sources can't replicate your idea, your patent should be invalid.
Everybody can manufacture their own products, even if they are patented. What they can't do is sell them on the market.
What lawyers want is to receive a monopoly while giving nothing in return. They try to obfuscate the patent using strange verbs so examiners could not find prior art, try to extend the patent as generic as they can and even introduce invalid information so competitors could not replicate the thing, even after the patent expire.
Valid 3D computer files should be a requirement for a patent. The only reason they are not is because the patent office is obsolete.
Actually, I believe this is false. It is my understanding that it is illegal to copy a patented invention even for your own non-commercial use.
(a) Except as otherwise provided in this title [35 USCS Sects. 1 et seq.], whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.
But, as a practical matter, companies don't go after hobbyists printing up something in their basement of course. Both because it's prohibitively expensive versus the expected monetary recovery and it's hard to find someone doing this if they're just doing it in their basement for fun.
> Most of the Member States provide the private and/or non-commercial use exception under their statutes. Only the response from Australia informed that the exception was not included in its statutes, but provided by common law as a “non-commercial use defense”
...
> Most of the Member States, however, provide a broad definition of the scope of the patent rights which encompasses all kinds of activities, and explicitly stipulate that private use for non-commercial purposes or private and non-commercial use is an exception to the exclusive patent rights. In formulating the exception, provisions of many national laws stipulate that the it applies to acts carried out in the private sphere and for non-commercial purposes or to use of a patented invention for personal needs with no purpose to make profits. The response from the United Kingdom stated that the exclusion is provided for acts done “privately and for the purposes which are not commercial”.
[1] http://www.wipo.int/edocs/mdocs/patent_policy/en/scp_20/scp_...
By what I know of it, producing a patented invention for your own purposes, outside the stream of commerce, is neither crime nor tort at common law, as no one has been provably harmed by it. As a potential juror, I do not find the "lost sale" theory of harm to be credible from any vendor operating a monopoly, state-protected or otherwise.
One presumes that, according to microeconomic theory, the monopolist restricts its supply to increase sale prices, and that it is able to sell as much as it is willing to produce at that price. If it wished to sell one more, it would have produced one more, and also lowered the sale price by a marginal amount. Since it did not, it is clear that the monopolist was not harmed by being unable to sell to the infringer, because the monopolist never intended to sell that many goods in the first place.
Nevertheless, many judges in the U.S. are far more willing to nail you to the wall with statutory law on dubious grounds before allowing you to argue anything from common law.
relevant HN comment on the same issue from almost 8 years ago.
[1] https://en.wikipedia.org/wiki/Research_exemption#Common_law_...
The court did not reject the defense, but left only a "very
narrow and strictly limited experimental use defense" for
"amusement, to satisfy idle curiosity, or for strictly
philosophical inquiry." The court also precludes the
defense where, regardless of profit motive, the research
was done "in furtherance of the alleged infringer’s
legitimate business." In the case of a research university
like Duke University, the court held that the alleged use
was in furtherance of its legitimate business, and thus
the defense was inapplicable.
Sure, you can 3D print rocket parts--with a printer that costs millions and takes several people just to maintain, let alone things like the cost of consumables.
http://makezine.com/projects/3d-print-badass-rc-race-car/ https://github.com/tlalexander/Flutter-Scout
Note: I am the designer.
It is clear to me, just from the history of the volume printing industry itself, that patents are now hindering progress rather than promoting it.
Stratasys, the patent-holder for the fused deposition modeling (FDM) method of volume printing, failed to produce a printer widely accessible to the hobbyist market. As soon as the patent expired, we got an explosion of open, affordable devices for that market, with varying levels of required customer expertise and professional hand-holding services.
I think a similar explosion will occur again when robocasting and laser sintering are fully liberated.
I think the major damage to patents will not occur because people will ignore them, but because people will be producing and sharing prior art before the patents can even be filed. So far, the open source community has been rather more scrupulous than I would have expected regarding avoidance of patented technologies.
It's almost as if they see patents as damage, and simply route around them.
Now, now, didn't the author mean hindrance?
In any case, I would love to see patents undermined. Let's just hope we don't fall into a police state just to enforce corporate monopoly. The world is close enough to cyberpunk as it is.
If the author had led with that sentence instead of closing with it, we could have immediately identified the article as quackery and moved on.
A CAD file should, under the current system, be copyrightable, which it is. However, it is nothing more than a description of an object. A patent is also a description of an object, with the only difference that the former is interpreted by computers (or humans with the aid of computers) and the latter is interpreted by lawyers.
As mentioned in another comment, patents should contain relevant CAD files to better describe the invention, instead of obfuscated legalese prose that nobody understands. Patents are supposed to create a legal monopoly for the price of disclosing the invention. If the inventor does not wish to disclose details, the invention can remain a trade secret instead, but granting both secrecy and a monopoly does nothing for innovation.
Clearly, 3D printing makes it easier to replicate physical objects, but as the patent system's stated objective is to further innovation, maybe it's time to relax patent licensing instead, as 3D printing giving the ability to tinker and create to "the masses", and will undoubtedly produce a lot more innovation than locking down patent law.
Interestingly this could actually provide stronger legal protection for the patenting person. Under existing copyright law people are unwilling to work on open source projects that interact with closed source products for which there has been a source code leak because it is harder to prove that you've never seen the closed source code.
Currently one can make new CAD file without infringing copyright (patent law I'm not sure of) but if people published the CAD files with the patent the patent owner could claim that any files that floated around on the internet are copyright infringements (and hence crimes an an of themselves).
--- I am not a lawyer. I'm definitely not your lawyer. If you need legal advice pay someone that knows what they're talking about.
(However, I do blame The System for this uncertainty. I wish it'd err more often favouring the copier, instead of the rights holder, if that would make everything simpler.)
I stopped reading right there.
While I agree that our current patent office is doing a lousy job protecting us from the trivial, that is actually the intention.
An article which discusses the intention - and the implications of that - is perfectly valid.
Is this true? I'm skeptical. I own hundreds of MP3s legitimately bought from amazon.com without any DRM on them. The existence of these files on my computer are in no way evidence of any infringement. Only if I were to share these files online without first securing the right to do so do I infringe. It is the act, not the file that is illegal.
Luckily, they seem to get this distinction in the following statements:
We argue that if someone sells a CAD file that prints a patented item, that should be considered infringing... But what if someone is not selling the CAD file? Instead, they just possess it. Should that be infringement, too? We think not. The patent system encourages others to design around existing patents, which is often done in a virtual space. If the CAD file itself would be viewed as infringement, then the system could lose such beneficial improvement efforts.
First a quibble: very few 3D-printing enthusiasts use CAD, they use STL files or GCode (the actual code instructions for the printer). The fact that the author makes no mention of this tells me they haven't really taken the time to understand the technology they are critiquing.
Secondly, they are painting an incomplete picture here. You are either selling patented 3D files, which should be illegal, or you are working with them personally, which should remain legal in the spirit of promoting innovation. But what about collaboration, which requires sharing these files? 3D Printing Designers often share their designs in order to solicit feedback. What happens if I send my design to a someone on 3DHubs to have them print it for me?
Thirdly, how the heck are designers supposed to know what is patented and what isn't? Have you ever tried to find prior-work on the US Patent Office web site? Good luck getting the keywords right or sifting through the PDF drawings to see if someone else had your idea. This isn't at all like copyright infringement, where you are copying something someone else created. In a world of obvious ideas, inventing the same thing as someone else is very easy.
I agree with the other comments that predict this is the beginning of a very ugly lobbying effort, and the only ones who are going to get rich off it are the lawyers.
What they mean is that digital files can be infringing under the right circumstance (it's an unlicensed copy). In contrast to patents, where the actual product has to exist or the method has to be practiced. A blueprint for product is not itself infringing. I wouldn't say that a digital file can never be infringing (because I think it could under limited circumstances when the claims are claiming a digital file), but if you have a patent on a widget, the CAD file for that widget isn't infringing.
>Secondly, they are painting an incomplete picture here. You are either selling patented 3D files, which should be illegal, or you are working with them personally, which should remain legal in the spirit of promoting innovation. But what about collaboration, which requires sharing these files? 3D Printing Designers often share their designs in order to solicit feedback. What happens if I send my design to a someone on 3DHubs to have them print it for me?
I'm pretty pro-IP, but I think there are good reasons not to call patented 3D infringing articles. The big reason is reverse engineering.
I think we can handle this issue with the induced and indirect infringement law already on the books. The article points out that the alleged inducer has to know about the patent to be found liable. But that is a good thing. The last thing we need is for patent trolls to go around extorting people. It would protect people from say, molding specific products (that are marketed with a valid patent number) because that puts you on notice that there is a patent covering the product. And if someone is innocently distributing a file that infringes, then you can send them a letter informing them of the patent and they'll be forced to stop or risk damages.
Of note: the Solid Concepts M1911 https://en.wikipedia.org/wiki/Solid_Concepts_1911_DMLS project produced a completely 3D printed metal handgun (barrel included!), which has of last report held up to firing 5000 rounds. The printer is at this time hideously expensive, but obviously it's just a matter of time before it reaches "affordable" to the point that the combination of printer & CAD files becomes considered a threat in jurisdictions criminalizing manufacture/sale/possession of such items.
Ergo, the issue extends well beyond just patent infringements.
Good.
The whole article sounds like the usual FUD of IP maximalists who freak out with every new technology emerging.
We're entering a post-scarcity society, and I'm super-excited. I hope it comes sooner rather than later, but there are going to be some significant growing pains as we re-adjust.
There's one area in which this is a problem, for small values of "problem" - people turning out movie fan merchandise on 3D printers.[1] 3D printers are good enough to make that stuff, although at a far higher price point than injection molding.
[1] http://www.wsj.com/articles/hollywoods-other-piracy-problem-...
"I’m a repairman. I recognize broken things when I see them. I got into this fight because I wanted to help people repair their broken stuff. Turns out, copyright law is the thing that was broken all along."
The problem is, as perceived by me and some others, that the patent system isn't functioning as intended.
It needs to get fixed. Part of that could probably be reducing the restrictions on individual manufacturing, even though, taken as a mass event, that defeats the forbidding power of patents. Other parts could be decreasing the time period for patent enforcement, adding requirements for patent holders - to, e.g., diminish problems with "patent trolls". Yet another could be admitting that patents in different areas work differently - a software patent (which today doesn't really justify its existence) is a very different thing than a pharmaceutical patent.
I could easily see that selling a CAD file which infringes on a patent could be enforceable. In theory, also sharing of a CAD file which infringes could be enforceable but it would be much harder to do so as there's much less of a paper trail.
Given that most objects of interest to duplication aren't just one solid chunk of a weak material, but usually consist of many parts created during the manufacturing process, this seems like a pretty trivial risk at the moment.
Wait, what? Are patents copyrighted too?