3D Printing and The Second Coming of Patent Law in Cyberspace

Posted by:  David Medina

April 18, 2015


The_Bukobot_Reprap_3D_PrinterIf you have kept track with technology lately, you’re bound to have seen something about 3D printing. 3D printing has been advertised as pretty much the cause of and solution to all of life’s problems. Cox cable services released a commercial advertising their internet services by talking about how 3D printing could revolutionize food. 60 Minutes ran an episode about how 3D printing is making America more dangerous. Well in addition to all of these amazing possibilities and scary doomsday scenarios we can add one more area in which 3D printing can change our world: legal enforcement in cyberspace.

For the past countless years, trademark, trade secret, and copyright have been the main tools through which someone protects their content online. 3D printing can change that calculus by reintroducing patent law into that arena. 3D printing has the ability to revive patent law as a viable legal alternative to prevent infringement of a protectable idea.

Introduction – Patent law was an afterthought in cyberspace

Looking back to the history of patent law’s impact on cyberspace, one can see that it pretty much didn’t exist. Initially trade secrets protected computer code. After trade secret law became a less feasible way to protect code, copyright took its place. Meanwhile, patent law was left to the wayside because it didn’t quite fit in. The little impact patent law had on cyberspace and computer code was limited to new inventions in that space. Since programmers often recycled code, not many computer code patents ever were issued. To make matters worse, unlike copyright law, patent law wasn’t at all useful for protecting objects that were generated by code. All of that may change, however, with the proliferation of 3D printing and other rapid prototyping technology.

Copyright as the Main Computer Code protection

Copyright law protects against infringement of digital media in two ways. The first way copyright law protects against infringement is to forbid the copying of the actual textual articulation of a program, and the second way copyright law protects against infringement is to forbid the copying of the underlying digital media itself.

As for the first way, copyright law makes it illegal for someone who is not the copyright owner to copy the written articulation of a program. This affects both the human readable version of a computer code, and the computer readable version. Because copyright law protects the actual written version of the computer code and not necessarily the functional output of the code, it serves to provide a relatively weak protection for code.

In another capacity, copyright law can protect the underlying works of music, videos, or photographs. When copyright law is used to protect the underlying artistic expression, the specific articulation of the computer code itself (i.e. whether the electronic impulses that make up a photo are 0101 or 0010) don’t matter. In those situations, what matters is what sound comes out of the speakers, or what photo appears on a screen.

Patent Law in Cyberspace

With the two ways copyright law can protect computer code in mind, let’s turn to patent law. Patent law functions somewhat similarly to copyright law in many respects. Like copyright law’s ability to prevent someone from infringing a work, patent law can allow a patent holder from to prevent someone else from making, using, selling, or importing whatever is covered by the patent. Patents are a bit more nuanced than copyrights, however, in the sense that patents cover one of two things: (1) a way of doing something (a.k.a. a method patent), or (2) a “thing” itself (a.k.a. device/object/instrument). Patents that protect methods are what were initially used to protect some novel computer algorithms. Because the patent examination process isn’t a good fit for computer programs, not many software developers try to use patents to protect their code. Patents that protect “things” historically haven’t been very useful in the cyberspace realm. Unlike copyright law that protects artistic creations that can be displayed on a computer screen, patent law typically cannot protect stuff that can be displayed by a computer. The reason for that is that patent law really cannot protect the electrical impulses that get displayed, nor can they protect sound that emanates from computer speakers. Because patent law cannot protect either of those two outputs, it has historically been ignored in the cyberspace world.

3D Printing’s Effect on Patent Law in Cyberspace

Instead of limiting the output of some computer code to either what can be displayed on a screen or heard from some speakers, 3D printers will expand the list of potential computer-based outputs. Prior to 3D printing and other rapid prototyping, a snippet of computer code couldn’t really equate to any physical device/object. Since when have letters and numbers equaled a television or broomstick? To answer my rhetorical question, pretty much never. But with the proliferation of 3D printing, it may be possible for a snippet of computer code to be the digital equivalent to a physical object. Imagine the following two scenarios:

Pre-3D printed item:

In this first scenario, Inventor Amy invents and patents a baseball bat (this is just a hypo…I know the standard baseball bat is not patentable anymore). Amy’s patent on the baseball bat will prevent anyone else in the country from making, using, selling, or importing a baseball bat. If someone were to take the diagram of Amy’s baseball bat design, however, and post it on the internet, Amy would not be able to prevent that activity under patent law. This is partly because Amy’s patent prevents anyone from making, using, selling, and importing the baseball bat itself. This is different from preventing someone from making an online image of the bat or from posting the design specifications for the bat. Other forms of intellectual property protection are possibly available to Amy, but patent law won’t help here there.

3D Printed Item:

Now imagine a second scenario. The same initial facts from the prior scenario are present. Just like the prior scenario, someone creates a digital replication of Amy’s baseball bat, but in this scenario, they do so using a 3D scanner (which, by the way, is a legal activity), and turn that diagram into a snippet of computer code. So far, this scenario is identical to the other one, and so far patent law cannot protect Amy’s invention. The actual activity of 3D scanning the bat and turning it into code almost surely won’t be a violation of patent law because scanning it is not making it, using it, selling it, or importing it.

The difference between this scenario and the last one derives from what make the 3D printer so powerful.

Now let’s introduce a 3D printer to the equation. Instead of the final output of that 3D scanned diagnostic being a webpage or a snippet of code, one decides to try to print a bat from a 3D printer. In this situation, the person who has printed Amy’s protected bat has actually “made” a bat for patent purposes. Unlike the prior scenario where the only output was a piece of code displayed on a computer screen, here the output is an actual, usable baseball bat. At this point, since a person has actually made one of Amy’s patented bats in violation of her patent, she has the right to sue.

Differences between patent law and copyright law on the internet

Taking this scenario one step further, let’s compare it to a similar copyright situation. Under copyright law, it is illegal for a person to take a copyrighted work, let’s say a broadcast of a baseball game, and post it on the internet. Although this isn’t 100% settled law, it appears that it would not be illegal for an unrelated third party to stream that baseball game without ever storing any of the stream on their computer’s hard drive. In this situation, if the copyright holder wants to sue the viewer to stop him from watching an illegal stream of the baseball game, the copyright holder is just plain out of luck.

Now let’s compare that to patent law. In patent law, if a person were to make a digital copy of a baseball bat and offer that digital file to the public, that person has not himself infringed the patent. Now if a second person downloads the digital copy of the baseball bat and prints a bat, that second person has now infringed the patent on the baseball bat. In addition, if there was only was possible use of that snippet of computer code that was the digital copy of the bat, a court could possibly find that the person who created the digital copy of the bat is guilty of inducing another person to infringe, and therefore will be guilty of induced infringement. In this case, patent law may allow a patent owner to do that which copyright law will not: have a cause of action against both the party that creates the unauthorized digital copy and the party that consumes the final product.

Because patent law will be the only viable source of protecting against unauthorized reproduction of goods by way of a 3D printer, 3D printing may be bringing patent law back into the cyberspace world for good



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