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3D Printing and Patent Law: A Disruptive Technology Disrupting Patent Law?

Abstract

Concerns have been raised that the upsurge of 3D printing technology would disrupt the patent system. The central question the present paper aims to address is whether and to what extent the emergence of 3D printing technology indeed urges us to rethink patent law. The paper splits up this question by looking at two facets in more depth – patentability and infringement – through the lens of pertinent European and US law. In order to provide a better understanding on the reach of patentability and infringement theory and practice and their possible interpretation in a 3D printing context, a set of different scenarios is established covering the perspectives from rights holders (inventors/producers) and users (hobbyists/consumers). The paper concludes, first and foremost, that the wide uptake of 3D printing does not challenge the basic premises of patent law. As regards patentability, 3D printing does not upset patentability theory in general: it does not challenge prevailing concepts of patentable subject matter, nor current patentability requirements. On the other hand, digitized fabrication might well challenge the type/token dichotomy on which patent ontology is founded. As regards infringement, 3D printing does not really upset infringement theory either: it does not fundamentally alter the scope of rights, concepts or direct/indirect infringement assessment traditions. The paper further concludes that the emergence of 3D printing and the decentralization of production it entails, may lead to a wider and more dispersed scale of infringement, and does call into question the adequacy of current enforcement tools and strategies. A lack of adequate enforcement tools might well undermine the innovation incentive rationale dominating current patent law.

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Notes

  1. 1.

    Much has been written on 3D printing technology from various perspectives. For more on the concept and the mechanics of action, see e.g. Roth (2016). For more on the (societal and economic) challenges, see e.g. Birtchnell and Urry (2016); Heemsbergen et al. (2016); Lipson and Kurman (2012); Mueller (2016).

  2. 2.

    Gershenfeld (2012).

  3. 3.

    For an overview of the major additive manufacturing techniques, see infra.

  4. 4.

    More in particular: polylactic acid (PLA), polycarbonates (PC) and acrylonitrile–butadiene–styrene (ABS).

  5. 5.

    For general references, see supra note 1.

  6. 6.

    See Birtchnell et al. (2016).

  7. 7.

    See Mohr and Kahn (2015).

  8. 8.

    One excellent example is NASA’s 3D printer experiment aboard the International Space Station (ISS). Obviously, a space station is the prototype situation in which storage and transport of unused spare parts is very expensive (for more details, see “3D Printer Headed to Space Station”. See https://www.nasa.gov/content/3d-printer-headed-to-space-station, last visited 5 August 2016).

  9. 9.

    Gershenfeld (2012) p. 46.

  10. 10.

    “A third industrial revolution”, The Economist April 21 2012 (available at http://www.economist.com/node/21552901, last visited 23 May 2015).

  11. 11.

    Based on von Hippel and Katz (2002): Von Hippel and Katz describe this mode of repartitioning in general, without examining the translation to 3D printing yet; also see von Hippel (2015). Cf. Bechtold (2016) setting forth that 3D printing has the potential to disrupt traditional manufacturing and supply chains.

  12. 12.

    Bechtold (2016); Anderson and Sherman (2007), p. 289; Rayna et al. (2016).

  13. 13.

    Anderson and Sherman (2007), p. 289. For a further discussion, see infra Sect. 4.2.

  14. 14.

    Finocchiaro (2013), p. 480; Hornick and Roland (2013).

  15. 15.

    Mimler (2013), p. 55.

  16. 16.

    See e.g. Van den Berg et al. (2016).

  17. 17.

    See e.g. Dasari (2013), pp. 284–289; Osborn (2014b); Rideout (2011); Susson (2013); Weinberg (2010a).

  18. 18.

    See Scardamaglia (2015). For a popularizing article on 3D printing and design, see Berger (2014).

  19. 19.

    Ballardini et al. (2015), p. 851.

  20. 20.

    In Roman mythology the God Janus is usually depicted as having two faces, since he looks to the past and to the future (see Graf 2016).

  21. 21.

    The present article will primarily focus on the European and Unitary patent routes, as these routes have gained the most attention compared to the national routes.

  22. 22.

    See Braun and Taylor (2012), pp. 54–55; JTEC/WTEC (1997). Also see references in supra note 1.

  23. 23.

    See http://reprap.org/ (last visited 5 April 2016).

  24. 24.

    See http://www.seido-systems.com (last visited 30 May 2016).

  25. 25.

    Most of the first US patents were found in West and Kuk (2014) (Table 1) and were checked for European counterparts in Espacenet (see http://worldwide.espacenet.com/). Most of the recent European patents were found thanks to the expertise of Allard Van Wallene (Examiner patent examination, European Patent Office, Rijswijk).

  26. 26.

    A very interesting and detailed analysis from the Intellectual Property Office UK (2015c) 3D Printing: A Patent Overview confirms that US inventors were dominant in the early stages of 3D printing technology. In the same line, Gridlogics Technologies (2014).

  27. 27.

    Source: West and Kuk (2014) Table 1 and the European Patent Office (EPO) website (see https://worldwide.espacenet.com/, last visited 18 October 2016). Also see WIPO Magazine 2013 and https://en.wikipedia.org/wiki/Chuck_Hull (last visited 24 May 2016). Also see US patent 4.929.402 entitled “Method for production of three-dimensional objects by stereolithography”, which is a continuation of application 4.575.330, submitted on 19 April 1989 and awarded on 29 May 1990 to Charles W. Hull. For a more recent patent, see US patent 7.758.329 entitled “Optical modeling apparatus”, granted 20 July 2010.

  28. 28.

    Source: West and Kuk (2014) Table 1 (erroneously referring to US patent 4.863.539), Google Patents and EPO website. Another relevant patent is US patent 5.597.589, likewise invented by Deckard, entitled “Apparatus for producing parts by selective sintering”, applied for in 1994 and granted 28 January 1997.

  29. 29.

    Source: West and Kuk (2014) Table 1 and EPO website. A later example is US patent 6.027.326 entitled “Freeforming objects with low-binder slurry“, granted 22 February 2000. Yet another example is US patent 9.022.769, entitled “Multiple-zone liquefier assembly for extrusion-based additive manufacturing systems”, granted to Stratasys on 5 May 2015.

  30. 30.

    Also see US patent 7.569.273, entitled “Thermoplastic powder material system for appearance models from 3D printing systems”, granted August 4 2009. Also see EP patent 1.163.999, entitled “Material system for use in a 3D printing process”, granted 12 October 2005.

  31. 31.

    In the same sense Intellectual Property Office UK (2015c) 3D Printing: A Patent Overview stating that technology breakthroughs in 3D printing date from the 1980 s (note the patents from 1980), but that the tools which allow the underlying technologies to be exploited have undergone substantial improvement over this period of time, explaining the upsurge of patents in 3D printing since then. There has been a significant increase in the numbers of patent filed starting in about 2000 (p. 11).

  32. 32.

    See e.g. https://www.youtube.com/watch?v=MDEdGhE2dUk (last visited 30 May 2016), for a 3D chocolate printer creating squares.

  33. 33.

    See http://www.zdnet.be/nieuws/155285/disney-print-zijn-eerste-wollen-teddybeer/ (last visited 4 April 2016).

  34. 34.

    See e.g. https://www.youtube.com/watch?v=DQ5Elbvvr1M (last visited 30 May 2016), for a 3D concrete printer building a castle.

  35. 35.

    See e.g. https://www.youtube.com/watch?v=HhbViORMop0 (last visited 30 May 2016).

  36. 36.

    For an example of an apparatuses for management of the supply of modeling materials for use in three-dimensional object printing, see EP patent 2.298.539, entitled “Three-dimensional object printing method and material supply apparatus”, granted 2 January 2013.

  37. 37.

    See, however, Li et al. (2014).

  38. 38.

    See e.g. Weiming et al. (2013).

  39. 39.

    See Li (2014).

  40. 40.

    See infra.

  41. 41.

    Bradshaw et al. (2010), p. 24; Finocchiaro (2013), p. 477; Desai and Magliocca (2014), p. 1691; Mimler (2013), p. 63.

  42. 42.

    Brean (2013), p. 807.

  43. 43.

    Bradshaw et al. (2010), p. 24.

  44. 44.

    Osborn (2014a). Cf. Bechtold (2016) pointing to the impact of disentangling the design information of an object from the production of the object in business models.

  45. 45.

    Osborn (2014a). More-or-less in the same line of thinking, West and Kuk (2014) who argue that platforms such as Thingiverse form an important bridge for the transition between the digital to the physical worlds.

  46. 46.

    An alternative approach to scrutinizing the patent potential of CAD files is arguing that CAD files, rather than as with software, are akin to data sets. Osborn follows this line of thinking and points to a recent decision of the US International Trade Commission, where data sets were considered “articles” in the sense of 19 U.S.C. § 1337, a provision concerning unfair practices in import trade (Osborn 2014a). Ballardini et al. (2015), p. 850 seem to support the opposite view where – albeit cautiously – CAD files are qualified as software.

  47. 47.

    For instance Google Sketchup (see http://www.sketchup.com/, last visited 5 April 2016), Blender (see http://blender.stackexchange.com, last visited 5 April 2016), Autocad (see http://www.autodesk.nl, last visited 5 April 2016), Solidworks (see https://www.solidworks.com, last visited 5 April 2016), etc.

  48. 48.

    3D systems created the STL file format, a way to communicate between CAD and drivers, which quickly became the de facto standard for digitally defining the surface of a three-dimensional object using a series of triangular facets (see Jacobs 1996).

  49. 49.

    Personal communication Peter Leys, Director and Chairman of Materialize (see http://www.materialise.com/) during a site visited on 30 April 2015.

  50. 50.

    See https://www.pinterest.com (last visited 4 April 2016).

  51. 51.

    See http://www.ground3d.nl/bram-geenen/ (last visited 26 April 2016).

  52. 52.

    See http://www.patrickjouin.com/en/ (last visited 12 October 2016).

  53. 53.

    Reorganised as the Airbus Group in 2014, see http://www.airbusgroup.com/int/en/toolbox/site-search.html?queryStr=airbike (last visited 26 April 2016).

  54. 54.

    See http://usglobalimages.stratasys.com/Case%20Studies/Medical/CS-FDM-Med-Nemours-06-13.pdf?v=635616661738784406 (last visited 19 May 2015). Also see Doherty (2012), p. 359.

  55. 55.

    See http://hospital.materialise.com/aMace-titanium-hip-joint-replacement (last visited 18 October 2016). Mobelife, a 3D printing company established in 2008 and specialized in hip and shoulder implants was integrated in Materialize on 1 March 2016 (see http://hospital.materialise.com/mobelife-as-a-materialise-company, last visited 18 October 2016).

  56. 56.

    See http://eclecti.cc/hardware/physical-keygen-duplicating-house-keys-on-a-3d-printer (last visited 4 April 2016).

  57. 57.

    See the 3D laser-printed eyeglasses made of titanium developed by Hoet (http://couture.hoet.eu/en/, last visited 18 October 2016). Should the 3D printing technique allow the glasses to be held in the spectacle frame in a non-standard manner, then the first hypothesis might apply.

  58. 58.

    Another, more complex example might be an “Extractor hood with function of reducing vibration and noise”, a device originally produced with conventional machinery techniques, for which a patent was awarded (CN 102.635.887) and now (re)produced with 3D printing technology (with thanks to Xiang YU from the Huazhong University of Science and Technology for bringing this example to my attention during the ATRIP conference in Montpellier, July 2014).

  59. 59.

    Bradshaw et al. (2010) p. 26. It has to be noted, however, that the present example was protected with a US Design patent, rather than with a US Utility patent, which is the protection modus at stake here (see http://habermanbaby.com/anywayup-cow-cup, last visited 5 April 2016). Ballardini et al. (2015) discussed the same Anywaycup and thereby refers to GB patent 2.169.210, entitled “Baby's feeding apparatus” granted to Haberman on 5 January 1989. On closer inspection, it seems that the baby bottle from 1989 is totally different from the cow-cup mentioned earlier. Has some confusion crept in on the storytelling about this legendary item?

  60. 60.

    US patent 6.993.858, entitled “Breathable footwork pieces”, granted to Crocs Inc. on 7 February 2006.

  61. 61.

    US patent 7.568.702, entitled “Folding chess set”, granted to W. & C. Holden on 4 August 2009.

  62. 62.

    See international WIPO/PCT application WO2013170872 EP 2.849.682, entitled “Implantable bone augment and method for manufacturing an implantable bone augment”, filed 14 May 2012, more in particular the product claims (claims 14 ff).

  63. 63.

    Many of the objects listed earlier are not protected with patent rights but with design rights. This is the case, for example, with the foldable stool from Patrick Jouin, which is protected with a US Design patent (US D560.377) granted 29 January 2008.

  64. 64.

    The question whether the object with a modified shape is patentable, differs from the question whether that object infringes on the existing patent. The first question relates to the extent that the object with the modified shape meets the patentability requirements of novelty, inventive step/non-obviousness and industrial application/utility. The second question relates to the extent to which the modified object falls within the scope of the existing patent and qualifies as a dependent invention. For more on different shape and patent scope, see Dolder and Faupel (2004), p. 393.

  65. 65.

    Cf. EPC Guidelines G VII.5.3 (available at http://www.epo.org/law-practice/legal-texts/guidelines.html, last visited 7 April 2016). Cf. EPO, Technical Board of Appeal, Case 0002/83 (Simethicone Tablet), 15 March 1984 (available at http://www.epo.org/law-practice/case-law-appeals/pdf/t830002ep1.pdf, last visited 7 April 2016).

  66. 66.

    See Remiche and Cassiers (2010), p. 111. Also see the following cases of the EPO’s Technical Board of Appeal: T 21/81, T 192/82 (referring in this context to “analogous substitution”), T 130/89 (referring in this context to “similar use” and T 213/87 (available at http://www.epo.org/law-practice.html, last visited 18 October 2016).

  67. 67.

    “Freedom to operate” is defined as a situation where “the commercial production, marketing and use of a product, process or service does not infringe the patent rights of others (‘third party patent rights’)”.

  68. 68.

    The present section will primarily focus on the Unitary Patent route (Arts. 25–26 UPCA) as this route might become the most prevalent in the near future. For more details on national approaches, see Brinkhof and Kamperman Sanders (2015); Osterrieth (2015); Rennie-Smith (2015); Romet et al. (2015).

  69. 69.

    For a legal and empirical infringement analysis under UK law, see Intellectual Property Office (2015a) Study I; Intellectual Property Office (2015b) Study II. For an infringement analysis (of CAD files) under Australian law, see Liddicoat et al. (2016).

  70. 70.

    With respect for applicable open source license conditions.

  71. 71.

    In other words, we will not scrutinize the potential role of manufacturers as indirect infringers, when supplying such items to the hobbyist for printing the patented object. According to Ballardini et al. (2015), p. 862 it is most likely that actions against these parties would fail anyway, either through lack of the required knowledge and intention (3D printers are generic, with many uses, and print whatever the CAD file tells them to print, including staple products), or because the product (e.g. raw material) would be considered as staple products and would only be qualified as indirect infringement under the extra condition that the supplier sought to induce infringement (supra).

  72. 72.

    When we were conducting the research for our scenarios in the current paper, the foundational paper by Ballardini et al. (2015) (also setting forth scenarios) was not yet published. We decided to stick to our scenario approach and our initial set of scenarios, as we have distinguished more scenarios and believe that these extra scenarios may contribute to adding more depth and contrast to the current debate.

  73. 73.

    By separately focusing on the active hobbyist and the consumer, our analysis differs from the scheme set forth by Bradshaw et al. (2010), p. 12, where the hobbyist and the consumer are subsumed. In their scheme the consumer designs/scans, shares and prints and no hobbyist is present. Even though such a scheme has the benefit of simplicity, we decided to distinguish between hobbyist and consumer to allow us to focus on yet another possible infringing act, namely the single act of downloading a CAD file (see infra, Sect. 3.3.1). Yet another distinction than the one set forth in the present article (inventor/producer – active hobbyist – passive consumer) is the one introduced by Bechtold (2016) disentangling the industrial 3D printing sector on the one hand, and the personal 3D printing sector on the other. As relevant as this distinction may be, in view of the detailed infringement analysis which is conducted in the present paper, we opt for a more fine-grained division.

  74. 74.

    Fig. 3 starts where Fig. 2 ends, namely with the “Inventor” who received a patent for an object. Please note that the numbers of the acts in Fig. 3 coincide with the numbers of the subsections. E.g. “Hobbyist creates CAD file of patented object” is discussed in subsection 3.1.1.; “Platform (2) provides additional services” is discussed in subsection 3.2.2., etc.

  75. 75.

    See EP 2.698.084 for a “Device for obtaining juice directly from the fruit”, developed by Jordi Olucha Soler and Alberto Arza Moncunill, and granted to Lekué on 3 September 2014. Neither the patent description nor the patent claims refer to the method of making or to the material in which this device can be manufactured.

  76. 76.

    See https://www.thingiverse.com (last visited 12 October 2016).

  77. 77.

    See US patent 8.342.325, covering a basic iPhone cover developed by Gary Rayner and awarded patent protection to Treefrog Developments on 1 January 2013. Generally speaking, the patent relates to an apparatus for housing an electronic device with a touch screen interface, such as a digital tablet computer or a mobile telephone. Later on, iPhone covers were improved to also be waterproof, drop-proof and self-charging (see http://www.lifeproof.com/en-us/iphone-6s-plus/fre-power-for-iphone-6-plus-6s-plus/lppw-apl-iphp15.html, last visited 12 October 2016). These improved covers were equally protected with various patents (see http://www.lifeproof.com/en-us/intellectual-property.html, last visited 12 October 2016). For the sake of argument, it is not relevant which of the housing systems is reproduced by the hobbyist.

  78. 78.

    For other examples, see Wessing (2013) referring to some simple patented products that are capable of being produced by 3D printing, such as “plastic laboratory equipment with patented “twist to lock” sealing mechanism between parts”, which could be produced by 3D printing.

  79. 79.

    Cf. supra the international WIPO/PCT application WO2013170872 (A1) entitled “Implantable bone augment and method for manufacturing an implantable bone augment”, filed 14 May 2012.

  80. 80.

    See infra.

  81. 81.

    See supra.

  82. 82.

    Cf. Intellectual Property Office UK (2015b) Study II: Scanning technologies offer an alternative solution to creating digital content from existing physical objects – a technique commonly referred to as “Reverse Engineering”.

  83. 83.

    Chisum on Patents (2016). Part I. Chapter 16 – § 16.02[3][b].

  84. 84.

    Doherty (2012), p. 360.

  85. 85.

    Chisum on Patents (2016). Part I. Chapter 16 – § 16.02[4][b]. Cf. Brean (2013), p. 801; Doherty (2012), p. 360; Mimler (2013), p. 60.

  86. 86.

    Osborn (2014c). Various scientific authors support this position, see e.g. Gershenfeld (2012).

  87. 87.

    Osborn (2014c).

  88. 88.

    See Ballardini et al. (2015), p. 856.

  89. 89.

    The breakdown of indirect patent infringement conditions in constitutional elements is always somewhat arbitrary. We opted for an enumeration based on the list of conditions set forth in AIPPI (2010). Bently and Sherman (2004), p. 532 opt for a three-fold catalogue; Ballardini et al. (2015), p. 857 prefer to slice up the conditions in eight sub-conditions, whereas Mimler (2013), p. 60 opts for a different, albeit also five-fold enumeration.

  90. 90.

    Similarly, Ballardini et al. (2015), p. 855.

  91. 91.

    For instance a FabLab, e.g. FabLab Leuven, Belgium (https://www.fablab-leuven.be/?q=node/17, last visited 5 April 2016) or FabLab Genk, Belgium (http://www.fablabgenk.be/, last visited 5 April 2016).

  92. 92.

    For instance i-Materialise (see https://i.materialise.com/, last visited 5 April 2016), Sculpteo (see http://www.sculpteo.com/en/, last visited 5 April 2016), 3Dhubs (see https://www.3dhubs.com, last visited 5 April 2016).

  93. 93.

    For instance a selective deposition modelling printer, such as the Makerbot Replicator (see http://www.makerbot.com/, last visited 5 April 2016).

  94. 94.

    For instance a selective deposition modelling printer built from a DIY kit for self-assembly, or built from scratch, such as the Prusa Mendel RepRap printer (see http://reprap.org/wiki/Prusa_i3, last visited 5 April 2016).

  95. 95.

    Cf. Weinberg (2010b), p. 8.

  96. 96.

    As we have indicated earlier, even though the distinction between a conventionally made or a 3D printer made object does not play a role in the context of infringement theory, the distinction might well play a role in the context of incentive theories (infra).

  97. 97.

    Also see WIPO (2014a). Similarly, Bradshaw et al. (2010), p. 27.

  98. 98.

    See Haedicke and Timmann (2014), p. 791.

  99. 99.

    De Jonge and Maister (2016).

  100. 100.

    Haedicke and Timmann (2014), p 791.

  101. 101.

    De Jonge and Maister (2016); Haedicke and Timmann (2014), p. 792. Similarly, WIPO (2014b), p. 5.

  102. 102.

    Ballardini et al. (2015), p. 855.

  103. 103.

    Senftleben (2006), p. 418, in his comment on the decision of the WTO panel from 17 March 2000 on patent protection of pharmaceutical products in Canada (WTO Document WT/DS114/R available at https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds114_e.htm, last visited 24 December 2016).

  104. 104.

    On de minimis activity, see Chisum on Patents (2016). Part I. Chapter 16 – § 16.03[1]. For further thoughts on the expansion of the current personal use exemption, see WIPO (2014b). Also see Karapapa (2012).

  105. 105.

    On the application of the fair use doctrine in US patent law, see O’Rourke (2000); Strandburg (2011). On the application of fair use in the context of 3D printing, see Grossman (1990). On the transposition of the US fair use doctrine into European patent law, see Van Overwalle (2014).

  106. 106.

    Inspiration might be found in the legislation and case law of Israel and the Philippines explicitly taking the scale of the activity into account (see WIPO (2014b), p. 6).

  107. 107.

    Brean (2013), p. 788.

  108. 108.

    Banwat (2013). For more, see http://lawitm.com (last visited 5 April 2016).

  109. 109.

    Desai and Magliocca (2014), p. 1704.

  110. 110.

    Desai and Magliocca (2014), p. 1716; Doherty (2012), p. 368.

  111. 111.

    For a detailed analysis for the issue related to “making” versus “repairing” in general, see Bently and Sherman (2004), p. 523. For a detailed analysis of the make-repair issue as applied in 3D printing, see Ballardini et al. (2015), p. 853 ff; Wilbanks (2013); Intellectual Property Office UK (2015b) Study II, pp. 5–28.

  112. 112.

    Cf. Ballardini et al. (2015), p. 862, under (ii).

  113. 113.

    Mimler (2013), pp. 64–65.

  114. 114.

    Ballardini et al. (2015), pp. 858, 862 ff and the case law cited there.

  115. 115.

    Bradshaw et al. (2010), p. 27; Rotocrop v. Gentbourne, [1982] FSR 241.

  116. 116.

    Bradshaw et al. (2010), p. 27.

  117. 117.

    Mendis (2013, 2014), p. 161.

  118. 118.

    Ballardini et al. (2015), p. 859.

  119. 119.

    On the exculpatory role of staple goods, see Bently and Sherman (2004), p. 532 (who talk about “staple commercial product exemption”). On the qualification of a computer, a 3D printer or glue as a staple good, see Mimler (2013), p. 66. Also see Weinberg (2010b), p. 13.

  120. 120.

    Mimler (2013).

  121. 121.

    See Ballardini et al. (2015), p. 862, under (i).

  122. 122.

    Mimler (2013).

  123. 123.

    Osborn (2014a).

  124. 124.

    See https://www.thingiverse.com (last visited 12 October 2016). The design files in Thingiverse are primarily code base and subject to copyright protection. The rights in the content created by and individual designer rest with the designer, but Thingiverse encourages contributors to employ Creative Commons licenses and freely share their designs with others, conditioned on attribution of designed works. Thingiverse is claimed to be the first open repository for digital 3D designs. As the design files are free, but the printers cost money; the slogan among open source hardware businesses is: bits are free, atoms cost money (see West and Kuk 2014).

  125. 125.

    See http://www.shapeways.com/ (last visited 18 October 2016). Shapeways allows purchasing or customizing of 3D printing objects at a reasonable price.

  126. 126.

    See Phillips (2014).

  127. 127.

    For the sake of the argument we will not examine whether online 3D printing platforms can be considered as “intermediaries” as discussed in Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167, 22 July 2001 (the so-called InfoSoc Directive). The main reason is that it does not contain a clear-cut definition of the notion of “intermediary”. Point 59 of the Preamble refers to services of intermediaries but does not really clarify the concept. A further reason is that the Directive seems to focus on the passive status of intermediaries, which, however, does not exempt them from intellectual property (IP) infringement, more in particular indirect IP infringement.

  128. 128.

    Mimler (2013), p. 66.

  129. 129.

    Ballardini et al. (2015), p. 862 under (iii).

  130. 130.

    See supra and the references to Chisum on Patents (2016). Also see Brean (2013), pp. 783–784; Doherty (2012), p. 360.

  131. 131.

    For the sake of the argument, we will not examine the intricacies of the Digital Millennium Copyright Act (DMCA) as applied in several famous cases concerning copyright law. For more, see Finocchiaro (2013).

  132. 132.

    See supra, and the references to Chisum on Patents (2016). Also see Brean (2013), pp. 783–784; Doherty (2012) p. 360.

  133. 133.

    In the same line, Finocchiaro (2013), p. 491.

  134. 134.

    Brean (2013) p. 796.

  135. 135.

    Microsoft 550 U.S. at 451.

  136. 136.

    Brean (2013), p. 799.

  137. 137.

    Brean (2013), p. 793.

  138. 138.

    Brean (2013), p. 793.

  139. 139.

    Global-Tech Appliances, Inc. v. SEB S.A., 131 S.Ct. 2060, 2068 (2011).

  140. 140.

    Takedown requests are not yet possible under the DCMA, but may be possible under a Digital Millennium Patent and Trademark Act (DMPA). See Doherty (2012), p. 365; Desai and Magliocca (2014), p. 1713; Osborn (2014c).

  141. 141.

    Doherty (2012), p. 361.

  142. 142.

    Ballardini et al. (2015), p. 862 under (iii).

  143. 143.

    For the arguments, see supra.

  144. 144.

    Ballardini et al. (2015), p. 851.

  145. 145.

    Similarly, Bechtold (2016).

  146. 146.

    Peukert (2016).

  147. 147.

    Godt (2007).

  148. 148.

    Osborn (2014c).

  149. 149.

    Similarly, Bechtold (2016); Desai and Magliocca (2014); Hornick (2016).

  150. 150.

    It has been argued that just like what happened with copyright in the music industry a decade ago, users/consumers will cease to pay for patent protected creative inventions if the (CAD) designs are freely available on the Internet, and producers will desperately try to protect their IP. Cf. Osborn (2014c); Hornick and Roland (2013).

  151. 151.

    See Van Overwalle and Van Zimmeren (2009) and the references cited therein.

  152. 152.

    See West and Kuk (2014) identifying six broader categories of limiting factors. As with personal computers, penetration of the consumer market began with the early adopters in the hobbyist market, termed the “maker movement” at the time. Also see Anderson (2012).

  153. 153.

    Bradshaw et al. (2010), p. 11; Finocchiaro (2013), p. 473; Doherty (2012), pp. 356–358; Desai and Magliocca (2014), p. 1691; Brean (2013), p. 771; Mimler (2013), p. 55; Harrison (2013); Mendis (2013, 2014), p. 158; Anderson and Sherman (2007), p. 283.

  154. 154.

    Bradshaw et al. (2010), p. 12.

  155. 155.

    Doctorow (2013).

  156. 156.

    Doctorow (2013).

  157. 157.

    Mota (2011), p. 280.

  158. 158.

    Mota (2011), p. 279. Similarly, Gershenfeld (2012); Hornick (2016).

  159. 159.

    Finocchiaro (2013), p. 478; Weinberg (2010b). Similarly, Intellectual Property Office UK (2015a) Study I: “[…] in view of the increased rise in online platforms, it is suggested that the number of intellectual property issues in relation to 3D printing will concurrently grow. However, at the moment it is not widespread and as such does not give rise to major concern”; Intellectual Property Office UK (2015b) Study II, stating: “In conclusion, this research would suggest that it is unlikely that additive manufacturing will present significant challenges to the UK’s existing intellectual property framework over the next ten years. The limitations of the technology are substantial – especially with regard to consumer-level technology – and this will hinder widespread adoption within this time frame”.

  160. 160.

    Hanna (2011).

  161. 161.

    Finocchiaro (2013), p. 489.

  162. 162.

    See supra for some concrete examples.

  163. 163.

    Mimler (2013), p. 55.

  164. 164.

    Mota (2011), p. 282; Finocchiaro (2013), p. 475.

  165. 165.

    See Desai and Magliocca (2014), pp. 1691–1719; Finocchiaro (2013) p. 475.

  166. 166.

    See Desai and Magliocca (2014), pp. 1691–1719; Holbrook and Osborn (2015).

  167. 167.

    See Doherty (2012).

  168. 168.

    See Doherty (2012).

  169. 169.

    See Hornick (2015).

  170. 170.

    In the same sense, Hornick (2016); Weinberg (2010b). For some seven concrete suggestions, see Bechtold (2016).

  171. 171.

    Cf. the recommendation in a recent report from the Intellectual Property Office to check out the business model of companies such as Authentise (www.authentise.com, last visited 8 July 2016), Secure3D (http://www.secure3d.com/, last visited 8 July 2016) and ToyFabb (http://www.toyfabb.com/, last visited 8 July 2016), which allow the secure streaming of 3D CAD files, adopt a “pay-per-print” business model and protect intellectual property (Intellectual Property Office UK (2015a) Study  I).

  172. 172.

    Gorbatyuk et al. (2016).

  173. 173.

    See e.g. the Co-Creation Lab at Materialise (see http://manufacturing.materialise.com/co-creation-lab, last visited 26 April 2016).

  174. 174.

    Bechtold (2016).

  175. 175.

    Ballardini and Ituarte (2016).

  176. 176.

    See Bechtold (2016); Gershenfeld (2012); Söderberg (2013); West and Kuk (2014). A highly controversial case relates to MakerBot, founded in 2009 and acquired by Stratasys in 2013. MakerBot initially started as an open source initiative, with a payable assembly kit to construct the Cupcake printer and freely available printer designs using GNU GPL licenses. However, gradually Makerbot adopted a closed strategy, including proprietary hardware – most notably the Replicator 2 printer – components and software applications (for more details, see West and Kuk (2014)). This closed strategy resulted in some high-level patent infringement lawsuits, notably between Stratasys and Afina, the importer of a low-cost Chinese fusion deposition modelling printer (for some critical comments, see Weinberg (2013)). For a more recent update on the Stratasys v. Afina case, see a press release from Stratasys from 15 June 2015 (Stratasys successfully defends validity of fused deposition modeling patents, available at http://investors.stratasys.com/releasedetail.cfm?ReleaseID=917703, last visited 5 August 2016).

  177. 177.

    See http://www.reprap.org/ (last visited 24 May 2016).

  178. 178.

    Bechtold (2016); West and Kuk (2014).

  179. 179.

    See e.g. Moilanen et al. (2015); Van Overwalle (2015). For a comparison with similar research in the robotics field, see Cooper (2013).

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Acknowledgements

The authors wish to thank Allard van Wallene (Patent examiner European Patent Office, Rijswijk, The Netherlands – visit 22 October 2013 and further personal communications); Marc Lambaerts (FabLab Leuven, Belgium – site visit 30 April 2014); Peter Leys and Carla Van Steenbergen (Director/Executive Chairman and Legal Expert, respectively, Materialise Leuven, Belgium – site visit 30 April 2015); and Danny Leen (FabLab Genk, Belgium – site visit 1 April 2016) for their kind willingness to exchange ideas and to show us around on their premises in 2014, 2015 and 2016, respectively. The authors are also grateful to the participants of the two-day conference 3D Printing: Destiny, Dream or Doom? organized at the University of Leiden by Bibi van den Berg and Simone van der Hof (14–15 November 2013). Last but not least, the authors also wish to thank Wouter Devroe and Xing Yu for their thoughtful comments, and Amandine Léonard for her assistance in the research on some parts of the paper.

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Van Overwalle, G., Leys, R. 3D Printing and Patent Law: A Disruptive Technology Disrupting Patent Law?. IIC 48, 504–537 (2017). https://doi.org/10.1007/s40319-017-0602-1

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Keywords

  • 3D printing technology
  • European and US patent law
  • Eligible subject matter
  • Substantive patentability requirements
  • Infringement
  • Enforcement
  • Inventor and user perspective