New Dimensions: 3D Printing and Intellectual Property Laws

Photo by Tony Hoffman (via Flickr Creative Commons)

BY LISA EBENSTEIN — Three dimensional (“3D”) printing has been around since the 1980s, but only recently has the technology become readily available.  3D printing is a process of making a three dimensional solid object from a digital model.  3D printing works by using additive processes, which involve joining successive layers of 2D patterns created by raw materials.  These patterns are controlled by computer aided design (“CAD”) files, which can be downloaded from the Internet.  Further, individuals can create their own 3D models using various computer programs.  However, design programs are not always required due to 3D scanners, which allow anyone to capture the contours of an object and turn them into a CAD.

Advances in technology have made 3D printing more affordable, allowing the technology to become more available to consumers, commercial enterprises, and the medical community.  In fact, today, an individual can buy her own 3D printer for less than a MacBook Pro.  3D printers have unlimited uses and have even been used to help surgeons reconstruct a baby’s skull.  Although the possible positive uses for the technology are limitless, there are a number of legal concerns, including intellectual property law implications, which need to be addressed.

As the technology becomes more efficient, intellectual property issues will continue to grow.  As Deven R. Desai and Gerard N. Magliocca wrote in Patents, Meet Napster: 3D Printing and the Digitization of Things, 3D printing “will do for physical objects what MP3 files did for music.”  This is because 3D printers will make it far easier to infringe upon intellectual property rights.  This reality will force the courts and Congress to reexamine intellectual property laws.  Hopefully, Congress will legislate in a way that does not destroy the endless possibilities that 3D printing has to offer, while still encouraging innovation through intellectual property laws that provide proper economic incentives.  Desai and Magliocca suggest reform that will include removing infringement liability for people who use 3D printers for personal purposes and instituting clear legislation for websites that host CAD files and stricter regulation over certain raw materials.

Intellectual property refers to legally recognized products of the human intellect, such as copyrightable works, patented inventions, trademarks, and trade secrets.  One of the key differences between intellectual property and ordinary goods is that ordinary goods are rival, while intellectual property is non-rival.  For example, an apple is a rival good because only one person can gain the utility from consuming the apple.  However, intellectual property, such as art, is non-rival because one person viewing a piece of art does not detract from the utility of a second person viewing the same art.   Ideas, too, are non-rival goods because the reproduction of an idea does not prevent someone else from gaining utility from that idea.  We can all use intellectual property, including ideas, simultaneously.  Intellectual property right laws make non-excludable goods excludable.  Doing this has both positives and negatives. The key is to balance the strength of the rights to achieve the optimal utility for society.  Stronger property rights reward creators for new innovations, which encourages more innovation; however, the monopoly power granted by intellectual property laws reduces society’s access to these new innovations.

In the patent context, the advent of 3D printing requires a shifting of rights to reach the appropriate balance for maximum utility. The current patent system gives an inventor the right “to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for twenty years in exchange for public disclosure of the invention.  This system has worked fairly well thus far; however, 3D printing will pose serious issues for this system.  For starters, because the patent system requires detailed disclosure of the invention, individuals will be able to create a CAD allowing 3D printers to recreate any patented item.  Although patent law makes doing so an infringement, the low cost of 3D printing will make infringement so extensive that companies will be unable to sue all individual violators.

As with music, advances in technology will make infringement easy.  3D printing allows digitization of tangible items, and it empowers people to make customized goods.  If a little girl wants a specific type of Barbie that is not on the market, a 3D printer could make this wish a reality.  However, under traditional intellectual property law, creating such a Barbie could constitute a breach of the law.  3D printing technology changes the balance between giving innovators proper incentives and allowing people to utilize new innovations.  The balance on which intellectual property law is based has shifted, increasing the costs of strict protective laws; due to this increase in costs, the optimal amount of regulation has changed.  Since more people can create new items and get utility from creating items on their own, the social cost of current intellectual property laws has increased.  Accordingly, the current intellectual property jurisprudence no longer reflects an optimal balance; thus, it will become unworkable and reform will be necessary to keep up with advancing technology.