3D Printing and Intellectual Property by Lucas S. Osborn
One of the subjects that IP laws have had to grapple with in the 21st century is that of 3D printing technology. 3D printers manufacture physical objects based on input from a digital file. The range of 3D printable products includes medical products, aesthetic products, plane parts, toys, buildings, guns etc. With the opportunities offered by 3D printing technology comes the worry from the IP community that the technology is susceptible to abuse and undue exploitation of IP rights. In 3D Printing and Intellectual Property, Lucas S. Osborn explains the technical aspects of 3D printing in plain language before going on to address how various aspects of IP laws (copyright, trademarks, patent and design laws) confronts the issues raised by 3D printing technology. A primer chapter on the foundations of IP law provides a much-needed context for the issues at the root of IP law concerns about 3D printing.
After an introduction that offers an overview of the book, the first two chapters of the book are devoted to ensuring that readers understand 3D printing technology and how it works. The author provides vivid descriptions of 3D printers and improvements over the years in how 3D printers operate. For instance, from 3D printers, which could only print prototypes, we now have 3D printers capable of mass-producing both simple and complex objects. These chapters also mention some of the ethical concerns raised by 3D printers (think 3D robots and 3D guns that may be printed from the comfort of private homes).
While Chapter 1 focuses on the capabilities of 3D printing technology, Chapter 2 provides an understanding of the various file formats used in the design and manufacturing process. Chapter 2 argues that referring to 3D printable files as CAD files is inexact and misleading and that there are 3 file formats that are important to 3D printing, each with different legal treatment. This sets the tone for the chapters on specific aspects of IP laws and how each of them addresses the various file formats.
For those not familiar with IP law, Chapter 3 provides a welcome introduction of the subject and its key concepts. It also explains relevant international frameworks and treaties that underpin national IP laws: the Berne Convention, the Paris Convention, and TRIPS Agreement. Concepts such as direct and indirect infringement, remedies for infringement, nationality etc. are also explained. For IP-aficionados, Chapter 3 is like preaching to the choir.
Chapters 4, 5 and 6 are devoted to patent law. According to Osborn, “patent law is less doctrinally and theoretically equipped to contend with 3D printing technology” than other areas of IP law. Chapter 4 discusses what constitutes patentable subject matter using jurisprudence from the US, Europe and Japan. It also looks at the various file formats (discussed in Chapter 2) and shows how each file format may or may not qualify as patentable subject matter.
Chapter 5 discusses the subject of patent infringement – in particular, direct patent infringement and how various conduct involving 3D printing technology may constitute direct infringement. The focus jurisdictions here are the US, Europe and Japan. The chapter also considers intermediary (e.g. 3D print shops) liability for direct infringement.
Chapter 6 focuses on indirect patent infringement, which requires knowledge of an existing patent or intention to infringe. Again, the focus is on the US, Europe and Japan. Osborn argues in this chapter that indirect infringement may assist with filling the protection gaps not addressed under direct infringement. The Chapter recommends a public interest approach to the judicial construction of indirect infringement – one that only penalises infringers who repeatedly and knowingly facilitate infringement by distributing 3D file formats.
Trademark law is known for its core function of providing a link between products and their source or origin. In Chapter 7, Osborn explores how 3D printing will disrupt this core function. Due to the separation that 3D printing makes between design and manufacturing, the trademark of the manufacturer of the physical product is actively disassociated from the manufacturing quality. In reality, the design file determines the manufacturing quality.
It is the turn of copyright law in Chapter 8. Should file formats for 3D printing receive copyright protection when they represent utilitarian objects? Chapter 8 offers strong arguments in doctrine and policy why this should not be so. It argues that the protection of utilitarian objects is the terrain of patent law instead.
In Chapter 9, Osborn discusses design law and takes the stance that file formats should only receive design law protection if the object they will print would qualify for design law protection.
Chapter 10 explores the question of the balance that must be created between the need to protect IP (especially utility patents) and the need to encourage lower cost of innovation available from the 3D technology. For its well thought-out suggestions on how the IP regime should respond to 3D printing technology, Chapter 10 may resonate with developing countries and emerging economies exploring how to balance IP protection and the public interests.
This book will be relevant to a variety of readers: lawyers, lawmakers, policymakers and judges. For its plain, easy-to-read language and its coverage of technical aspects of the 3D printing technology, this book will also be relevant to technologists and artists. Having said that, legal practitioners and scholars in the US, Europe and many countries in the Global North might find the book more relevant than practitioners from the Global South and the African continent, as it focuses on the former jurisdictions.
Available from Cambridge University Press
Book Review: 3D Printing and Intellectual Property Reviewed by Chijioke Okorie on Friday, January 17, 2020 Rating: