In light of the previous discussion on copyright law and intellectual property rights and what they mean for the 3D printing industries, an important question arises: Is it time for 3D printing companies to lobby Congress for a more inclusive definition of articles to include digital files? Tom Hazzard and Tracy Hazzard take on this issue as a follow-up to last episode’s interview with copyright expert, Maria Speth. Listen as they discuss the nuances revolving around digital intellectual property – something that is not yet sufficiently covered by existing intellectual property laws.
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Should 3DP Companies Lobby Congress?
This is Ask Us Anything.
It’s a good one to follow up on our episode with Maria Speth.
We asked ourselves this question towards the end of our recap of the episode. The episode was all about copyright and ruling that had gone down in the Invisalign and International Trade Commission enforcement of their patents. There’s an interesting topic here. The question we asked ourselves is, should the 3D printing companies out there start lobbying Congress to get 3D design files treated as articles? Because that’s what they ruled against them in this particular ruling.
I would think anybody in this industry would say yes wholeheartedly.
Here they are. We hear a lot about 3D Systems and Stratasys, and fighting about whether or not they’re little chip in their material sample should be copyrightable. They’re fighting about all this stuff in here, but they’re not servicing the larger 3D print community and increasing the value of 3D printing worldwide. If it doesn’t become commercable worldwide, meaning, making money worldwide, then 3D design files are useless or only in the decorative sense in which they’re copyrightable, are they useful.
We learned with Maria that copyright is a good way to protect a lot of the 3D design files that are out there. Particularly ones that are unique designs that have an aesthetic value, but not necessarily a specific functional value. If you create some new gear that has a new function, that’s not going to be copyrightable, but if you create a new decorative object like ornaments in the White House competition and things like, copyright is an appropriate and affordable option to help protect your file.
I don’t want to change that. We want that to still be the case because copyright is the most viable and applicable option, and it is internationally enforceable so that’s important.
It’s universal across countries where it’s not a different rule in every country.
We used the example of a utilitarian patent. What happens when you have a drawer knob or a drawer pole? It’s utilitarian. Assuming there isn’t a decorative pattern on it, which is also copyrightable, but assuming it’s just a shape, form, or whatever. You have a functional part that you have a design patent on in the US or you have a utility patent on in the US. Someone overseas is trading that design file and open market selling it.
Let’s say they took that design file, printing it in another country, and then importing it to the US as a physical thing to sell.
If you import it as a physical thing to sell though, you tripped over this thing because you’re importing an object. It’s physically become an article, but it was still the potential of an article in that design file format. If you’re shipping the file over and violating someone’s patent here, and it’s an individual printing at home, but still, you’re buying an illegal file.
That file represents a physical thing somebody can print and because it’s a functional object, it should not prevent it from being protected.
As long as it’s patentable. The object itself, the design file content, or whatever is in that file has to be violating some patentable content. It’s not open source.
Any kind of object that you could possibly make in 3D printing would be design patentable. There’s a low standard for how to make that.A file represents a physical thing. Just because it is a functional object, that doesn’t mean it should not be protected. Click To Tweet
If you didn’t design patent it, then you don’t have a right to enforce it. It’s not like copyright where the minute you design it, it’s yours. It’s different in that sense. You have to spend the money and you have to patent it. If you’ve done that and you’ve spent that money, but these companies can violate US law by just importing the design file itself, now we have issues.
There certainly are not enough laws on the books to help protect those things. I made the analogy a lot of the time, but it does apply. The music industry is mature on this and in our 3D printing industry, the design files are immature in this regard in terms of the law.
That applies more to copyright issues and not to patent issues. We have to think about it as our border is not just a customs border anymore. That’s what the ITC, the International Trade Commission, is monitoring. Invisalign was asking them to monitor the digital border and the digital border is getting more significantly valuable than the actual physical border in a 3D print future. We have to start taking that seriously. If companies with deep pockets like Stratasys and 3D Systems want more industrial adoption of it, then this is something they need to seriously think about lobbying for.
I would argue that the digital border doesn’t exist.
There is no digital border, but if those files are coming into the US in a commerce situation, then you have to be able to stop it.
Through an end-run around commerce.
Which is what this company is doing. Unfortunately, their situation is a little bit different and it doesn’t apply in this particular case but it could apply if Congress was lobbied to treat it that way.
Because they fall in the patent protection realm and not copyright, they need their files to be considered articles and they should be. It’s a technicality, but it’s a law that was created in a past time where digital files didn’t exist, so it doesn’t consider that.
We aren’t lawyers. We can’t debate the merits of this Invisalign case. Do I think it’s unethical? Yes. ClearCorrect is knowingly violating, skirting the law technically legally.
They’re allowed to because there’s nothing in the law that prevents it.
Invisalign is trying to stop them and they haven’t been able to. At the same time, if ClearCorrect believes that Invisalign isn’t entitled to those patents, then go ahead and invalidate them. There’s a process for that and you shouldn’t be just skirting the law.
They’re taking the cheapest path to try to get around it.
They know how long this takes and we know how long this takes. This takes years to battle out and they know that they’re going to make a heck of a lot of millions of dollars in the meantime.
It’s Invisalign who took it to the ITC, not Clear because Clear was being sued. Align Technology is the ones that took it to the ITC because that was a faster and cheaper route to take than straight out patent infringement.
That’s all the power to them for trying it. It didn’t work, but at least they tried that. It brings up an important point and we are opening up the possibilities that design patents and all of those things are invalid in a digital world.
Another good example of this thing for a lot of readers out there. You know how big at the SoCal MakerCon, not only was 3D printing, but drones were big. Drones are huge in this industry.
All I’m thinking about is we listened to some of the SoCal MakerCon recaps and all you’re hearing are the drones in the background.
Here’s the thing. Let’s say somebody invents a new kind of drone and they do a new function. Let’s say something about the structure that holds those propellers, a different kind of rotor or it’s physically able to move and swing in a different direction to perform a certain function. This drone is a 3D printable item and the company is using 3D printing to manufacture in low volume. Maybe they even sell their files out there on the internet for a value or a price for people to go and 3D print themselves and make their own drone.
Here, they could get a patent on the utility function of how that drone operates and they have a 3D digital file that they are trading in commerce. If somebody can steal that file, take it to another country, and then serve it into the US off of their server that’s in another country to sell it to people and go around them. If that digital file is not considered an article of commerce or a physical thing that is being stolen, that’s not right. The company that invented it is not going to benefit from it.
It forces a small company who maybe cannot afford the international patent cost to not even be able to protect the country in which they did pay for the patent.
Waging patent litigation, as we know, takes millions of dollars and it takes years. It is not a quick path or a helpful path for most companies to resolve their problems. Maybe if copyright were expanded to do more than just non-functional things for our industry, that would help, too. One way or another, whether it’s this issue of digital files being considered as articles or copyright law being expanded to cover more of these things.
Maybe a new class of design patent might be applicable where it’s a digital design patent. In this particular case, non-decorative items, unfunctional items that have design patents applied to them. It makes more sense to be able to cover the design file as an article because it is commercable.
I don’t like doing it in the design patent world or in the patent world at all because of how costly it is to wage that legal battle and how costly it is to achieve that patent.
Maybe you could just add a class or add a category or something like that.
I don’t see why we can’t add a class of copyright as well. That’s what they did in the music industry. It has its own class and it has its own special treatment, privileges, and laws, and there’s nothing wrong with that. It could apply here, too.
Copyright applies to things that are original. Anyway, we’re debating this, but the reality is that if the 3D printing big players are committed to 3D files, 3D design, and 3D printing becoming more of a part of the new economy, then they better invest in that. That means lobbying, and that’s the way the world works.
It’s not just if they want it to be. It’s inevitable that it will be. If they don’t step up, put some money into this, and lobby Congress for proper protection for these digital files, we’re going to end up with it being continually decided in courts with one lawsuit after another. If they don’t put money on the front end and lobbying it, they’re going to be spending it on the back end defending or waging lawsuits.
We’re going to find countries like Pakistan making money off of our originations. These are just our thoughts on it. We are not attorneys. If you have issues that require an attorney, please read Maria Speth’s interview. It’s episode number 134. She’s quite a crackerjack attorney in both litigation and other things. We’ve used a lot of attorneys over the years and we have our favorite one in Rhode Island. I got to give a shout out to Steve Holmes, Barlow, Josephs & Holmes is his firm. We’ve been doing business with him for many years. Also, Jason Webb who is out of Utah.Copyright is the most viable and internationally enforceable protection for 3D design files. Click To Tweet
He’s more of a patent attorney that writes applications. It’s his primary thing and an expert in his field.
He’s totally knowledgeable and he has a great email list that he started up for inventors and entrepreneurs. If you’re an attorney out there and you’re dealing with specifically 3D printing and other things, we’d love to hear from you. If you’ve got thoughts, ideas, or papers that you’ve written, we’d love to repost them and talk about them.
If you’re a reader that’s having an issue with copyright or some intellectual property protection over your 3D files, please we’d love to hear about that.
We’d love to hear your story about how your battles are going and what’s going on there because this is a big issue. It’s going to shake out and the industry is going to change. We want to keep at the forefront of that for all of you because we think it’s going to make all of our businesses and all of our personal use of 3D printing better. You can find us anywhere @HazzDesign.
Thanks for reading.
- Maria Speth – past episode
- 3D Systems
- Barlow, Josephs & Holmes
- Jason Webb
- @HazzDesign – Instagram
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