Thursday, January 07, 2016

Holbrook piece on the dangers of 3D printing appears in Scientific American

"The Conversation" segment of Scientific American has a piece by Professor Timothy Holbrook titled
How 3-D Printing Threatens Our Patent System

Holbrook writes:

Technically called “additive manufacturing,” 3D printing from a CAD file allows someone to “print” physical items at home. The printer follows a file’s instructions to generate a physical object. The printer head releases tiny squirts of material that, layer by layer, build up into the item. 3D printers can create incredibly complex objects, such as rocket engine parts, human tissue, a bionic ear and even a functional gun.

As to direct infringement, Holbrook writes;

Each printed copy of an invention is a lost potential sale to the patent holder. But, to sue for infringement, the patent owner would need to be aware that someone is using a 3D printer to make the patented invention. And that’s a very tall order since these printers are widely dispersed across households and businesses.

IPBiz notes that 3D printers make things out of plastics, so patented items which are inherently not suitable for duplication in plastic are not an issue.

Secondly, patent owners go after people who are economic threats. The Wright Brothers never sued amateurs; they went after people who were making money. These people are not so difficult to find. People dabbling out of their garages (or motorcycle shops) were not such a threat.

As to indirect infringement, Holbrook writes:

Alternatively, patent owners could go after the people facilitating the infringement. The Patent Act permits a patent holder to sue parties who induce others to infringe. Potential inducers of patent infringement here could be the sellers of the 3D printers, someone providing CAD files of the patented device, or websites that sell or share various CAD files that instruct the 3D printer to make the patented invention.

IPBiz notes In a 6-2 decision in June 2015, the United States Supreme Court in Commil USA, LLC v. Cisco Systems, Inc., held that an accused infringer’s good-faith belief of patent invalidity is not a defense to a claim of induced infringement but also noted that induced infringement requires knowledge of infringement (as opposed simply to knowledge of the patent; clarifying Global-Tech).

IPBiz notes that patent owners simply have to go after the direct infringers, who are making copies of a patented item.
These people are good candidates for willful infringement.

From the bio for Timothy Holbrook:

Professor Holbrook graduated summa cum laude and as valedictorian from North Carolina State University, earning a BS in chemical engineering with a life sciences concentration. He received his JD from Yale Law School, where he served as a lead editor and publications director of the Yale Journal on Regulation. After law school, he clerked for the Honorable Glenn L. Archer Jr. of the US Court of Appeals for the Federal Circuit. Following his clerkship, Professor Holbrook worked in Budapest, Hungary, with the Hungarian patent law firm Danubia. Upon his return to the United States, he associated with the Washington, DC, law firm of Wiley, Rein & Fielding (now Wiley Rein), where his practice focused on patent and appellate litigation.



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