3D printing is an exciting field of technology and has made some great advances recently. It is a disruptive technology with the capability to transform the manufacturing industry. Relatively inexpensive hardware and openly available design files allow individuals and companies to manufacture “complex” components at any location. The nature of 3D printing technology will test the bounds of liability existing patent, trademark, and copyright regimes. The maturing technology has changed and will continue to change what can be printed. More specifically, it has made strides toward becoming a common household appliance. Companies now offer 3-D printers for just over $1,000, and prices are dropping rapidly. One recent study on the cost effectiveness of 3D printing at a household level.
What is often overlooked is that beyond just liability issues raised by the new technologies, the new technologies will impact the enforcement and valuation of the intellectual property. There will be issue in how the laws and courts evolve to address 3D printing and its legal impact. In making a decision to proceed with a patent application, the impact of possible liability changes AND the impact to valuation and enforcement of patent or other intellectual property rights of potentially 3D printable matter.
I have heard questions about 3D printing in relation to companies’ intellectual property, as these decisions must be made now in the infancy of 3d printing). I have also heard cries that 3D printing will be the fall of enforceable intellectual property rights. I believe that those cries are premature.
What is the infringement model and who is the primary infringer? Perhaps, the music industry holds some more predictive lessons. At one time, the dominant music pirate infringement model was the small scale manufacture, pressing CDs and street corner vendors selling the counterfeit CDs. The target for criminal action and lawsuit was that large scale pirate or the corner vendor. Then digital music and peer to peer sharing became a widespread model of infringement.
When one thinks of infringement in a product context, one typically thinks of the manufacturing line. One would focus on that manufacturer in order to abate infringement. However, 3D printing holds the possibility of changing that. If potential infringement shifts to small scale infringers, the ability and practicality to enforce against individuals lessens.
There is varying schools of thought as to how valuation might be impacted. One school predicts a negative impact. They reason that consumers will be able to scan and print any object thus the value of a product patent is negligible. Websites like Thingiverse will freely distribute designs and it would be impractical to enforce infringement for a single item. Other schools of thought predict overall neutral or positive impact. They reason that there are already patents for digital rights management for 3D printing technology. They also point to third party 3D printer policies restricting printing where it would infringe other’s intellectual property. Other arguments favoring neutral or positive impact may be drawn from the current music distribution model. Similar advantages that digital music facilitated for independent music may occur for some products. 3D printing may lower the threshold sales volume such that products that were not previously commercially viable can enter the market. Some potential patents with limited market prospects might meet a lowered minimum threshold market potential.
Some factors to evaluate how 3D printing might affect patent valuation and enforcement include:
- Can the product currently be produced with a 3D printer?
- If so, is the printing cost in the range of the purchase cost?
- If so, is the printed product of similar quality?
- Is the product likely to be capable of reproduction with a 3D printer?
- Is the product a low price product?
- What is the projected sales volume?
Of course, one doesn’t haven’t have a crystal ball to predict the impact of 3D printing on patent valuation and enforcement but the impact should not be ignored.