William Cass, Partner, Cantor Colburn LLP
Tech invented decades ago to allow rapid prototyping without making molds; why is it interesting now? Body part printing! Cheaper parts!
ASTM committee has a goal of creating uniform standards nationally & internationally—if you print out an airplane part, you want it to be strong and stable—our standards are geared towards subtractive manufacturing, not additive manufacturing (3D printing). Suddenly can avoid offshoring; can make small items right here without making lots of molds. Disruptive given the ease of copying.
680 patent applications filed for additive manufacturing over the last 10 years; 200 classifications; new art unit being established at the PTO; 3000 issued patents.
Design patent: often overlooked, but can also lead to TM protection if distinctiveness is acquired over time.
Counterfeit goods: risks to health and safety if airplane parts are made badly. Va. Tech: embedding nanoparticles in fabrication so you can use X-ray or ultrasound sensor to get a signature and avoid counterfeits.
Michael Weinberg, Vice President, Public Knowledge
What do we wish someone had done in 1995 that would’ve made our lives easier in copyright fights today, that we can do for 3D printing that will help out people 15 years from now? What does it mean when everyone suddenly has access to the ability to replicate and create things as never before?
Universe of things protectable by copyright made recently are essentially all copyrighted; universe of things made recently that in theory could be protected by patent aren’t or won’t be. Remix culture is limited by the need to consider copyright/fair use. The physical world frees you from having to do that calculation. Example: the free universal construction kit, pieces that allow you to join Lego and K’nex and Lincoln Logs. We’re going to see more and more cases at the border of patent/copyright. People may claim copyright over digital files to claw useful articles into the scope of copyright. Doesn’t have to happen—merger is an issue—but there will be a conversation as more people get access to 3D printing.
Q: trade dress also an issue?
Cass: that’s a big issue with Lego. Acquired distinctiveness. (Isn’t there a functionality issue?)
Weinberg: functionality for interoperability, with the universal connectors. Because design patents and trade dress are so specific, and because digital files are easy to manipulate, if you don’t care about making an exact copy you can easily get outside the bounds of patent/trade dress—those will be interesting fights.
Cass: yes, but the industry will continue to file design patents on every single part you can think of, then claim market distinctiveness after the patent expired.
Q: how can laypeople deal with the complexity of the technologies?
Cass: judges have suggested specialized courts; you need tech degree to prosecute a patent, then we send the disputes to lay juries. Europe: tribunals of experts. At a certain point the demand may return for specialized courts. On the other hand, medical malpractice can be complicated, as can DNA analysis.
Q: speak to third party liability? Kickstarter’s been sued.
Weinberg: we don’t yet have an answer.
Cass: industries solve this problem with insurance, but that’s complicated especially when you have parts going around the world and you may need int’l insurance. Products liability insurance is useful, because even if there isn’t ultimate coverage you may have lawyers from the insurance company to defend you. But IP coverage may come into it.
Weinberg: and less sophisticated companies may also be in trouble.