3D Printing in Intellectual Property

By: Yixin Bao

Starting in the 1980s, 3D printing or additive manufacturing arose and began to develop. Although the standard limitations that exist in current Intellectual Property (“IP”) law can be applied to 3D printing, there are still gaps in the legal profession that the courts need to address.

What is 3D printing? 

3D printing produces 3-dimensional physical objects from digital templates through a variety of processes. This is normally done under computer control, with materials added together, such as plastic, metal, and others, typically layer by layer. As of 2020, after around 40 years of its initial development, 3D printing has become a more mature technique. 3D printers are now more affordable allowing the public to use 3D printing techniques in normal life. Consumers can easily find a low-cost 3D printer as cheap as a few hundred dollars. 

3D Printing and IP Law

Today, there are more prosecutions and litigation over the use of intellectual property protection measures in the context of 3D printing. For example, Patent and Litigation Trends for 3D Printing Technologies published on IPLytics Platform found that the patent applications related to 3D printing continue to rise in the passing years, from around 2,000 in 2007 to over 20,000 in 2019. The good news is that the standard limitations that exist in current IP law can also be applied to 3D printing. 

Patent protection, for example, plays a significant role. In the U.S., patents are a government-granted monopoly towards the inventor for a limited period of 20 years. As WIPO’s 2015 World Intellectual Property Report on Breakthrough Innovation and Economic Growth has shown, 3D printing companies are enforcing patents heavily. These include not only specialist 3D printing companies but also major manufacturing companies, such as GE and Siemens. One of the reasons why patent protection is an important strategy over 3D printing is that such protection covers a wide variety of objects, including printers, the components of such printers, the manufacturing processes, and the products. In addition, the industrial 3D printing sector does not solely rely on patent law in its protection strategy. Trade secrets, copyright, and trademark protections also play a role.

However, there are also questions that courts need to address when it comes to the 3D printing technique. Compared to the industrial sector where the protection is similar to the other manufacturing industries, 3D printing for non-commercial purposes seems to face several new challenges. One question raised by Elsa Malaty and Guilda Rostama published in World Intellectual Property Organization (“WIPO”) Magazine is who would own an object when it is conceived by one individual, digitally modeled by another, and printed by a third individual. 

Why does it matter?  

With the quality of 3D printing continuing to rise and the price continuing to drop, 3D printing is now more advanced and accessible, so it can be foreseen that 3D printing-related legal protections and disputes will only increase in the future. The challenges and opportunities will come after the earliest patents start to expire. The original owners would need to develop new patentable technologies to maintain those protections. The expiration will also present an opportunity for the Open Source Community.

IP law contributes enormously to national economies. Dozens of industries, including 3D printing, rely on the adequate enforcement of IP. On the other hand, consumers benefit from IP to ensure the quality of the products, such as 3D printers. This is especially important because the availability of low-cost, high-performance 3D printers has put the technology within reach of consumers. 

At the same time, IP-related issues are only one legal aspect that 3D printing raises. During the use and application of this technique, other aspects of law will undoubtedly be implicated and will need to be resolved eventually.

Why we should pay attention to standard essential patents

By: Han Xue

Standard essential patents, or “SEPs,” are patents that protect technology essential to an industry’s standard use. The name is self-descriptive, in that such patents set the standard that an industry must use in order to innovate effectively. One example of this is WiFi. So long as a router is available, it doesn’t matter what phone or computer one has, because, generally speaking, any phone or computer, regardless of brand, will be able to connect to it. So, the ability to connect to WiFi is an industry-standard, and WiFi itself falls under the umbrella of standard essential patents. Other examples include USBs and JPEG, as well as LTE and 5G technology for phones. These industry-specific standard-setting organizations (SSOs), or standard development organizations (SDOs), composed of industry leaders determine which patents are essential for the entire industry’s success, and thus, qualify to be SEPs. Once recognized, an SEP can then be licensed to entities in the relevant industry.

The ubiquity of SEPs and the roles they play in many of the technologies in common use today make them immensely valuable. The ability to monetize them through licensing can serve as a strong incentive for research and development in many industries, especially those involved in complex technologies that require significant investment to develop, and the mirroring loss of financial compensation that occurs when an SEP is infringed upon gives companies good reason to maintain a tight grip over the ownership of their SEPs. Furthermore, the development and spread of the standards that such patents protect can enable smaller businesses to more easily access the market, creating competitive conditions that drive down prices for consumers and incentivize innovation.

Given the above, it’s unsurprising that a 2021 announcement by the Antitrust Division of the Department of Justice (DOJ), the U.S. Patent and Trademark Office (USPTO), and the National Institute of Standards and Technology (NIST) regarding a draft policy statement on the 2019 Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments drew some attention. The original 2019 policy statement, among other things, examined remedies for infringement of SEPs subject to certain licensing agreements, and the draft, which contained language limiting the use of injunctions in the enforcement of SEPs drew strong scrutiny from those in the intellectual property (IP) field.

One negative reaction to the anti-injunction portion of the draft policy was provided by the Center for Strategic & International Studies (CSIS), which published an article decrying the policy as one that would effectively reduce the value of SEPs, discourage innovation, and undermine the reliability of the intellectual property system in the United States. Specifically, the CSIS focused on the concern that, without the threat of injunctions, infringers would face fewer risks by refusing certain fair licensing agreements and gain terms skewed in their favor. This would, among other things, harm SEP owners acting in good faith, ultimately leading to a decrease in SEP value and a subsequent decrease in competition at the standard-setting level. Another article was published by IPWatchdog, which criticized its language and unsupported statements. In the end, after receiving substantial criticism, the draft policy statement revealed in 2021 was not implemented.

More recently, policy related to SEPs has continued to evolve. This last summer, the DOJ, USPTO, and NIST announced a complete withdrawal from the 2019 policy statement, with the stated goal of creating “incentives to generate more innovation.” The three agencies also noted concerns about anti-competitive actions surrounding the implementation of SEPs, and explicitly claimed that this move would “strengthen the ability of U.S. companies to engage and influence international standards that are essential to our nation’s technological leadership.” More specifically, this withdrawal signals the DOJ’s attempt to use a case-by-case approach when analyzing opportunistic behavior that may lead to anticompetitive behavior in the context of certain licenses for SEPs. This move has been met with less disdain than the 2021 draft policy statement. Save Our Standards, a group centered around certain patent licensing commitments, applauded it as a step towards a fair and transparent licensing system for SEPs. Others have adopted more of a wait-and-see approach, watching for further guidance from the DOJ and pending litigation.

Right now, the stakes for the implementation of such policies are higher than ever. In 2021, the United States ranked 3rd on the Global Innovation Index (GII). However, over the last decade or so, and in the last few years, in particular, there has been a growing media focus on the perception of a blanket decrease in American innovation, and a corresponding decrease in American competitiveness in the global context. This has contributed to a flood of publications centered around current policy and America’s decline in innovation, especially in areas related to technological innovation. Given the state of intra- and international competition in technological fields, as well as increasing international tensions over technological supremacy, it is more important than ever to keep a close eye on legal developments that influence innovation, such as policy decisions affecting the protection of SEPs.