3D printers intended and priced for the home user are now
available. These printers in conjunction with websites such as MakerBot's Thingiverse
allow individuals to download and print physical objects in much
the same way that music could be downloaded and burned to CDs in
the 1990s. And, like the downloading of music, no doubt its
popularity will rise rapidly as the technology improves, comes down
in price and moves into new and unexpected directions.
3D printing leaves today's patent owners in a similar
position to music copyright owners in the 1990s, in that enforcing
their rights is complicated by inter-jurisdictional issues that
arise from transmission via the Internet. What do you do if
Australian consumers use data from a US website to print products
that infringe your Australian patent?
Additional challenges arise because the operator of such a
website (even if the website is in Australia) may not directly
infringe the patent rights. In Australia, a patentee has the right
to stop others 'exploiting' an invention.
'Exploiting' includes making, using, selling and similar
actions in relation to the patented invention.
Supplying a computer file describing a patented product is not
exploiting the product, even if someone else uses that computer
file to print the product at home.
In this case, it is the home consumer who literally infringes
the patent rights rather than the supplier (e.g. website operator).
Of course, patentees would prefer to take action against the
supplier, rather than the consumer, but this would involve a more
complex and uncertain legal argument regarding the supplier's
contribution to the consumer's infringement.
It seems that there is a need for change, and we suggest (and
hope) that the solution will include measures similar to those
evolving to protect the music (and film) industries.
In its recent discussion paper
Online Copyright Infringement - Discussion Paper - July 2014,
the Australian Government suggests allowing copyright holders to
block access to foreign websites that offer copyright-infringing
material. Perhaps soon we will see proposals also to block websites
supplying data that can only be reasonably used to infringe a
3D printing is an exciting new world. It seems inevitable that
the technology will advance and grow in popularity and that the
legal system will have to change, but the form of that change and
the road to get there remain to be seen. How long before we see a
celebrated case of a patented product going viral online? Will the
legal system have changed in time? Or will that case be the
catalyst for the change?
1And while we're at it, why not block
websites that appropriate others' trade marks?
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