The Applicability Of Intellectual Property To 3D Printing

3D printing (or additive manufacturing) refers to technologies that produce three-dimensional objects by depositing layer upon layer of material during the manufacturing process. New applications for 3D printing emerge weekly, if not daily. Some have predicted that 3D printing will have a greater impact on economies and society than the Internet.1 For instance, 3D printing could eliminate the need to ship repair parts from a manufacturing facility to a distribution center or even an end user. The ECONOMIST has called 3D printing the "third industrial revolution."2

3D printing primarily implicates three types of intellectual property: copyrights, patents, and trademarks/trade dress. A brief discussion of the 3D printing process will assist in explaining the applicability of each type to 3D printing.

The process starts with a 3D model—or digital blueprint—for a physical object in a computer file. A designer may create a 3D model by using a computer-aided design program. A CAD program eliminates the need to make a physical prototype. Alternatively, a 3D scanner may collect digital data on the object's shape and generate the digital blueprint. A designer may alter that data and change some aspect of the scanned object's shape. When completed, a 3D model controls how a 3D printer applies successive layers of material to make an object. So a 3D printer converts a digital blueprint into a physical object called a 3D print.

3D printers can use a variety of materials, including plastics, ceramics, metals, foodstuffs, and biological tissue. Different technologies utilize different materials in different ways. As an example, a laser-based stereolithography process typically employs photopolymer resins that react with the laser and harden to form a solid.3 As another example, a freeform fabrication process generally uses a heated nozzle that melts a metal or plastic filament and then deposits the molten material at predetermined locations, building an object from the bottom up.

An understanding of the respective rights conferred by copyrights, patents, and trademarks/trade dress will aid in considering the applicability of each to 3D printing.

Copyrights

Copyright protection applies to "original works of authorship fixed in any tangible medium of expression."4 So copyright rests on three elements: originality, expression, and fixation. Copyright law sets a low threshold for originality. Originality simply requires that the creator produced the work by his or her own intellectual effort rather than copying an existing work.5 As for expression, a copyright protects a specific expression of an idea but not the idea itself. As for fixation, the work must exist in a form capable of reproduction (or copying).7

Copyright law explicitly excludes from protection ideas, concepts, principles, procedures, processes, and methods of operation.8 In addition, copyright law does not protect facts, titles, names, slogans, and short phrases.9 Similarly, if only one or very few ways exist to express an idea, copyright law does not provide protection because the expression has "merged" with the idea.10

Nevertheless, many forms of expression enjoy copyright protection, including literary, musical, and dramatic works, pictorial, graphic, and sculptural works, motion pictures, sound recordings, and architectural works.11 Computer programs generally fall within the category of literary works.12 Jewelry designs generally fall within the category of pictorial, graphic, and sculptural works.13

Copyright protection applies to unpublished as well as published works.14 In general, copyright protection exists from the moment of creation in a tangible medium of expression until 70 years after the creator's death.15

The term "useful article" refers to a product with a utilitarian purpose or function that goes beyond portraying appearance or conveying information.16 Examples include clothing, furniture, eating utensils, and mechanical tools. A useful article's design constitutes a pictorial, graphic, or sculptural work—and thus protectable by copyright—only if the design incorporates aesthetic features that can exist independently of the article's utilitarian aspects.17 For useful articles, copyright protection exists only to the extent the article's aesthetic features can be identified separately from its utilitarian aspects.18

For instance, copyright protects a printed design appearing on a coat because the design exists separately from the coat's utilitarian purpose. But copyright does not protect the coat's overall design since the coat serves a utilitarian purpose.

A copyright gives the owner the exclusive right to, among other things, make copies, distribute or sell copies, and prepare derivative works.19 The term "derivative work" refers to a new work based on or derived from one or more already existing works.20 Common derivative works include translations, abridgments, motion pictures based on books, sculptures based on drawings, drawings based on photographs, and new versions of computer programs.21

Copyright may protect the computer file containing the 3D model.22 Copyright law defines a "computer program" as "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result."23 The computer file containing the 3D model satisfies that definition because that file includes the instructions used by the computerized printer to make the 3D print.24 But only the file parts "that represent nonessential, creative expression receive protection."25

If a designer uses a CAD program to produce a 3D model for a creative object (as opposed to a useful article), that effort should suffice to satisfy the originality requirement, and copyright should apply to the 3D model.26 An exception may apply if the 3D model produced with the CAD program constitutes one of only a few ways to digitally depict the object such that the expression and the idea have "merged."27 If that exception does not apply, someone who copies the 3D model and makes a 3D print of the creative object from the model infringes, first, by copying the computer file and, second, by printing the object.28

In contrast to a 3D model produced with a CAD program, if someone uses a 3D scanner to generate a 3D model, copyright should not apply to the 3D model because it lacks sufficient originality to qualify for protection.29 Still, if copyright protects the scanned object, using the 3D model to make a 3D print of the scanned object infringes unless the owner authorized the printing.30

Patents

Two types of patents can protect different aspects of 3D printing technologies: utility patents and design patents. A utility patent can cover "any new and useful process, machine, manufacture, or composition of matter" and any improvements.31 A design patent can cover "any new, original and ornamental design for an article of manufacture . . . ."32 An article's ornamental design includes its configuration or shape, the surface ornamentation applied to it, and the combination of configuration/shape and surface ornamentation.33 But if an article's configuration or shape results solely from functional considerations, the design is not ornamental and a design patent is inappropriate.34

In short, a utility patent for an article can protect what it does, how it functions, or how it is used, while a design patent can only protect an article's appearance. Design patents typically have a relatively narrow scope limited to the patented design and any "colorable imitation" of it.35

In contrast to a copyright, which exists the moment an original work becomes fixed in a tangible medium of expression, an inventor must file an application for a patent with the U.S. Patent and Trademark Office.36 The PTO then decides whether the invention set forth in the application satisfies patentability requirements.37

Utility and design patents give the owner the right to exclude others from making, using, selling, and offering to sell the patented invention in the United States.38 Because utility and design patents cover different aspects of an article, both types of patents may issue for...