3D Printing and the Public Domain
posted by Gerard Magliocca
I’m going to do a series of posts this week about the legal implications of three-dimensional printing as I work through ideas for an article. (At the moment, this topic is far more interesting to me than the other ones that I was thinking about tackling.)
One problem that I want to highlight is that 3D printing could let firms establish a constructive patent over objects that are in the public domain. How is that possible? Suppose that there is a popular product based on an expired patent (or that was never patented). I write software for a 3D printer that produces the product far better or far cheaper than existing methods can. I patent the software. I would then have a substantial competitive advantage. While I could not exclude others from making the item through conventional methods, that would not matter much in practice. This is not different from any circumstance in which I come up with a superior manufacturing process. The issue, though, is that the 3D software for a given item is patentable and that my hypothetical could happen often. (By contrast, it’s hard to come up with a much better business method under normal circumstances.) This suggests that 3D software to make something in the public domain should not be deemed patentable. (That is not the only potential solution, as I’ll discuss later.)
Another related observation: if you think software patents are creating problems now, wait until we have litigation over 3D software patents.