A Patent DMCA
posted by Gerard Magliocca
One point that is becoming clear with respect to 3D printing is that we are eventually going to need a Digital Millennium Patent Act. Why is that?
The federal statute on contributory patent infringement probably does not apply to websites that host files instructing 3D printers to make objects. 35 U.S.C. Sec. 271 (c) says that selling or importing a “component” of a patent can lead to contributory infringement liability. In 2007, though, the Supreme Court held, for purposes of a different section of 35 U.S.C. 271, that software is not a “component” of a patent until it is combined with the hardware. Basically, the Court said that software is the equivalent of a blueprint, and blueprints are not commonly understood as part of a machine. As a result, a website that has a “blueprint” for a 3D printer to make something patented would probably not be liable for infringement. (This conclusion is not airtight. The Federal Circuit could read the word “component” differently in a different section of the statute, but that’s not likely).
Accordingly, the notice and takedown safe harbor that we are familiar with for copyrights (on YouTube) or trademarks (on Ebay) is not required for a site like Thingaverse. Thingaverse is a digital intermediary for 3D printing files, and it does use notice and takedown for files that print copyrighted material (say, a statute). Only Congress can make notice and takedown a requirement for patents. This would be a good idea to give patentees limited protection, and also makes sense given that it is already required for copyrights on the same sites. Why have two sets of 3D rules?