3D Printing and Derivative Works in Patent

Before I get into the trademark and copyright aspects of 3D printing, let’s step back and evaluate the patent problem in more abstract terms.

Classical IP law is premised on a sharp distinction between functional and nonfunctional.  Utility patents are functional.  Copyrights and trademarks are not.  Now, of course, there are design patents (which are, in my view, woefully under-theorized), and there is the idea of aesthetic functionality, but these are bit players in what was a relatively stable regime.

Then software came along and blurred the conceptual line.  Software is a text that does things via a machine.  This is one step removed from a blueprint, which instructs but cannot do anything without significant human effort.  As a result, we plunged into a lengthy debate over whether software should be protected by copyright, patent, or neither, which is now (uneasily) resolved in favor of patent.

3D software takes this problem to the next level.  It is a text that builds things via a machine.  What I suggested yesterday is that this means you cannot view 3D software patentability in isolation–it may depend on the status of the object that the software makes.  Suppose I own a patent on a given invention.  In practice, it is hard to see how someone else could claim a patent on 3D software to make that item, though letting the patent owner have that software patent might not seem so bad.  A different situation is presented if the object (a deck of cards) is in the public domain.

In effect, we could think of 3D software as a kind of derivative work for a patent owner and nothing more.  This is clearer in the copyright arena. If I write 3D software to make statutes of Harry Potter, few would doubt that the software would fall under J.K. Rowling’s copyright (unless you could make a plausible fair use argument).  Why should the same logic not apply to patents?  You could resolve that question by saying that 3D software is neither patentable nor copyrightable (because the creation of any given item is nonobvious once the principles of 3D software are established)–only the product made by the software is.

Anyway, I’m not sure yet.


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