3D Patent Legislation
Deven and I will discuss our 3D printing research at a conference this weekend. To me, the most interesting legal issue for 3D printing is how Congress will react to this technology. There are three broad principles that ought to shape any legislative response.
1. Removing the shadow of liability: Under current law, anybody who prints a patented item or uploads a 3D file that could allow such printing would be liable for infringement. There is no fair use exception in patent and strict liability is the standard. While an infringement lawsuit against a given individual is unlikely, the fact that liability is possible could chill a lot of useful research and tinkering. Congress needs to do something about this. One approach, which was proposed in the 19th century, would be to establish a fairly high jurisdictional minimum for damages to give a court the authority to hear a patent infringement case. This would have the effect of excluding home 3D printing without disrupting other parts of the patent regulatory scheme.
2. Product Safety: A valid concern about some 3D printed products is that they will cause injuries because they will not be subject to rigorous testing. Product liability law can handle this problem after the fact, but what about ex ante? Congress could respond by creating an agency that would promulgate safety guidelines to address this concern. Another facet of the public safety debate, of course, involves the 3D printing of guns or weapons. That also needs to be addressed, though in practice this will be really challenging.
3. Standardization: One advantage of 3D printing is that it allows for almost infinite customization, but on the other hand parts often need to fit within an existing product or network to function. In other words, some standardization is necessary for optimal performance in some industries. Should this be left to the market? (People who make subpar parts will just not make money) Should Congress impose minimal standards in certain areas and restrict 3D printing in those narrowly tailored fields? That’s less clear to me.
One final note. Valid regulation of safety and the imposition of standards SHOULD NOT become an excuse used by vested interests in the 2D patent system to stop the proliferation of 3D printing technology.