Category: Intellectual Property


3D Printing, Maybe It Is Magic

More and more 3D printing seems like it’s magic. In Patents, Meet Napster: 3D Printing and the Digitization of Things Gerard and I explain that it is not quite magic yet. And our argument is that the law can perhaps make sure the technology has a chance to reach a magical stage. That said each day we wrote a new report made me wonder at how quickly the technology is moving.

Forbes reports that a jewelry company is using 3D printing and Google Earth to print $250,000 jewelry. A couple weeks ago UC Hastings put on a Symposium to Illuminate Legal Issues Posed by 3D Printing Technology. I spoke and had a great time meeting more folks interested in the technology and in seeing it thrive. Mark Lemley gave the key note and is poking at many ideas that resonate with me and my work. He spoke about how technology is changing scarcity and will affect labor. The Forbes piece captures the shift:

Shoppers can completely customize their own design and have the finished product delivered in 3 or 4 days. “We’ve had a great deal of difficulty competing with cheap labor overseas,” said Bakhash, whose father Charlie founded American Pearl in New York’s diamond district in 1950.

“Now, with the advent of our platform, we’re no longer taking off-the-shelf parts and welding. There’s no jeweler at a bench with a blowtorch. The cost and labor savings is phenomenal. And we’re empowering consumers to make jewelry in real-time.”

The process starts on, or its sister site, where a customer is able to create a unique piece, whether a $400 pair of earrings or a necklace that goes for six figures.

The Maker movement and the new wave of customized things is fascinating and exciting. But it may be that the hand-crafted, Etsy moment will be short-lived and the automated, design and print world will take over. I think that the result will be a hybrid. Folks will use the tech to produce more and to make customized goods for less cost. Some labor will be eliminated. Some labor such as design will be valuable. But just like the shifts in copyright, we will see strange and large shifts in who makes money and how it is made. Then again not all of us can be poets and also eat. More on that in another post.


Third Annual Robotics and Law Conference “We Robot”

hdr-we-robot-2014-1Michael Froomkin, Ian Kerr, and I, along with a wonderful program committee of law scholars and roboticists, have for three years now put on a conference around law, policy, and robotics.  “We Robot” returns to the University of Miami School of Law from Stanford Law School this year and boasts an extraordinary roster of authors, commentators, and participants.  Folks like Jack Balkin, Ann Bartow, Kenneth Anderson, Woodrow Hartzog, Mary Anne Franks, Margot Kaminski, Kate Darling, and David Post, among many others.  Not to mention a demo from a roboticist at the University of Washington whose lab built the surgical robot for the movie Ender’s Game.

I’ve discovered that academics in other disciplines habitually list the acceptance rate of papers.  We Robot III accepted only twenty-five percent of the papers under submission, which compares favorably with the strongest and longest-running conferences in computer science, electrical engineering, and human-computer interaction.  Indeed, judging by the abstracts at least, the papers this year are very exciting, taking on difficult and timely issues from a range of perspectives.

On behalf of our community I invite you to register for and attend We Robot, April 4-5, 2014, in Coral Cables, Florida.  I also hope those who enjoyed We Robot I and II will chime in below, if inclined!  Thank you,

The We Robot III Planning Committee


UCLA Law Review Vol. 61, Issue 3

Volume 61, Issue 3 (February 2014)

How to Feel Like a Woman, or Why Punishment Is a Drag Mary Anne Franks 566
Free: Accounting for the Costs of the Internet’s Most Popular Price Chris Jay Hoofnagle & Jan Whittington 606
The Case for Tailoring Patent Awards Based on Time-to-Market Benjamin N. Roin 672



Here Comes the Sun: How Securities Regulations Cast a Shadow on the Growth of Community Solar in the United States Samantha Booth 760
Restoration Remedies for Remaining Residents David Kane 812





Board Games and Intellectual Property

120px-Monopoly_game_logo.svgI just finished teaching from The Knockoff Economy in my Law and Technology Seminar.  The book, as I’m sure many of you know. describes thriving creative fields where copyrights and patents are either unavailable or play no meaningful role.  Examples include:  (1) fashion, (2) cooking; (3) team sports; (4) databases; (5) tattoos; (6) hairstyles; (7) fonts; and (8) magic tricks.

One industry that the book does does not discuss but that does fit this paradigm involves board games.  The rules of a board game are not copyrightable, and getting a patent on a game nowadays is almost impossible.  The name of game can be trademarked and aspects of the game’s appearance might qualify as trade dress, but that is all that the inventor or owner of the game can rely upon.

The board game business, though, seems to be doing just fine.  Entry barriers are low, of course, which helps explain why a relatively open system can work.  There must be something else to this though.  Why are classic games like Monopoly, Scrabble, Clue, and Risk able to survive?  In other words, why do brand names or trade dress seem so crucial for games?


Great Interview with Rod Serling Before Twilight Zone Aired

The video below is well worth the 21 minutes. Serling goes into sponsors as censors, consumerism, the potential for great television, and much more. He had experience with trying to engage race issues on T.V. and finding that his story was gutted. He talks about precensorship – themes writers avoid. He explains the way the system converges to make that so. There is a great story about Lassie having puppies and some crazy controversy about that being a sex show. Want associational harm? A line was cut about gas chambers from Judgment at Nuremberg because a sponsor that sold gas stoves for kitchens did not want that connection. As I recall another story was set in the British navy and so asked for tea. A sponsor sold coffee. The compromise. A tray of unspecified drinks was served.

Behold a man. Smart. Dedicated. Passionate. Turned to science fiction from drama. The reason? To avoid that place he created, The Twilight Zone.


Federal Circuit Split

We are doing a CLE event this week at my law school on the Supreme Court’s IP docket, and a question that I have after reviewing some of the major upcoming cases (most notably CLS Bank and Akamaiis why is there such a deep divide within the Federal Circuit on so many patent cases?  With respect to the Supreme Court or an ordinary circuit court, the answer can be traced back to the polarization of our politics.

I’m not sure, though, that this can explains the fractured state of the Federal Circuit.  I don’t think that there is a political valence to patent law (for example, Republicans want to read them broadly and Democrats want to read them narrowly, or vice versa).  Nor do I perceive a substantial difference among patents scholars that is comparable to the disagreement between, say. originalists and non-originalists in constitutional law.  But something must be behind the sharp exchanges that we see in some of the en banc Federal Circuit opinions.  I’d be curious if patent practitioners have any thoughts on this.


“What is Technology?”

I wanted to flag this new paper by my colleague Emily Morris.  Here is the Abstract:

Patent protection is limited to “technology,” but technology is so difficult to define that the Supreme Court has taken up the issue several times in the last several years. The Supreme Court’s recent decisions in Bilski, Prometheus, and Myriad have left patentable subject matter doctrine just as confused as ever, however. What is patentable technology?

The answer turns out to have nothing to do with the various pragmatic rationales that courts commonly cite. Rather, the patent system has defined patentable technology according to much simpler criteria – artifice and action. Artifice is the quality of being created by humans, not by nature. Action is the quality of behaving or operating in some active way. Together, artifice plus action explain and, perhaps more importantly, unify the law on patentable subject matter. By focusing on artifice plus action as the primary criteria defining patentable technology, the patent system can provide clearer guidelines than it has been able to achieve thus far.


WNET v. Aereo

This is an exceptionally busy year for Intellectual property cases at the Supreme Court, and I thought I would talk about one that is especially interesting.

Aereo is a service that lets people in New York City to watch broadcast TV for a monthly fee.  There is a brief delay (ten seconds) in the signal if you want to watch a show live. Or you can just record  programming through a DVR service provided by Aereo. Aereo does not pay the networks for this programming, and they claim that this violates the Copyright Act (17 U.S.C. Sec. 101(2))

The Act says that copyrighted content may not be transmitted “to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”

A divided Second Circuit panel held that Aereo’s transmissions do not violate the section just quoted. The pane’s rationale was that Aereo is transmitting content only to a particular homes, not to the public. Why? Because each subscriber is assigned a specific (albeit tiny) antenna at Aereo’s facility. Thus, each transmission is to a single person or family. Footnote 16 of the opinion explains:

“The methodology Congress proscribed for distinguishing between public and private transmissions is the size of the potential audience, and by that methodology, the feed from Aereo’s antennas is a private transmission because it results in a performance viewable by only one user.”

With respect, I think the Second Circuit got this wrong.  It seems to me the plain language of the statute does contemplate a situation where many individuals are getting transmissions of the same event “in separate places and at the same time or at different times.” And it seems odd to say, as Judge Chin notes in his dissent, that  if Aereo transmits the Super Bowl live this Sunday to a million people, that this is not a public performance–it’s a million private performances.

IP law often stumbles over the problem that what is permissible for one person to do (share a CD or forward a video) may be impermissible when it is done for hundreds of thousands.  The analogies just don’t make sense. And in this case, the Supreme Court should reverse and hold for the networks.


3D Printing Train Continues, Interview on TakePart Live tonight

I will be on TakePart Livetonight at 9 p.m. Pacific/11 Central/12 Eastern, to talk about 3D printing and all the fun it brings. I will be joined by a 3D printer entrepreneur who runs Deezmaker, a comic, and of course the hosts Jacob Soboroff and Cara Santa Maria. I was on the show last fall to talk about privacy and data hoarding. The hosts and crew are HuffPo veterans and a blast. The show is part of Pivot TV, which is available on DirectTV and Dish as well as some cable carriers. Looking forward to great night.