Can New 3D Printing Patents Be Challenged? EFF Says Yes.
Earlier this month, we reported that a 3D printing patent had been issued to create a DRM-like layer around printable goods. This is just one of many patents that will be prosecuted around the emerging 3D printing revolution. Ironically, however, the technology itself is 30 years old and may be subject to “prior art” that invalidates any recently filed patents.
This is the hope of the Electronic Frontier Foundation, a donor-supported organization that works to protect fundamental rights regardless of technology. Here is an excerpt from EFF’s blog.
Thanks to the open hardware community, you can now have a 3D printer in your home for just a few hundred dollars, with dozens of printer models to choose from and build upon. Community-designed printers already outclass proprietary printers costing 30 times as much. This incredible innovation is possible because the core patents covering 3D printing technologies started expiring several years ago, allowing projects such as RepRap to prove what we already knew—that openness often outperforms the patent system at spurring innovation.
Open hardware printers have been used for rapid prototyping of new inventions, to print replacement parts for household objects and appliances, by DIY scientists to turn a power drill into a centrifuge, for a game in which you can engineer your own pieces, and for thousands of other purposes by makers of all stripes. Projects like MakerBot and Solidoodle have made 3D printers accessible on a plug-and-play basis, so you don’t even need a soldering iron to start manufacturing objects you designed or downloaded from the internet. As additional patents expire, the open hardware community will be able to unleash its creative spirit on new technologies, technologies that have already been used to design custom prosthetics, guitars, shoes, and more. The possibilities are limitless.
While many core patents restricting 3D printing have expired or will soon expire, there is a risk that “creative” patent drafting will continue to lock up ideas beyond the 20-year terms of those initial patents or that patents will restrict further advances made by the open hardware community. The incremental nature of innovation in 3D printing makes it particularly unsuitable for patenting, as history has shown.
We’ve said before that the America Invents Act failed to address many of the patent system’s worst problems. Despite that, it does include at least one provision we think could be helpful: the newly implemented Preissuance Submission procedure. That procedure allows third parties to participate in the patent application process by creating a vehicle to provide patent examiners with prior art. We’re glad to see the Patent Office open up the process to those who might not be filing patents themselves, but who are affected by the patent system everyday. We’re also glad that this new process may help stem the tide of improvidently-granted patents.
EFF and the Cyberlaw Clinic at Harvard’s Berkman Center for Internet and Society are working together to use this new process to challenge patent applications that particularly threaten growing 3D printing technologies. As a first step, we are evaluating 3D printing patent applications currently pending before the Patent Office to identify potential target applications.We need your help! If you know of any applications covering 3D printing technology that you think should be challenged, please let us know by emailing 3Dprinting@eff.org (and also point us to any relevant prior art you might know about).
To get involved with the search, go to the USPTO’s application search tool, PAIR, and/or Google Patents. Each of these sources contains valuable details about the applications currently pending before the USPTO. Here’s the thing: under the current rules, a patent application may only be challenged by a Preissuance Submission within six months of its publication (or before the date of the first rejection, if that comes later). This means the clock is already ticking on the current crop of patent applications.
Once target applications are identified, we will seek out relevant prior art. We’ll be asking for your help again then, so please watch this space. Any document that was publicly available before an application was filed is considered prior art; this can include emails to public lists, websites, and even doctoral theses. Because of the time limit, once we identify the target applications, we must complete the prior art search quickly.
We’re glad there’s a new way to to challenge dangerous patent applications before they become dangerous patents. But the America Invents Act and the search capabilities of the Patent Office’s website won’t make this job easy. We need your help to get this done, so please do what you can to help protect the 3D printing community from overbroad patents that can threaten exciting innovation.
Horizon photo by Norma Desmond used under Creative Commons license.