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3-D Printing Will Be a Counterfeiter's Best Friend

Why we need to rethink intellectual property for the era of additive manufacturing


A Dark Side to 3-D Printing?: As 3-D printing technology develops, it creates new opportunities for intellectual property (IP) pirates and counterfeiters, not to mention the makers of contraband goods.
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There's one downside to 3-D printing: it can do so much. Additive manufacturing (AM), as it's also known, has immense potential not only for streamlining industrial processes but also for producing objects that would be outright impossible to make with traditional methods. Nevertheless, that's precisely the problem: as the technology develops, it creates new opportunities for intellectual property (IP) pirates and counterfeiters, not to mention the makers of contraband goods like plastic firearms. The challenge for policy makers is to keep up with AM's new capabilities and to choose policies that protect our citizenry without compromising innovation.

For anyone with fundamental computer skills and the right equipment— hardware that is getting cheaper and more widely available every day—AM can be straightforward. You start by scanning, drawing or simply buying a computerized rendition of whatever it is that you intend to build. You then take that virtual model and tell your computer to slice it into digitized cross sections. Those data sets will be the instructions for turning your design into tangible reality. Load up your printer with the necessary raw material—be it plastic gel, metal powder or living cells—and then stand back while the machine does the job of accreting your desired object, layer upon layer upon layer, until the program ends and you have your components ready for assembly or a completed product.

Confronted by such technological leaps, legitimate businesses can only struggle to protect their rights. With a high-resolution laser scanner and a good enough AM system, a product counterfeiter could potentially replicate all sorts of luxury items. According to the International Chamber of Commerce, counterfeit goods currently account for between 5 and 7 percent of total world trade—in other words, an estimated $600 billion a year. And this is even as 3-D printing remains in its infancy.

Countermeasures are in development. One intriguing idea comes from researchers at Virginia Tech. They have suggested that counterfeiters could be thwarted by using AM to embed invisible but detectable nanomaterials as high-tech signatures in coveted goods. All the same, detecting counterfeits is likely to be a snap compared with stopping patent infringement. You can spend years establishing your exclusive right to an invention in the U.S., where the protection system dates back to the days of buggy whips and blacksmiths. In the process, you will have to publish instructions that would enable other individuals to duplicate your work—and when it's done, you should be prepared to devote significant legal resources to enforcing your claim. Meanwhile AM has swept away many of the obstacles that once deterred cheaters. For one thing, 3-D printing saves would-be copycats the time and expense they once needed in order to obtain molds for parts and to set up complicated assembly lines. Even if a court ultimately rules against the imitators, their manufacturing expenses will have been minimal.

Inventors and legitimate makers need better ways to stake out their IP. Patents, trademarks, service marks and copyrights can still be useful, to be sure, but sheer necessity has forced businesses to devise their own private defenses, using contractual agreements of all sorts—employment, noncompetition, nondisclosure, joint development, and every conceivable combination and permutation thereof. These arrangements often provide more effective safeguards at lower prices than legal registration—and in many cases, they are the only IP coverage an invention will have for many years of its life.

The U.S. Patent and Trademark Office might do well to reexamine its current procedures for protecting inventions. Especially in light of AM's new potential for disruption, there's certainly a case to be made for the "utility model," an alternative system that currently upholds IP rights across much of the industrialized world. Registration for a utility patent is much quicker and cheaper than in the U.S. because the utility model generally sets a lower bar for applicants and gives protection for a shorter period. The IP title is searched only if the claim is litigated. The utility model allows a qualified titleholder to file for conversion to traditional patent protection.

Can the utility model be adapted to fit the U.S.'s needs? It's an open question, but it's worth considering while the tools at the pirates' disposal grow ever more powerful.

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