DuetsBlog Collaborations in Creativity & the Law

The new infringement/opportunity frontier: Everything

Posted in Guest Bloggers, Infringement, Mixed Bag of Nuts, Patents, Technology

Jason Voiovich, Director of Corporate Marketing, Logic PD

Bottom Line: It won’t be long before cheap and ubiquitous 3D printing technology will present design patent owners with a choice: Seize the opportunity to license their designs to be created (and modified) at home, or resist patent infringement and litigate millions of potential offenders.  My advice?  Resistance is futile.

Our kitchen knives suck.

It’s not that they’ve always sucked, but you can’t expect a 10-year old set of KitchenAid private label knives to hold up to hundreds of dishwasher cycles without the love and attention of a sharpening stone.  Lesson learned.  It was finally time to visit Williams Sonoma for a set of big boy knives from Wusthof (along with a lesson in proper knife care).  $550 later we have a set of knives capable of trimming flank steak for Korean barbecue without trimming in a bit of Jason along with it.

Let’s go on a brief journey into the not-to-distant future for a different sort of experience.

It’s 2016.  I still head off to Williams Sonoma to try out the knives, but I don’t leave with them.  Instead, I purchase the digital 3-Dimensional artwork file for each knife I want in my collection along with the file for a customized countertop storage block.  On my way home, I stop at Target for a refill on the resins and raw materials I’ll need for my at-home 3-Dimensional printer.  (Last week, Target ran a special on a popular printer model for $99.  I couldn’t resist.)  Looking at the material prices, I fume a bit.  Just like 2012, they get you on the inputs.  Then, it was ink.  Now, it’s resin.

At home, I upload the design files to my printer and make a few “adjustments”.  My wife has entered a “pink” phase and would love all of the knife handles to match the new oven knobs we printed earlier in the day.  Grudgingly, I select the appropriate Pantone® pink for the handles and hit “print”.  It takes about 90 minutes to print all of the knives and the storage block.  The knives are a hit with the misses, but the block color doesn’t match.  No matter.  Our new printer can recycle the material, recolor it, and reprint it in the space of 15 minutes.

Sound far-fetched?

It isn’t.  This new world will be here faster than you might think.

In the early 2000s, I had the opportunity to do some marketing work for a local firm that was doing something amazing.  Prior to that time, if you wanted a 3-D printer, it cost $250,000 and filled a small room.  It used an “additive” process of laying down successive layers of melted plastic resin to “build” solid models.  It was complex, smelly, and reasonably difficult to use.  The parts didn’t hold up well, and they looked pretty bad, but it was a great way for industrial designers to get a feel for a design before expensive tooling was created.

This company created the same thing (I would say a better thing) for $25,000.

The result was startling.  Instead of Fortune 1000 buyers and specialist prototype houses, lots of companies could afford one.  Just like the big guys, they could prototype their designs quickly and successfully.  The printer was an obvious success.

Fast forward to 2012.  I just ordered a new 3-D printer for R&D projects.  And no, I didn’t need a purchase requisition.  It wasn’t even a big decision, really.  It fit comfortably on a credit card.  It was the $2,000 MakerBot Replicator 2.  And it’s very, very easy to use.

You may have heard about it in “Time” magazine , or if you’re a bit techy, on “Wired”.

A lot of folks are convinced these things will change the world.  Count me among them.  Sure, not just yet.  $2,500 is a bit much for the average home.  What’s more, the software to create “things” isn’t very easy to use by the average person, and the parts you get out of it don’t match the quality and finish of mass-produced items.  All true.  But both my kids took middle school classes on product design and 3-D rendering in the Mounds View School District.  Yeah.  Middle school.  To them, designing “things” is as natural as writing papers or taking photos.  To them, it’s just software.  To them, the quality of the parts will get better.

Consider the next order of magnitude in price reduction.  What if you could buy a 3-D printer for $250.  Would you?  I’ll bet you would.

This gets me to the point of this little trip into the future for all of us in the business of creating and protecting intellectual property.

What if I can scan that knife I wanted to buy at my friend’s house and print a copy of it at home?  What about printing a replacement for a cracked cabinet door handle?  What about upgrading the review mirror in my car?  What does that mean for the owners of the intellectual property – the design patents – whose designs I am copying?  Is it fair use?  But what if I sell my printed copy?  Or just give it away?  Am I infringing?  What if the design fails and the part breaks?  Can I sue?  Can they sue me?

Frankly, today, there are more questions than answers.  But if the recording and film industries have taught us anything, it is that resisting this transition is futile at best, destructive at worst.

The futuristic example I shared earlier illustrates a different path forward.  Instead of resisting change, embrace it.  Instead of selling physical items, why not sell the electronic files to replicate the item at home?  Why not allow people to make minor adjustments (like the color of the knife handle) to suit their tastes?  I’ll bet people would pay more for the privilege.  Would they pay as much as they would for the finished item today?  No.  But then again, Williams Sonoma in my example didn’t need to carry inventory that might not sell.  Wusthof didn’t need to ship it, insure it, package it, or fabricate it.  Those things cost money, and by nature of economies of scale, limit customer choice.

There is a better way, but it will take creativity from the legal community to structure licenses in such a way to allow whole new business models to emerge.  It’s offensive versus defensive.  It’s protection through openness.  It’s different.  Scary.  And very, very cool.

But it’s coming.  It makes sense to be ready.