Allan Gabriel, Director of Dykema’s Intellectual Property Department, Speaks 3D Printing

We all know that the technology of 3D printing/additive manufacturing is changing the face of numerous industries, mostly for the better. Whether it’s creating new jobs, producing goods quicker and cheaper, or helping those who are less fortunate by way of medical implants and prosthetic devices, there is so much positive coming from these technologies. With that said, there are also numerous problems we are facing, and will continue to face as the technology progresses and expands its reach.

One major issue is that of intellectual property theft. I was able to speak with Allan Gabriel, the Director of Dykema’s Intellectual Property and Intellectual Property Litigation Department.  Gabriel, without a doubt, can be seen as an authority when it comes to intellectual property and the threats to it when dealing with emerging technologies. Below you will find my interview with Gabriel, and his insights into what could be one of the biggest threats of additive manufacturing:

Tell us a little about yourself and your background with IP and 3D Printing.

Allan Gabriel is the Director of Dykema’s Intellectual Property and Intellectual Property Litigation Department. Mr. Gabriel’s practice focuses on intellectual property litigation involving patent, trademark and copyright infringement, trade secrets, false advertising and right of publicity claims on trial court and appellate levels. As a follower of emerging IP issues driving lawsuits, Mr. Gabriel has addressed questions from clients regarding the protection of their trademark and patents in the 3-D space, including the availability of legal remedies to redress infringement claims.

At what point do you see intellectual property becoming a major issue within the 3D printing space?

It already has become a major issue. The ability to create objects through the 3-D printing technology implicates intellectual property rights at both ends of the spectrum of those rights. On the new intellectual property to create and protect side, there will be opportunities arising from new machines and equipment (printers and associated items) utilized in 3-D printing as there is a rush to invent devices and processes to service a growing market of not only industrial users, but also at-home consumers. There also will be original designs created for production through the 3-D printing process which themselves may be amenable to protection through various intellectual property laws. At the same time, arguable infringement could explode given the ubiquitous nature of 3-D printing, resembling in many ways that which arose from the ability of consumers of music to simply and easily download music, bypassing or avoiding the traditional protection of copyright laws.

What markets or industry may be harmed the most from IP theft via 3D printing?

Claims of infringement could explode given the ubiquitous nature of 3-D printing, resembling in many ways that which arose from the ability of consumers of music to simply and easily download music, bypassing or avoiding the traditional protection of copyright laws. As consumers at home make 3-D copies or replicas of household products, clothing, useful utensils, etc., many of these copies will be exposed to claims of infringement under copyright, trademark, and even patent laws. A range of intellectual property rights may be at risk in certain 3-D products. Toys or characters and artifact models may be covered by design patents, trademarks and copyrights. Model Boeing or airline 747 planes, Star Wars or Frozen figurines are examples. Further, 3-D printing can be used to repair goods as well as generate replacement parts.

What do you envision will be the solutions to preventing IP from being distributed online and then 3D printed?

There is a proposal for the extension to patents of the notice and takedown rules applicable to copyrighted material that inhibit the misuse of copyrights on you tube and other video sharing web sites by making available to patent holders a mechanism to have infringing files removed. Online sites that offer 3-D design and copying software could be subject to patent owners’ requests for removal of 3-D mechanisms used solely for demonstrably infringing purposes. From an infringement standpoint, as to existing items subject to 3-D printing, copyright laws may lead to a determination that someone who copies and distributes a 3-D printed copy of a copyrighted object may be liable for infringement.

How big of a problem will IP theft be within this space?

Gartner, Inc. a leading information technology research and advisory company, has predicted that 3-D printing will result in the loss of at least $100 billion per year in intellectual property by 2018. This disruption could be enormous as individuals in their own homes will be able to construct products outside the traditional acquisition of them from the existing chain of major suppliers. Additionally, the ability to avoid traditional suppliers will soon have real monetary value to home users. One study has suggested that home users will be able to save as much as $2,000 each year by making just two dozen simple things with a 3-D printer. A dramatic and negative impact upon the workforce could also be forthcoming given these anticipated scenarios.

Do you envision “The Netflix of Things” to eventually pop up?

Some companies which own intellectual property, such as Hasbro, Inc., are riding along with and trying to capitalize on this trend. Hasbro has entered into a partnership program with Shapeways, licensing its characters from My little Pony, which allows Shapeways customers to design their own 3-D My Little Pony products through patterns created with developers on the Shapeways website. Others may follow this model. There may be an “Amazon” of 3-D things in our future.

Will there be a way to prevent the majority of the 3D printing of stolen IP (Designs)?

While the protection of designs related to 3-D printing in certain circumstances is unclear or yet to be fully defined, utility patent or design patent protection may be available for certain useful articles created through 3-D printing. Copyright laws could protect certain ornamental design elements under the rubric of sculpture or visual art, although the useful article aspects of 3-D printing may not be protectable under the same copyright laws.

Certain simple items may result in the invention, through 3-D design and printing of new features to enhance or accompany them, which improvements could be subject to patent protection. For example, stationary objects used in medical or mechanical applications could become mobile or dramatically decreased in size through invention of parts through 3-D printing which allow them to move or be used for newer applications. A new miniature heart valve for use in infant surgery is achievable only through 3-D printing technology.

Any other interesting insights you’d like to add?

The threat to virtually every home user and consumer of exposure to potentially frivolous lawsuits is also of concern. Since there appear to be lawful uses of 3-D printers for personal purposes and related technologies and websites to facilitate and enhance those lawful uses, this concern must be addressed from both a legal and practical perspective to avoid what is now viewed as the mistake that the recording industry made when faced with the music copyright issue.

After reading Allan Gabriel’s insights, do you have any further thoughts? Let us know what you think in the Interview with Allan Gabriel forum thread at 3DPB.com.