Chapter 6 explores the doctrines of indirect (secondary) patent infringement in the United States, Europe, and Japan, focusing primarily on novel statutory interpretation issues brought about by 3D printing technology. Indirect infringement generally requires knowledge of the patent or some sort of intent to infringe. Because 3D printing technology will empower many legally unsophisticated actors to assist – even if unwittingly – others to infringe, virtually every jurisdiction will need to clarify how to measure knowledge or intent when numerous individuals or small businesses are involved. In Europe, courts will also need to decide the fundamental issue of whether the knowledge requirement implies a culpable mental state. Additional statutory interpretation issues include what constitutes a “component” under U.S. law and what constitutes “means, relating to an essential element of the invention” under many countries’ statutes. In Japan, courts or lawmakers will need to clarify whether a “product” includes 3D printable files. The chapter concludes by recommending that courts and lawmakers resolve interpretive issues in a manner that captures at least the most egregious actors, namely, those who repeatedly and knowingly facilitate infringement by distributing DMFs.

Chapter 10 takes a broader look at IP protection as an incentive to innovate. Patent protection gaps brought about by 3D printing technology must be viewed in conjunction with how the technology dramatically lowers the costs of innovation (and imitation) for 3D printable goods. Moreover, although patents serve as a primary incentive to innovate, they are not the only incentive. The chapter looks at other IP rights, contracts, and extra-legal appropriability mechanisms, as well as nonmonetary incentives to innovate, to determine how the IP regime should respond to 3D printing technology. I describe the need for a better empirical understanding of 3D printing’s effects on innovation incentives, but I argue that current evidence does not suggest a need for stronger IP incentives for 3D printable goods. Therefore, radical changes to patent law are not necessary even in the face of de facto weakened patents. In addition, because copyright protection is not needed as an extra incentive for utilitarian innovation, copyright law should not protect DMFs of primarily utilitarian objects.

Chapter 1 describes 3D printing technology’s capabilities and its limitations. It also explains the important concept of physitization, which is the term I use to describe the bidirectional path that 3D printing creates between physical and digital versions of objects. At the industrial level, 3D printing technology catalyzes new methodologies for product design, development, and production, and it lowers the cost and weight of an array of existing products. At the personal level, 3D printing technology democratizes design and manufacturing, opening doors to widespread product innovation, free and open source collaboration, and artistic creations. At both the industrial and individual levels, the technology dramatically lowers the costs of product design and commercialization and ushers in an era where a product’s complexity of shape is not a barrier to manufacturing.

They are lined up by the hundreds in the factory, working with steadfastness and precision. They do not take breaks, and yet they don’t get tired or make mistakes. They don’t complain about working conditions or bargain for higher pay. They don’t require much supervision – in fact, there is only one supervisor for the whole factory.

Chapter 8 focuses on a specific issue created by 3D printing technology: whether DMFs of purely (or primarily) utilitarian objects should receive copyright protection. Tangible objects dominated by utilitarian concerns do not receive copyright protection. Neither should the corresponding DMF, I argue. This novel argument has attracted criticism, but I defend it as a matter of doctrine and policy. Doctrinally, I argue that U.S. law excludes copyright protection not only for useful articles, but also for designs of (i.e., the shape of) useful articles, even if depicted in a two-dimensional drawing. Moreover, most jurisdictions around the world extend copyright protection only to works containing creativity, and I argue that DMFs of utilitarian objects contain no copyrightable creativity – they are exact, uncreative representations of the unprotected tangible objects. As a matter of policy, allowing copyright protection for DMFs of useful articles would cause copyright law, which is geared toward aesthetic works, to trespass on patent law, which is geared toward utilitarian works. In short, granting these DMFs copyright protection would inhibit the progress of utilitarian innovation.

Chapter 9 considers the role of design rights for DMFs. In it, I argue that DMFs should only receive design protection if the object they will print would receive such protection. Current practice in many jurisdictions is to the contrary. They protect any qualifying images if they appear on a computer screen. I argue that this approach impermissibly protects mere artistic images, which should be protected, if at all, by copyright law. I offer a framework for a teleological approach to design right in digital images and focus the approach on DMFs specifically. In addition, I describe how the EU Design Directive includes many important safeguards for free speech, experimentation, and private use. I recommend that the United States include similar protections in its design patent laws.