Journal of Intellectual Property Rights

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Protection of Patent Rights in the Age of 3D Printing


Affiliations
1 Faculty of Law, University of Nigeria Nsukka, Enugu 400241, Enugu, Nigeria
 

3D Printing is a disruptive technology that has come to alter traditional supply chains by changing the process flow for the making of tangible goods. 3D printing has bridged both the gap between the tangible and the intangible and that between the producer and consumer, creating a new class of ‘consumers’. With 3D printing has come great ease in infringing patent rights. It has also led to a change in manufacturing and supply chains and therefore disrupted the rules governing placement of liability. This work attempts to identify the specific effects of 3D printing on supply chains and ease of infringement, with a view to proffering ways in which the interests of innovators and consumers can be protected. It finds that since 3D printing has eroded the line between the tangible and the intangible, it is necessary to depart from the old legal tradition of hinging patent infringement liability on tangibility. There should at least be infringement liability for certain acts such as selling and offering to sell, done in relation to CAD files from which patented products are printed.

Keywords

3D Printing, Supply Chain, Infringement, Patent Rights, Legal Protection, CAD, Active Inducement, Contributory Infringement, Digital Patent Infringement
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  • Section 1 of the Patents and Designs Act (PDA) Cap P2 LFN 2010.

  • Section 7 of the Patents and Designs Act (PDA) Cap P2 LFN 2010.

  • Section 6 of the Patents and Designs Act (PDA) Cap P2 LFN 2010.

  • 3DPRINTING.COM, What is 3D Printing? https://3dprinting.com/what-is-3d-printing/ (accessed on 6 December 2019).

  • Study.Com, Traditional v Digital Supply Chain Processes, https://study.com/academy/lesson/traditional-vs-digitalsupply- chain-processes.html (accessed on 6 December 2019).

  • BITSIGHT, ‘What is Digital Supply Chain Management? https://www.bitsight.com/blog/what-is-digital-supply-chainmanagement, (accessed on 6 December 2019).

  • Ryan M J et al., 3D Printing the future: Scenarios for supply chains reviewed, International Journal of Physical Distribution and Logistics Management, 47 (10) (2017) 992 – 1014, 994.

  • Engineer to order is a type of manufacturing process in which a product is designed, engineered and finished after an order has been received. The product is engineered to meet the specifications desired by the received order. The representatives of the customer company engage with the manufacturing team throughout the process to ensure that each and every specification is met. The engineer to order process is used for very complex products or very specialized products. mbaskool.com, ‘Engineer-to-Order’, https://www.mbaskool.com/business-concepts/operationslogistics- supply-chain-terms/15193-engineer-to-order.html, (accessed on 13 November 2019).

  • This is usually used when there is no desire to keep inventory and might embody make-to-order where it involves customization.

  • Make to order (MTO), or made to order, is a business production strategy that typically allows consumers to purchase products that are customized to their specifications. It is a manufacturing process in which the production of an item begins only after a confirmed customer order is received. It is also known asmass customization. Hayes A, Make to Order (MTO), Investopedia https://www.investopedia.com/ terms/m/make-to-order.asp (accessed on 13 November 2019).

  • Assemble to order (ATO) is a business production strategy where products ordered by customers are produced quickly and are customizable to a certain extent. The assemble-toorder (ATO) strategy requires that the basic parts of the product are already manufactured but not yet assembled. Once an order is received, the parts are assembled quickly and sent to the customer. Kenton W, Assemble to Order (ATO), Investopedia, https://www.investopedia.com/terms/a/ assemble-to-order.asp (accessed on 13 November 2019).

  • Make to stock (MTS) is a traditional production strategy that is used by businesses to match the inventory with anticipated consumer demand. Instead of setting a production level and then attempting to sell goods, a company using MTS would estimate how many orders its products could generate, and then supply enough stock to meet those orders. Segal T, Make to Stock – MTS Definition, Investopedia https://www.investopedia.com/terms/m/make-to-stock.asp (accessed on 13 November 2019).

  • Customisation is reserved until the final point of distribution onwards.

  • Ryan M J et al., 3D Printing the future: Scenarios for supply chains reviewed, International Journal of Physical Distribution and Logistics Management, 47 (10) (2017) 1002 – 1006.

  • Ryan M J et al., 3D Printing the future: Scenarios for supply chains reviewed, International Journal of Physical Distribution and Logistics Management, 47 (10) (2017) 996.

  • Patents Act 1952, Sections 271(a) and (b).

  • Holbrook T R & Osborn L S, Digital patent infringement in an era of 3D printing, US Davis Law Review, 48 (2015) 1319 – 85, 1332 – 33.

  • Holbrook T R & Osborn L S, Digital patent infringement in an era of 3D printing, US Davis Law Review, 48 (2015) 1341 – 43.

  • Holbrook T R & Osborn L S, Digital patent infringement in an era of 3D printing, US Davis Law Review, 48 (2015)1339.

  • Holbrook T R & Osborn L S, Digital patent infringement in an era of 3D printing, US Davis Law Review, 48 (2015) 1340 – 41.

  • Re Seagate Tech., LLC, 497 F.3d 1360, 1371 (Fed. CIR. 2007) (en banc).

  • Holbrook T R & Osborn L S, Digital patent infringement in an era of 3D printing, US Davis Law Review, 48 (2015) 1342 – 43.

  • Holbrook T R & Osborn L S, Digital patent infringement in an era of 3D printing, US Davis Law Review, 48 (2015) 1343 – 44.

  • Patent Act 1952, Section 271(c).

  • Holbrook T R & Osborn L S, Digital patent infringement in an era of 3D printing, US Davis Law Review, 48 (2015) 1353.

  • Section 17 U.S.C s.101 (2012); MAI v. Peak 991F.2d 511, 519 (9th Cir. 1993).

  • Holbrook T R & Osborn L S, Digital patent infringement in an era of 3D printing, US Davis Law Review, 48 (2015) 1385.

  • Holbrook T R & Osborn L S, Digital patent infringement in an era of 3D printing, US Davis Law Review, 48 (2015) 1354.

  • 617 F.3d 1296.

  • Deepwater Drilling Inc. v Maersk Contractors USA Inc, 617 F.3d 1309.

  • The Court quoted 3D Sys Inc. v Aarotech LabsInc. 160 F.3d 1373, 1379 (Fed. Cir.1998).

  • Transocean Offshore Deepwater Drilling Inc. v Maersk Contractors USA Inc. (617 F.3d 1296 at 1311).

  • 35 U.S.C. § 102(b) (2006). A similar provision is contained in Section 6(3)(b) of PDA applicable in Nigeria.

  • Pfaff, 525 U.S. at 68.

  • Holbrook T R & Osborn L S, Digital patent infringement in an era of 3D printing, US Davis Law Review, 48 (2015) 1363 – 64.

  • 745 F.2d 11 (Fed. Cir. 1984).

  • Holbrook T R & Osborn L S, Digital patent infringement in an era of 3D printing, US Davis Law Review, 48 (2015) 1365 – 67.

  • Festo Corp. v Shoketsu Kinzoku Kogyo Kabushiki Co. 535 U.S. 722, 732 (2002).

  • Holbrook T R & Osborn L S, Digital patent infringement in an era of 3D printing, US Davis Law Review, 48 (2015) 1368 – 69.

  • Holbrook T R & Osborn L S, Digital patent infringement in an era of 3D printing, US Davis Law Review, 48 (2015) 1370 – 72.

  • Holbrook T R & Osborn L S, Digital patent infringement in an era of 3D printing, US Davis Law Review, 48 (2015) 1373 – 77.

  • Holbrook T R & Osborn L S, Digital patent infringement in an era of 3D printing, US Davis Law Review, 48 (2015) 1377 – 78.

  • Holbrook T R & Osborn L S, Digital patent infringement in an era of 3D printing, US Davis Law Review, 48 (2015) 1383 – 84.

  • Holbrook T R & Osborn L S, Digital patent infringement in an era of 3D printing, US Davis Law Review, 48 (2015) 1381 – 83.


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  • Protection of Patent Rights in the Age of 3D Printing

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Authors

Obiefuna Obinne
Faculty of Law, University of Nigeria Nsukka, Enugu 400241, Enugu, Nigeria
Nwosu Edith
Faculty of Law, University of Nigeria Nsukka, Enugu 400241, Enugu, Nigeria
Mukoro Benjamin
Faculty of Law, University of Nigeria Nsukka, Enugu 400241, Enugu, Nigeria
Nwafor Ndubuisi
Faculty of Law, University of Nigeria Nsukka, Enugu 400241, Enugu, Nigeria
Richards Newman
Faculty of Law, University of Nigeria Nsukka, Enugu 400241, Enugu, Nigeria
Amucheazi Chibike Oraeto
Faculty of Law, University of Nigeria Nsukka, Enugu 400241, Enugu, Nigeria
Chime Ikechukwu Pius
Faculty of Law, University of Nigeria Nsukka, Enugu 400241, Enugu, Nigeria

Abstract


3D Printing is a disruptive technology that has come to alter traditional supply chains by changing the process flow for the making of tangible goods. 3D printing has bridged both the gap between the tangible and the intangible and that between the producer and consumer, creating a new class of ‘consumers’. With 3D printing has come great ease in infringing patent rights. It has also led to a change in manufacturing and supply chains and therefore disrupted the rules governing placement of liability. This work attempts to identify the specific effects of 3D printing on supply chains and ease of infringement, with a view to proffering ways in which the interests of innovators and consumers can be protected. It finds that since 3D printing has eroded the line between the tangible and the intangible, it is necessary to depart from the old legal tradition of hinging patent infringement liability on tangibility. There should at least be infringement liability for certain acts such as selling and offering to sell, done in relation to CAD files from which patented products are printed.

Keywords


3D Printing, Supply Chain, Infringement, Patent Rights, Legal Protection, CAD, Active Inducement, Contributory Infringement, Digital Patent Infringement

References