Product Design IP in the age of 3D Printers

Dieter Rams designed Coffee Maker

Intellectual property protection for industrial design and industrial designers has always been a fraught process. The nature IP does not lend itself easily to the tasks Industrial Designers might put to them. However, new technology might begin to change how Industrial Designers see Intellectual Property protection.

IP Limits

Conventionally, industrial design is protected through a design patent.  Design patents allows the designer to get protection on their purely ornamental design for 14 years from filing.  Unfortunately, this means that if the product has a functional component (enhanced ergonomics etc.) then the designer relinquishes that functionality, or they are forced to obtain the more expensive and time consuming utility patent. A utility patent covers the function of a device , process, compound or article of manufacturer. For example, a designer could hold a patent on the manufacture of a particular item. While this might successfully deter large scale copying, it does not prevent wide spread dissemination of the construction methods and processes.

Copyright protects artistic and literary works for 70 years, plus the life of the author. Text and audio-visual works are the primary focus of copyright. Once you move beyond the artistic realm into the functional, Courts have held that copyrights no longer apply.  However, the age of 3D printing might be about to change the rules of the game.

Charles Eames Design Patent 

3D Printing

For the uninitiated, a 3D printer is a device that builds an object, usually out of some resin, layers at a time. It is the electronic opposite of a very fine mandolin slicer. MakerBot, and companies like them are pioneering a way to have an "internet of things." The eventual goal would be a repository of templates for the production of all manner of goods, ready to be downloaded and printed, the way one might download a song and burn it to a CD [ed. do kids ever do that any more ?].

 The software used in 3D printers vary from device to device. However, they all use some form of stereolithography file to instruct the device on how to lay down layers of material. Once all the layers have been deposited, you should have a reasonable copy of object described by the file.

It should be apparent that 3D printing allows for the production of many useful things, it also allows for the re-production of industrial design elements without authorization from the original creators. Where 3D printing has created a problem, it might also offer a solution.

IP Incorporation into Designs



Since the procedures for manufacturing the item begins with a digital file. It is possible to encapsulate the design within the boundaries of Copyright law. If the software file, the instruction set for making a particular design is complete (that is, it does not require additional tooling, or minimal machining) then the software encapsulates the design.

It might still hold true that the tangible representation of the software (i.e. a chair or lamp) is not covered by copyright, the software code that executes the 3D printer is a valid piece of IP.  Therefore, the nexus of IP infringement of the design would occur when the digital file is copied (i.e. on a file share network). Thus, developing code for the 3D designs will become as important as the conceptual prototypes. Court are well positioned to hear arguments on the illicit trade and sale of pirated software. This presents an opportunity for Industrial designers and software coders to collaborate on clever implementations of the software to render the designs with minimal post processing. The closer the code is to representing the object, the stronger the case for infringement. Once the code base of a portfolio has been engineered, a simple licensing program [not in bitcoins!!!] (think Itunes) could offer people the world over the chance to download an use a particular firm's designs.

Alternatively, or additionally, a designer could include a structural trademark element. For instance, the design of a chair could,  incorporate a logo. In this instance, merely printing the object does not create a cause of action. However, once an unscrupulous manufacturer attempts to sell the copied design, they are engaged in trademark infringement.

There are likely more elegant solutions than these two for the potential problems posed by 3D printing. However, these solutions show that IP in 3D printing can be maintained and creators can be protected.

Jordan Garner

BitCoin and Licensing Fees

This post assumes you are aware of what BitCoin is and why someone might think it is a good idea to ask for payment of license agreements revenue in it. 

For those who don't know, Bitcoin is a peer-to-peer, anonymous digital currency.

Huh?

Exactly, the concept of Bitcons, how they are made, who has them, and what they are doing with them, are all beyond the scope of this post. I direct you to the Wikipedia site.

For the purposes of this discussion, all you need to know is that Bitcoins are a digital exchange medium. Think of it like an electronic commodity, cyber-gold, if you will. The goal is to have (by whom
?, why? Again, complicated) anonymous commercial transactions over the internet. This would free people from the prying eyes of repressive regimes, allow greater freedom of commerce internationally, and allow people to skip out on paying taxes.

You read (ha! all 2 of you) this blog for IP information, not Libertarian Economic Theory; so what's the point? Well, the point is that we are rapidly converging on a world in which small entities (single person firms, small skill based collectives) are all global companies. Each App creator, Web designer, even self-published author, has the ability to distribute and obtain revenue from a global audience.

One way in which small businesses can gain revenue is by licensing or otherwise monetizing their IP. The most common way this is done is by signing a contract that specifies a certain amount of money, either up front or on per - purchase - basis in exchange for access to the IP. While licensing your tech out for BitCoins in a up-front paid up license, is... a position; licensing your IP for a set number of Bit Coins in the future, or sales in made in Bit Coins, is not advisable.

"Why?", you howl, "I was about to license my tech, for anonymous tax-free Cyber-Space money!"
Well, the problem with anonymous tax free Cyber-Space Money is the chart below.

This chart shows the exchange rate of Bitcoin to US Dollar over a 1 week span. I think the reason not to use Bitcoin as the unit of value in your agreements is pretty obvious. If you had licensed your tech, for 1 BitCoin = 149.00 USD for use in certain Apps, and those apps went on sale on the 6th of April, then you would have made a bad call. (*note, Bitcoin has recovered some market value from the lows put forward, but the volatility remains.)

While initially each sale of your tech was netting you 150USD, by April 10th each sale was netting you 250.00. Huzzah. Then, April 11th rolls around. Devastation!  You are now netting 75USD per tech sale. This is a 50% reduction of your originally agreed upon license fee. Did you lose a war? Zombie Plague? Nope, just the random volatility of the commodities market.

The reason why you don't do this is the same reason why you don't license your IP for the "sale price value" of a Condo in Dubai in 2034. While there are arguments to be made for the upside, there are clearly reasons why such as speculative agreement is not the best way to maximize your IP value.

The way to maximize your IP value through licensing is to license your tech (or art, or published works) in the currency of a regime that places a strong value on IP rights, and a stable currency. Secondly, your agreements should be constructed to provide you with a fair market value of the IP, not speculative upside seeking. A stable license agreement for the duration of a copyright (Life + 75 years, i.e. see Jackson, Michael) is a great way to provide multi-generational economic stability.  Gambling that on an electronic currency is not the best use of your assets.

Jordan Garner