3D Printing and Patent Law: A Disruptive Technology Disrupting Patent Law?

Abstract

Concerns have been raised that the upsurge of 3D printing technology would disrupt the patent system. The central question the present paper aims to address is whether and to what extent the emergence of 3D printing technology indeed urges us to rethink patent law. The paper splits up this question by looking at two facets in more depth – patentability and infringement – through the lens of pertinent European and US law. In order to provide a better understanding on the reach of patentability and infringement theory and practice and their possible interpretation in a 3D printing context, a set of different scenarios is established covering the perspectives from rights holders (inventors/producers) and users (hobbyists/consumers). The paper concludes, first and foremost, that the wide uptake of 3D printing does not challenge the basic premises of patent law. As regards patentability, 3D printing does not upset patentability theory in general: it does not challenge prevailing concepts of patentable subject matter, nor current patentability requirements. On the other hand, digitized fabrication might well challenge the type/token dichotomy on which patent ontology is founded. As regards infringement, 3D printing does not really upset infringement theory either: it does not fundamentally alter the scope of rights, concepts or direct/indirect infringement assessment traditions. The paper further concludes that the emergence of 3D printing and the decentralization of production it entails, may lead to a wider and more dispersed scale of infringement, and does call into question the adequacy of current enforcement tools and strategies. A lack of adequate enforcement tools might well undermine the innovation incentive rationale dominating current patent law.