Asserting Patents to Combat Infringement via 3D Printing: It’s No “Use”

Three-dimensional ("3D") printing technology, which enables physical objects to be "printed" as easily as words can be printed on a page, is rapidly moving from industrial settings into consumers' homes. The advent of consumer grade 3D printers fundamentally alters the traditional allocation of manufacturing infrastructure and sales activity. No longer do manufacturers need to make, sell, and ship physical products in their physical states. Rather, consumers may download digital representations of products over the Internet for printing in the comfort their own homes.

For products sold in this fashion that are patented, this presents difficult hurdles to enforcement against infringers. Under existing law, the distributors of digital representations of products are not "making," "selling," or "using" the patented products or any "component" thereof. Absent proof of active inducement of infringement - i.e., at least willful blindness on the part of the distributors that their actions cause patent infringement - the distributors are not liable for the resulting infringement. While copyright law can help bridge the gap to the degree the products at issue are driven more by aesthetics than by functionality, a legislative solution appears necessary to give patentees recourse against such unauthorized distribution of their patented inventions.