Intellectual Property and Additive Manufacturing / 3D Printing: Strategies and Challenges of Applying Traditional IP Laws to a Transformative Technology

From lithium-ion batteries to human organs, the boundaries of additive manufacturing innovation are rapidly expanding. Traditionally reserved for industrial applications, additive manufacturing (also known as three-dimensional (“3D”) printing) is creeping into mainstream and consumer use. With larger scale adoption comes a significant increase in intellectual property (“IP”) disputes among those seeking to benefit from this transformative technology. To survive these inevitable clashes over valuable IP assets, rights holders need to understand the relevant, complex, and rapidly-evolving legal landscape, including its multiple opportunities and pitfalls. This Article reviews the advantages and limitations of legal strategies used to create, protect, attack, and defend stakeholders’ IP in this burgeoning field. Specifically, it examines the increasing difficulties faced in seeking protection under current patent laws and doctrines. It further explores how patent, trade secret, copyright, and other IP laws assist and challenge those seeking to prosper from additive manufacturing. © 2016 Bryan J. Vogel * Bryan J. Vogel is a trial lawyer and partner in the New York office of Robins Kaplan LLP. He is a registered patent attorney with a background in chemical engineering. He helps clients in litigation and arbitration and provides legal counsel in a broad range of industries, including 3D printing/additive manufacturing, life sciences, emerging technologies, polymer and chemical arts, telecommunications, software, consumer products, electronics, and media and entertainment. Mr. Vogel’s full bio can be found at http://www.robinskaplan.com/lawyers/bryan-vogel and he can be reached at [email protected] or 212.980.7400. 882 MINN. J.L. SCI. & TECH. [Vol. 17:2 I. The Utility and Challenge Of Patent Protection ................. 886 A. The “Inventive Concept” Requirement...................... 887 B. Lack of Prior Art ........................................................ 887 C. Inherency Doctrine .................................................... 888 D. Product-by-Process Inventions.................................. 889 E. Permissible Repair or Impermissible Reconstruction ......................................................... 891 F. Intent Requirement for Indirect Infringement Claims ...................................................................... 892 G. Novel Patent Strategies to Consider......................... 893 II. The Benefits and Limitations of Trade Secret Protection.. 896 III. The Pros and Cons of Copyright Protection ...................... 899 IV. Less Used Theories of Trademark and Trade Dress......... 903 V. Conclusion ............................................................................ 904