Digital Patent Infringement in an Era of 3D Printing

The digital revolution has now moved beyond music and video files. A person can now translate three-dimensional objects into digital files and, at the press of a button, recreate those items via a 3D printer or similar device. Just as digitization placed pressure on the copyright system, so will these digital computer-aided design (CAD) files stress the patent system. Patents directed to physical objects can now have their value appropriated — not by the transfer of physical embodiments — but by the making, selling, and transferring of CAD files designed to print the invention. We term this phenomenon digital patent infringement. We explore the ways the patent system can respond to protect patent owners against the appropriation of their inventions via these digital files. First, we explore whether indirect infringement doctrines sufficiently protect patent holders against these CAD files. Given the nature of likely accused indirect infringers, we conclude, contrary to earlier literature, that these doctrines likely are not up to the task. Second, we offer novel theories of direct “digital” patent infringement based on the CAD files alone. We consider whether offers to sell and sales of these files should constitute direct patent infringement. Because such commercial activity is an appropriation of the economic value of the patented invention, we believe the law should recognize such an infringement theory. Next, rejecting the prior assumptions of the literature, we provocatively explore whether the CAD files alone should be viewed as infringement for making the patented device, given the de minimis effort it takes to create the item via a 3D printer or related device. As a technological matter, the line between digital and tangible has eroded to the point where one could view these files as infringement. As a legal and policy matter, however, such expansion of patent infringement liability could have significant chilling effects on other actors and incentives, giving us pause in extending liability in this context.