Patents and 3D Printing… some thoughts

If you go to the Timeline on the official Microsoft website, you’ll see a jarring quote:

1899: “Everything that can be invented has been invented.” – Charles H. Duell, Commissioner of U.S. Patents, urging President Mckinley to abolish his office.

By 1899 it had been over a hundred years since the first U.S. patent was issued, and the quote suggests that Duell wasn’t happy with the quality of the patents his office was seeing. The truth is, despite being oft-repeated, Duell never actually said those words. In fact, he seemed proud of the increase in the number of patents his office had overseen.

Just as in 1899, the problem today isn’t that there’s nothing left to invent – it’s that there’s so much being claimed to be invented that it becomes challenging to filter through the noise.

As a general rule, patents provide monopoly rights to inventors who create something that is new, useful and not obvious. Last week Electronic Frontier Foundation announced that they were teaming up with Ask Patents in their efforts to help U.S. patent examiners locate prior art in order to demonstrate that certain new 3D printing patents are not actually novel or non-obvious inventions. EFF and Ask Patents are trying to challenge patent applications through “preissuance submissions” to the US Patent and Trademark Office, identifying prior patents or non-patent literature which they think is relevant to the patent application. I can’t comment on their method of selecting the patents they are challenging (2 of the 3 they’re targeting are Stratasys patents), but the idea of submitting prior art to the USPTO seems great to me.

Once a patent is issued, it becomes a potentially powerful tool for exercising monopoly rights over a claimed invention. Given that some people say the wealth of human knowledge increases on a logarithmic scale, and that it doubled just between 2008 and 2010, these kinds of crowd-sourced public services may become more necessary. The USPTO has continued to increase its number of patent examiners, but it can’t keep up with the sheer amount of information being published and disseminated.

That’s why, despite the fact that I’m ostensibly “pro-patent” and I completely support the right of Stratasys to patent innovations in 3D printing (I believe in patent reform, and certainly not abolition of patents), I also see the value of the Electronic Frontier Foundation’s efforts to submit prior art to the USPTO and assist in patent examinations.  Because the real problem isn’t patents on inventions – it is filtering real inventions from spurious patents. If the Stratasys patents are useful, novel and non-obvious inventions (by patent law standards), they’ll have no issue with any prior art that EFF and Ask Patents unearth. If they’re not, then a public service has been done, possibly avoiding much costlier litigation down the line for everyone (including the patentee). (Though, I admit, I’m assuming here that this relatively new preissuance submission system is balanced and will work well. If it simply results in costlier  and/or lengthier patent prosecution for inventors, that would obviously be a bad thing.)

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