Market economies are based on free competition, which can include copying. Yet intellectual prope... more Market economies are based on free competition, which can include copying. Yet intellectual property protection in the United States prohibits copying in certain circumstances to incentivize innovation and creativity. New breeds of digital works are challenging our historical application of intellectual property law. These include certain categories of software programs as well as digital manufacturing files. These new works look deceptively like works from a previous era and thus, courts might languorously treat them as they have older works. This would be a mistake. This Article analyzes these works in terms of existing intellectual property doctrine and constructs a normative framework for channeling the works among the different intellectual property regimes and, in some cases, away from intellectual property protection altogether.
As the distinction between the digital and physical worlds continues to diminish, the necessity t... more As the distinction between the digital and physical worlds continues to diminish, the necessity to reevaluate the bargain struck by the copyright regime increases in importance. Digitization brings increasingly more aspects of our world into the potential ambit of the copyright system. To understand whether and how the copyright system should apply in an increasingly digital world, it is first necessary to understand doctrinally how current copyright laws apply to new digital works. This Article corrects several errors that have appeared in the literature analyzing copyright law’s treatment of 3D printing and other digital manufacturing files. This Article incorporates an advanced technical understanding of digital manufacturing files and applies that understanding to copyright doctrine to clarify misunderstandings. The analysis briefly confirms that digital files created to manufacture creative objects are themselves clearly protected by copyright. On the other hand, and contrary to several assertions in the literature, most files created to manufacture purely utilitarian objects are not copyrightable because they lack a modicum of creativity. The lack of copyright protection for these files calls into question a number of assumptions, including whether they can be protected against even verbatim copying and whether open-source licenses involving these files can efficaciously bind downstream users. If digital manufacturing files of purely utilitarian objects do not enjoy copyright protection, creators may seek to embed additional, ancillary copyrightable material in the files to secure protection. This ancillary material serves as a lock-out code, which tries to prevent what would otherwise be lawful copying. This Article analyzes that phenomenon and discusses potential ways the law may react to it.
Increasingly, trademark litigation involves the use of trademarks in digital environments. Someti... more Increasingly, trademark litigation involves the use of trademarks in digital environments. Sometimes it involves the sale of digital models of tangible objects such as cars and handbags to be used in video games or films. With the growth of 3D printing, digital version of objects will not be limited to media products, because 3D printing technology radically separates the design and production processes.
That separation has potentially destabilizing consequences for trademark law, which has overwhelmingly been oriented toward indications of the origin of physical goods. For one thing, digitization brings much more of trademark law into contact with the Supreme Court's decision in Dastar Corp. v. Twentieth Century Fox Film Corp., raising difficult questions about whether, and under what circumstances, digital files count as “goods” for Lanham Act purposes. More broadly, a world of increasing digitization implicates important concerns about the boundaries of trademark law vis-`a-vis other areas of IP law, and it raises profound questions about the meaning of source indication and the role of trademark law in the digital world.
We argue that the question of whether we should treat digital files as relevant goods is irreducibly one of policy, and it should not be reduced to mere formalism. Digital files should be treated as goods only when consumers’ interactions with the files sufficiently resemble their interactions with physical goods that they warrant the same treatment.
In particular, we argue that digital files should be treated as goods only when the origin of the files as such (not the content of those files) is material to consumers. That, we argue, may turn out to be relatively rare. Indeed, we suggest that a world of greater digitization might well be a world in which trademark law has less relevance relative to design patent and copyright.
The articles in this issue look at how the development and use of free and open source hardware (... more The articles in this issue look at how the development and use of free and open source hardware (FOSH or simply “open hardware”) are changing the face of science, engineering, business, and law.
Free and open source software (FOSS) has proven very successful and now dominates the development of software on a global scale. It is available in source code (open source) and can be used, studied, copied, modified, and redistributed either without restriction or with restrictions only to ensure that further recipients have the same open source rights. Similarly, FOSH provides the “code” for hardware—including the bill of materials, schematics, instructions, computer-aided designs, and other information needed to recreate a physical artifact. Use of FOSH can improve product innovation in a wide range of fields. In this issue authors from a variety of disciplines and work environments discuss how this open model of innovation will drive the future of engineering. First, Alicia Gibb, founder and executive director of the Open Source Hardware Association (OSHWA) and director of the ATLAS1 Blow Things Up (BTU) Lab at the University of Colorado Boulder, argues that hardware is the next step to open sourcing everything. She touches on intellectual property (IP) issues, cites the benefits of open source hardware, introduces and explains the role of OSHWA, and hints at the future of open hardware.
The open source paradigm is already making deep inroads in the hardware space in 3D printing. With the development of the open source RepRap project (a 3D printer that can print itself) the cost of 3D printers has dropped to a point where nearly anyone can afford one for rapid prototyping and small batch manufacturing.
Ben Malouf and Harris Kenny of Aleph Objects describe their company’s approach to the use of open hardware in every aspect of their business to create the popular Lulzbot 3D printer. Their primary product is open—and consistently wins one of the top spots in Make: Magazine’s annual 3D printer shootout, ahead of proprietary 3D printers from much larger companies with far greater resources. Lulzbot printers, and those of many other manufacturers, are rapidly increasing in sales as the number of free and open source 3D printable designs erupts on the Web, making distributed manufacturing a reality.
In this context, law professor Lucas Osborn at the Campbell University School of Law takes us on a deep dive into how IP law will need to change in this new 3D printing era. After summarizing the basics of IP law and explaining why it was created, he discusses how it could both benefit and hinder 3D printing technology. His arguments will challenge readers independent of their views on patent law. For those with conventional IP leanings, he shows how IP law can hinder innovation. For those born in the Internet age, where sharing is second nature and little thought is given to licenses as long as the code is posted on Github, he offers some important lessons. He ends with a challenge for engineers to make more of an effort in helping form IP law that will benefit innovation. If these lessons on IP and open hardware replication with 3D printers are turned to experimental research in science and engineering, there is an important opportunity to radically reduce the costs of experimental research while improving it. In the next article I argue that by harnessing a scalable open source method, federal funding is spent just once for the development of scientific equipment and then a return on this investment (ROI) is realized by digital replication of scientific devices for only the costs of materials. With numerous examples I show that the ROI climbs into the thousands of percent while accelerating any research that the open paradigm touches. To harness this opportunity, I propose four straightforward and negative-net-cost policies to support FOSH development and improve access to scientific tools in the United States. The policies will directly save millions in research and STEM education expenditures, while providing researchers and students access to better equipment, which will promote advances in technology and concomitant benefits for the American economy.
Thinking about the future and the changes needed to support this development in STEM education, AnnMarie Thomas and Deb Besser of the St. Thomas School of Engineering consider how engineers and engineering educators can use maker methods to introduce students to engineering and build their technological literacy. They show that the maker movement is closely tied to open hardware and sharing as well as the traits of successful engineers. Makerspaces and fabrication (fab) labs (what Gibb calls hackerspaces) are physical hubs of the maker culture. Although these trends are clearly important for the United States, this cultural change and open hardware ethos can have dramatic impacts in the developing world. Matthew Rogge, Melissa Menke, and William Hoyle of TechforTrade explain the potential for open source and 3D printing to produce many needed items in low-resource settings, where lack of infrastructure makes local production impractical and high tariffs, unreliable supply chains, and economic instability make importation costly. Saving 90 percent on medical or scientific tools is nice in my lab, for instance, but it literally saves lives in a developing world context. The issue concludes with an op-ed by Tom Callaway, a senior software engineer at Red Hat, Inc., an open source software company with revenue over $2 billion last year (up 15 percent year over year). What makes this business accomplishment so impressive is that all of the company’s software products are available for free. Although old ways of thinking demand that companies secure a monopoly and certainly not give away “intellectual property” for free, Red Hat’s success comes from offering its customers support, collaboration, control, and a high-quality product. Tom argues that the proven open source software mentality is porting to hardware, opening up incredible opportunities for humanity. He concludes, “open source and open innovation work…. They also empower society and make it possible to push the limits of what is possible. When the barriers to collaboration are lifted, people can accomplish incredible things.”
As all of the articles show, open source tools in the hands of this and future generations of engineers will be incredible indeed.
This Article provocatively asserts that lawmakers should weaken patents significantly—by between ... more This Article provocatively asserts that lawmakers should weaken patents significantly—by between 25% and 50%. The primary impetus for this conclusion is the underappreciated effects of new and emerging technologies, including three-dimensional printing, synthetic biology, and cloud computing. These and other technologies are rapidly decreasing the costs of each stage of the innovation cycle: from basic research, through inventing and prototyping, to marketing and distribution. The primary economic theories supporting patent law hold that inventors and innovators need patents to recoup the costs associated with research, inventing, and commercializing. Because new technologies have begun—and will continue—to dramatically decrease these costs, the case for weakening patents is ripe for analysis.
The digital revolution has now moved beyond music and video files. A person can now translate thr... more 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.
Three-dimensional printing is invading society, bringing with it the ability to “print” objects (... more Three-dimensional printing is invading society, bringing with it the ability to “print” objects (atoms) from computer files (bits). Posting a computer CAD file of an object (an illegal gun or an infringing shoe) to the internet essentially makes the physical object available to the world. The technology portends dramatic shifts in manufacturing, trade, medicine, and more, and will require a legal regime that integrates the legal concepts governing the digital and physical worlds.
This Article represents the first broad descriptive and normative study of this technology and its multivalent effects on law. The Article separates truly novel legal issues raised by 3D printing from issues for which the current regulatory regime is well designed. After identifying novel legal issues, the Article builds on a rich literature set of regulatory and compliance literature to construct an integrated regulatory regime to govern 3D printing. It then applies this regime to the world of 3D printing, describes the political economy of 3D printing technology, and discusses specific regulatory challenges brought about by the digitization of physical goods. As a guiding theme, this Article argues that the nascent but promising state of 3D printing technology necessitates a flexible and iterative regulatory response.
The confluence of three-dimensional printing, three-dimensional scanning, and the Internet will e... more The confluence of three-dimensional printing, three-dimensional scanning, and the Internet will erode the dividing line between the physical and the digital worlds and will bring millions of laypeople into intimate contact with the full spectrum of intellectual property laws. One of the areas most affected by 3D printers will be three-dimensional art. This Article analyzes several ways in which 3D printing technology will affect the creation, delivery, and consumption of art. Not only does 3D printing offer great promise for creative works, but it also presents a problem of piracy that may accompany the digitization of three-dimensional works. As 3D printing technology’s relationship to intellectual property law is largely unexplored, this Article explores foundational issues regarding how copyright law applies to 3D printing technology, laying the groundwork upon which further analysis of 3D printing’s effects on copyright law may be built.
Gone are the days when the term “offer” is confined to first-year contracts courses and the intri... more Gone are the days when the term “offer” is confined to first-year contracts courses and the intricacies of contract formation. The offer concept has quietly migrated throughout the law. It now regulates behavior in areas as diverse as criminal law, environmental law, securities law, and intellectual property law. Despite its wide diffusion, the offer concept remains largely unstudied as a legal concept outside of its contract-law environment. This Article begins to fill that gap.
The Article begins by deconstructing the meaning of a traditional contract-law “offer” to determine its policy role in contract law, and then compares that role with offer concept’s roles in other areas of the law. Next, the Article compares the offer concept’s policy role in each area of the law to its corresponding definition therein and discusses any inconsistencies between the policy role and the definition. The Article then focuses on patent law’s use of the offer concept to regulate patent infringement and provides two primary analyses: (1) a normative analysis of the offer concept’s optimal definition in patent law and (2) a statutory analysis of the relevant statute. On the basis of the policy and statutory analyses, the Article shows why the current court-generated definition of patent law’s offer concept should be improved. The Article concludes by providing suggestions for improving the use of the offer concept in patent law and the law more generally.
Market economies are based on free competition, which can include copying. Yet intellectual prope... more Market economies are based on free competition, which can include copying. Yet intellectual property protection in the United States prohibits copying in certain circumstances to incentivize innovation and creativity. New breeds of digital works are challenging our historical application of intellectual property law. These include certain categories of software programs as well as digital manufacturing files. These new works look deceptively like works from a previous era and thus, courts might languorously treat them as they have older works. This would be a mistake. This Article analyzes these works in terms of existing intellectual property doctrine and constructs a normative framework for channeling the works among the different intellectual property regimes and, in some cases, away from intellectual property protection altogether.
As the distinction between the digital and physical worlds continues to diminish, the necessity t... more As the distinction between the digital and physical worlds continues to diminish, the necessity to reevaluate the bargain struck by the copyright regime increases in importance. Digitization brings increasingly more aspects of our world into the potential ambit of the copyright system. To understand whether and how the copyright system should apply in an increasingly digital world, it is first necessary to understand doctrinally how current copyright laws apply to new digital works. This Article corrects several errors that have appeared in the literature analyzing copyright law’s treatment of 3D printing and other digital manufacturing files. This Article incorporates an advanced technical understanding of digital manufacturing files and applies that understanding to copyright doctrine to clarify misunderstandings. The analysis briefly confirms that digital files created to manufacture creative objects are themselves clearly protected by copyright. On the other hand, and contrary to several assertions in the literature, most files created to manufacture purely utilitarian objects are not copyrightable because they lack a modicum of creativity. The lack of copyright protection for these files calls into question a number of assumptions, including whether they can be protected against even verbatim copying and whether open-source licenses involving these files can efficaciously bind downstream users. If digital manufacturing files of purely utilitarian objects do not enjoy copyright protection, creators may seek to embed additional, ancillary copyrightable material in the files to secure protection. This ancillary material serves as a lock-out code, which tries to prevent what would otherwise be lawful copying. This Article analyzes that phenomenon and discusses potential ways the law may react to it.
Increasingly, trademark litigation involves the use of trademarks in digital environments. Someti... more Increasingly, trademark litigation involves the use of trademarks in digital environments. Sometimes it involves the sale of digital models of tangible objects such as cars and handbags to be used in video games or films. With the growth of 3D printing, digital version of objects will not be limited to media products, because 3D printing technology radically separates the design and production processes.
That separation has potentially destabilizing consequences for trademark law, which has overwhelmingly been oriented toward indications of the origin of physical goods. For one thing, digitization brings much more of trademark law into contact with the Supreme Court's decision in Dastar Corp. v. Twentieth Century Fox Film Corp., raising difficult questions about whether, and under what circumstances, digital files count as “goods” for Lanham Act purposes. More broadly, a world of increasing digitization implicates important concerns about the boundaries of trademark law vis-`a-vis other areas of IP law, and it raises profound questions about the meaning of source indication and the role of trademark law in the digital world.
We argue that the question of whether we should treat digital files as relevant goods is irreducibly one of policy, and it should not be reduced to mere formalism. Digital files should be treated as goods only when consumers’ interactions with the files sufficiently resemble their interactions with physical goods that they warrant the same treatment.
In particular, we argue that digital files should be treated as goods only when the origin of the files as such (not the content of those files) is material to consumers. That, we argue, may turn out to be relatively rare. Indeed, we suggest that a world of greater digitization might well be a world in which trademark law has less relevance relative to design patent and copyright.
The articles in this issue look at how the development and use of free and open source hardware (... more The articles in this issue look at how the development and use of free and open source hardware (FOSH or simply “open hardware”) are changing the face of science, engineering, business, and law.
Free and open source software (FOSS) has proven very successful and now dominates the development of software on a global scale. It is available in source code (open source) and can be used, studied, copied, modified, and redistributed either without restriction or with restrictions only to ensure that further recipients have the same open source rights. Similarly, FOSH provides the “code” for hardware—including the bill of materials, schematics, instructions, computer-aided designs, and other information needed to recreate a physical artifact. Use of FOSH can improve product innovation in a wide range of fields. In this issue authors from a variety of disciplines and work environments discuss how this open model of innovation will drive the future of engineering. First, Alicia Gibb, founder and executive director of the Open Source Hardware Association (OSHWA) and director of the ATLAS1 Blow Things Up (BTU) Lab at the University of Colorado Boulder, argues that hardware is the next step to open sourcing everything. She touches on intellectual property (IP) issues, cites the benefits of open source hardware, introduces and explains the role of OSHWA, and hints at the future of open hardware.
The open source paradigm is already making deep inroads in the hardware space in 3D printing. With the development of the open source RepRap project (a 3D printer that can print itself) the cost of 3D printers has dropped to a point where nearly anyone can afford one for rapid prototyping and small batch manufacturing.
Ben Malouf and Harris Kenny of Aleph Objects describe their company’s approach to the use of open hardware in every aspect of their business to create the popular Lulzbot 3D printer. Their primary product is open—and consistently wins one of the top spots in Make: Magazine’s annual 3D printer shootout, ahead of proprietary 3D printers from much larger companies with far greater resources. Lulzbot printers, and those of many other manufacturers, are rapidly increasing in sales as the number of free and open source 3D printable designs erupts on the Web, making distributed manufacturing a reality.
In this context, law professor Lucas Osborn at the Campbell University School of Law takes us on a deep dive into how IP law will need to change in this new 3D printing era. After summarizing the basics of IP law and explaining why it was created, he discusses how it could both benefit and hinder 3D printing technology. His arguments will challenge readers independent of their views on patent law. For those with conventional IP leanings, he shows how IP law can hinder innovation. For those born in the Internet age, where sharing is second nature and little thought is given to licenses as long as the code is posted on Github, he offers some important lessons. He ends with a challenge for engineers to make more of an effort in helping form IP law that will benefit innovation. If these lessons on IP and open hardware replication with 3D printers are turned to experimental research in science and engineering, there is an important opportunity to radically reduce the costs of experimental research while improving it. In the next article I argue that by harnessing a scalable open source method, federal funding is spent just once for the development of scientific equipment and then a return on this investment (ROI) is realized by digital replication of scientific devices for only the costs of materials. With numerous examples I show that the ROI climbs into the thousands of percent while accelerating any research that the open paradigm touches. To harness this opportunity, I propose four straightforward and negative-net-cost policies to support FOSH development and improve access to scientific tools in the United States. The policies will directly save millions in research and STEM education expenditures, while providing researchers and students access to better equipment, which will promote advances in technology and concomitant benefits for the American economy.
Thinking about the future and the changes needed to support this development in STEM education, AnnMarie Thomas and Deb Besser of the St. Thomas School of Engineering consider how engineers and engineering educators can use maker methods to introduce students to engineering and build their technological literacy. They show that the maker movement is closely tied to open hardware and sharing as well as the traits of successful engineers. Makerspaces and fabrication (fab) labs (what Gibb calls hackerspaces) are physical hubs of the maker culture. Although these trends are clearly important for the United States, this cultural change and open hardware ethos can have dramatic impacts in the developing world. Matthew Rogge, Melissa Menke, and William Hoyle of TechforTrade explain the potential for open source and 3D printing to produce many needed items in low-resource settings, where lack of infrastructure makes local production impractical and high tariffs, unreliable supply chains, and economic instability make importation costly. Saving 90 percent on medical or scientific tools is nice in my lab, for instance, but it literally saves lives in a developing world context. The issue concludes with an op-ed by Tom Callaway, a senior software engineer at Red Hat, Inc., an open source software company with revenue over $2 billion last year (up 15 percent year over year). What makes this business accomplishment so impressive is that all of the company’s software products are available for free. Although old ways of thinking demand that companies secure a monopoly and certainly not give away “intellectual property” for free, Red Hat’s success comes from offering its customers support, collaboration, control, and a high-quality product. Tom argues that the proven open source software mentality is porting to hardware, opening up incredible opportunities for humanity. He concludes, “open source and open innovation work…. They also empower society and make it possible to push the limits of what is possible. When the barriers to collaboration are lifted, people can accomplish incredible things.”
As all of the articles show, open source tools in the hands of this and future generations of engineers will be incredible indeed.
This Article provocatively asserts that lawmakers should weaken patents significantly—by between ... more This Article provocatively asserts that lawmakers should weaken patents significantly—by between 25% and 50%. The primary impetus for this conclusion is the underappreciated effects of new and emerging technologies, including three-dimensional printing, synthetic biology, and cloud computing. These and other technologies are rapidly decreasing the costs of each stage of the innovation cycle: from basic research, through inventing and prototyping, to marketing and distribution. The primary economic theories supporting patent law hold that inventors and innovators need patents to recoup the costs associated with research, inventing, and commercializing. Because new technologies have begun—and will continue—to dramatically decrease these costs, the case for weakening patents is ripe for analysis.
The digital revolution has now moved beyond music and video files. A person can now translate thr... more 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.
Three-dimensional printing is invading society, bringing with it the ability to “print” objects (... more Three-dimensional printing is invading society, bringing with it the ability to “print” objects (atoms) from computer files (bits). Posting a computer CAD file of an object (an illegal gun or an infringing shoe) to the internet essentially makes the physical object available to the world. The technology portends dramatic shifts in manufacturing, trade, medicine, and more, and will require a legal regime that integrates the legal concepts governing the digital and physical worlds.
This Article represents the first broad descriptive and normative study of this technology and its multivalent effects on law. The Article separates truly novel legal issues raised by 3D printing from issues for which the current regulatory regime is well designed. After identifying novel legal issues, the Article builds on a rich literature set of regulatory and compliance literature to construct an integrated regulatory regime to govern 3D printing. It then applies this regime to the world of 3D printing, describes the political economy of 3D printing technology, and discusses specific regulatory challenges brought about by the digitization of physical goods. As a guiding theme, this Article argues that the nascent but promising state of 3D printing technology necessitates a flexible and iterative regulatory response.
The confluence of three-dimensional printing, three-dimensional scanning, and the Internet will e... more The confluence of three-dimensional printing, three-dimensional scanning, and the Internet will erode the dividing line between the physical and the digital worlds and will bring millions of laypeople into intimate contact with the full spectrum of intellectual property laws. One of the areas most affected by 3D printers will be three-dimensional art. This Article analyzes several ways in which 3D printing technology will affect the creation, delivery, and consumption of art. Not only does 3D printing offer great promise for creative works, but it also presents a problem of piracy that may accompany the digitization of three-dimensional works. As 3D printing technology’s relationship to intellectual property law is largely unexplored, this Article explores foundational issues regarding how copyright law applies to 3D printing technology, laying the groundwork upon which further analysis of 3D printing’s effects on copyright law may be built.
Gone are the days when the term “offer” is confined to first-year contracts courses and the intri... more Gone are the days when the term “offer” is confined to first-year contracts courses and the intricacies of contract formation. The offer concept has quietly migrated throughout the law. It now regulates behavior in areas as diverse as criminal law, environmental law, securities law, and intellectual property law. Despite its wide diffusion, the offer concept remains largely unstudied as a legal concept outside of its contract-law environment. This Article begins to fill that gap.
The Article begins by deconstructing the meaning of a traditional contract-law “offer” to determine its policy role in contract law, and then compares that role with offer concept’s roles in other areas of the law. Next, the Article compares the offer concept’s policy role in each area of the law to its corresponding definition therein and discusses any inconsistencies between the policy role and the definition. The Article then focuses on patent law’s use of the offer concept to regulate patent infringement and provides two primary analyses: (1) a normative analysis of the offer concept’s optimal definition in patent law and (2) a statutory analysis of the relevant statute. On the basis of the policy and statutory analyses, the Article shows why the current court-generated definition of patent law’s offer concept should be improved. The Article concludes by providing suggestions for improving the use of the offer concept in patent law and the law more generally.
Uploads
Papers by Lucas Osborn
That separation has potentially destabilizing consequences for trademark law, which has overwhelmingly been oriented toward indications of the origin of physical goods. For one thing, digitization brings much more of trademark law into contact with the Supreme Court's decision in Dastar Corp. v. Twentieth Century Fox Film Corp., raising difficult questions about whether, and under what circumstances, digital files count as “goods” for Lanham Act purposes. More broadly, a world of increasing digitization implicates important concerns about the boundaries of trademark law vis-`a-vis other areas of IP law, and it raises profound questions about the meaning of source indication and the role of trademark law in the digital world.
We argue that the question of whether we should treat digital files as
relevant goods is irreducibly one of policy, and it should not be reduced to mere formalism. Digital files should be treated as goods only when consumers’ interactions with the files sufficiently resemble their interactions with physical goods that they warrant the same treatment.
In particular, we argue that digital files should be treated as goods only when the origin of the files as such (not the content of those files) is material to consumers. That, we argue, may turn out to be relatively rare. Indeed, we suggest that a world of greater digitization might well be a world in which trademark law has less relevance relative to design patent and copyright.
Free and open source software (FOSS) has proven very successful and now dominates the development of software on a global scale. It is available in source code (open source) and can be used, studied, copied, modified, and redistributed either without restriction or with restrictions only to ensure that further recipients have the same open source rights.
Similarly, FOSH provides the “code” for hardware—including the bill of materials, schematics, instructions, computer-aided designs, and other information needed to recreate a physical artifact. Use of FOSH can improve product innovation in a wide range of fields. In this issue authors from a variety of disciplines and work environments discuss how this open model of innovation will drive the future of engineering.
First, Alicia Gibb, founder and executive director of the Open Source Hardware Association (OSHWA) and director of the ATLAS1 Blow Things Up (BTU) Lab at the University of Colorado Boulder, argues that hardware is the next step to open sourcing everything. She touches on intellectual property (IP) issues, cites the benefits of open source hardware, introduces and explains the role of OSHWA, and hints at the future of open hardware.
The open source paradigm is already making deep inroads in the hardware space in 3D printing. With the development of the open source RepRap project (a 3D printer that can print itself) the cost of 3D printers has dropped to a point where nearly anyone can afford one for rapid prototyping and small batch manufacturing.
Ben Malouf and Harris Kenny of Aleph Objects describe their company’s approach to the use of open hardware in every aspect of their business to create the popular Lulzbot 3D printer. Their primary product is open—and consistently wins one of the top spots in Make: Magazine’s annual 3D printer shootout, ahead of proprietary 3D printers from much larger companies with far greater resources. Lulzbot printers, and those of many other manufacturers, are rapidly increasing in sales as the number of free and open source 3D printable designs erupts on the Web, making distributed manufacturing a reality.
In this context, law professor Lucas Osborn at the Campbell University School of Law takes us on a deep dive into how IP law will need to change in this new 3D printing era. After summarizing the basics of IP law and explaining why it was created, he discusses how it could both benefit and hinder 3D printing technology. His arguments will challenge readers independent of their views on patent law. For those with conventional IP leanings, he shows how IP law can hinder innovation. For those born in the Internet age, where sharing is second nature and little thought is given to licenses as long as the code is posted on Github, he offers some important lessons. He ends with a challenge for engineers to make more of an effort in helping form IP law that will benefit innovation.
If these lessons on IP and open hardware replication with 3D printers are turned to experimental research in science and engineering, there is an important opportunity to radically reduce the costs of experimental research while improving it. In the next article I argue that by harnessing a scalable open source method, federal funding is spent just once for the development of scientific equipment and then a return on this investment (ROI) is realized by digital replication of scientific devices for only the costs of materials. With numerous examples I show that the ROI climbs into the thousands of percent while accelerating any research that the open paradigm touches. To harness this opportunity, I propose four straightforward and negative-net-cost policies to support FOSH development and improve access to scientific tools in the United States. The policies will directly save millions in research and STEM education expenditures, while providing researchers and students access to better equipment, which will promote advances in technology and concomitant benefits for the American economy.
Thinking about the future and the changes needed to support this development in STEM education, AnnMarie Thomas and Deb Besser of the St. Thomas School of Engineering consider how engineers and engineering educators can use maker methods to introduce students to engineering and build their technological literacy. They show that the maker movement is closely tied to open hardware and sharing as well as the traits of successful engineers. Makerspaces and fabrication (fab) labs (what Gibb calls hackerspaces) are physical hubs of the maker culture.
Although these trends are clearly important for the United States, this cultural change and open hardware ethos can have dramatic impacts in the developing world. Matthew Rogge, Melissa Menke, and William Hoyle of TechforTrade explain the potential for open source and 3D printing to produce many needed items in low-resource settings, where lack of infrastructure makes local production impractical and high tariffs, unreliable supply chains, and economic instability make importation costly. Saving 90 percent on medical or scientific tools is nice in my lab, for instance, but it literally saves lives in a developing world context.
The issue concludes with an op-ed by Tom Callaway, a senior software engineer at Red Hat, Inc., an open source software company with revenue over $2 billion last year (up 15 percent year over year). What makes this business accomplishment so impressive is that all of the company’s software products are available for free. Although old ways of thinking demand that companies secure a monopoly and certainly not give away “intellectual property” for free, Red Hat’s success comes from offering its customers support, collaboration, control, and a high-quality product. Tom argues that the proven open source software mentality is porting to hardware, opening up incredible opportunities for humanity. He concludes, “open source and open innovation work…. They also empower society and make it possible to push the limits of what is possible. When the barriers to collaboration are lifted, people can accomplish incredible things.”
As all of the articles show, open source tools in the hands of this and future generations of engineers will be incredible indeed.
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.
This Article represents the first broad descriptive and normative study of this technology and its multivalent effects on law. The Article separates truly novel legal issues raised by 3D printing from issues for which the current regulatory regime is well designed. After identifying novel legal issues, the Article builds on a rich literature set of regulatory and compliance literature to construct an integrated regulatory regime to govern 3D printing. It then applies this regime to the world of 3D printing, describes the political economy of 3D printing technology, and discusses specific regulatory challenges brought about by the digitization of physical goods. As a guiding theme, this Article argues that the nascent but promising state of 3D printing technology necessitates a flexible and iterative regulatory response.
The Article begins by deconstructing the meaning of a traditional contract-law “offer” to determine its policy role in contract law, and then compares that role with offer concept’s roles in other areas of the law. Next, the Article compares the offer concept’s policy role in each area of the law to its corresponding definition therein and discusses any inconsistencies between the policy role and the definition. The Article then focuses on patent law’s use of the offer concept to regulate patent infringement and provides two primary analyses: (1) a normative analysis of the offer concept’s optimal definition in patent law and (2) a statutory analysis of the relevant statute. On the basis of the policy and statutory analyses, the Article shows why the current court-generated definition of patent law’s offer concept should be improved. The Article concludes by providing suggestions for improving the use of the offer concept in patent law and the law more generally.
That separation has potentially destabilizing consequences for trademark law, which has overwhelmingly been oriented toward indications of the origin of physical goods. For one thing, digitization brings much more of trademark law into contact with the Supreme Court's decision in Dastar Corp. v. Twentieth Century Fox Film Corp., raising difficult questions about whether, and under what circumstances, digital files count as “goods” for Lanham Act purposes. More broadly, a world of increasing digitization implicates important concerns about the boundaries of trademark law vis-`a-vis other areas of IP law, and it raises profound questions about the meaning of source indication and the role of trademark law in the digital world.
We argue that the question of whether we should treat digital files as
relevant goods is irreducibly one of policy, and it should not be reduced to mere formalism. Digital files should be treated as goods only when consumers’ interactions with the files sufficiently resemble their interactions with physical goods that they warrant the same treatment.
In particular, we argue that digital files should be treated as goods only when the origin of the files as such (not the content of those files) is material to consumers. That, we argue, may turn out to be relatively rare. Indeed, we suggest that a world of greater digitization might well be a world in which trademark law has less relevance relative to design patent and copyright.
Free and open source software (FOSS) has proven very successful and now dominates the development of software on a global scale. It is available in source code (open source) and can be used, studied, copied, modified, and redistributed either without restriction or with restrictions only to ensure that further recipients have the same open source rights.
Similarly, FOSH provides the “code” for hardware—including the bill of materials, schematics, instructions, computer-aided designs, and other information needed to recreate a physical artifact. Use of FOSH can improve product innovation in a wide range of fields. In this issue authors from a variety of disciplines and work environments discuss how this open model of innovation will drive the future of engineering.
First, Alicia Gibb, founder and executive director of the Open Source Hardware Association (OSHWA) and director of the ATLAS1 Blow Things Up (BTU) Lab at the University of Colorado Boulder, argues that hardware is the next step to open sourcing everything. She touches on intellectual property (IP) issues, cites the benefits of open source hardware, introduces and explains the role of OSHWA, and hints at the future of open hardware.
The open source paradigm is already making deep inroads in the hardware space in 3D printing. With the development of the open source RepRap project (a 3D printer that can print itself) the cost of 3D printers has dropped to a point where nearly anyone can afford one for rapid prototyping and small batch manufacturing.
Ben Malouf and Harris Kenny of Aleph Objects describe their company’s approach to the use of open hardware in every aspect of their business to create the popular Lulzbot 3D printer. Their primary product is open—and consistently wins one of the top spots in Make: Magazine’s annual 3D printer shootout, ahead of proprietary 3D printers from much larger companies with far greater resources. Lulzbot printers, and those of many other manufacturers, are rapidly increasing in sales as the number of free and open source 3D printable designs erupts on the Web, making distributed manufacturing a reality.
In this context, law professor Lucas Osborn at the Campbell University School of Law takes us on a deep dive into how IP law will need to change in this new 3D printing era. After summarizing the basics of IP law and explaining why it was created, he discusses how it could both benefit and hinder 3D printing technology. His arguments will challenge readers independent of their views on patent law. For those with conventional IP leanings, he shows how IP law can hinder innovation. For those born in the Internet age, where sharing is second nature and little thought is given to licenses as long as the code is posted on Github, he offers some important lessons. He ends with a challenge for engineers to make more of an effort in helping form IP law that will benefit innovation.
If these lessons on IP and open hardware replication with 3D printers are turned to experimental research in science and engineering, there is an important opportunity to radically reduce the costs of experimental research while improving it. In the next article I argue that by harnessing a scalable open source method, federal funding is spent just once for the development of scientific equipment and then a return on this investment (ROI) is realized by digital replication of scientific devices for only the costs of materials. With numerous examples I show that the ROI climbs into the thousands of percent while accelerating any research that the open paradigm touches. To harness this opportunity, I propose four straightforward and negative-net-cost policies to support FOSH development and improve access to scientific tools in the United States. The policies will directly save millions in research and STEM education expenditures, while providing researchers and students access to better equipment, which will promote advances in technology and concomitant benefits for the American economy.
Thinking about the future and the changes needed to support this development in STEM education, AnnMarie Thomas and Deb Besser of the St. Thomas School of Engineering consider how engineers and engineering educators can use maker methods to introduce students to engineering and build their technological literacy. They show that the maker movement is closely tied to open hardware and sharing as well as the traits of successful engineers. Makerspaces and fabrication (fab) labs (what Gibb calls hackerspaces) are physical hubs of the maker culture.
Although these trends are clearly important for the United States, this cultural change and open hardware ethos can have dramatic impacts in the developing world. Matthew Rogge, Melissa Menke, and William Hoyle of TechforTrade explain the potential for open source and 3D printing to produce many needed items in low-resource settings, where lack of infrastructure makes local production impractical and high tariffs, unreliable supply chains, and economic instability make importation costly. Saving 90 percent on medical or scientific tools is nice in my lab, for instance, but it literally saves lives in a developing world context.
The issue concludes with an op-ed by Tom Callaway, a senior software engineer at Red Hat, Inc., an open source software company with revenue over $2 billion last year (up 15 percent year over year). What makes this business accomplishment so impressive is that all of the company’s software products are available for free. Although old ways of thinking demand that companies secure a monopoly and certainly not give away “intellectual property” for free, Red Hat’s success comes from offering its customers support, collaboration, control, and a high-quality product. Tom argues that the proven open source software mentality is porting to hardware, opening up incredible opportunities for humanity. He concludes, “open source and open innovation work…. They also empower society and make it possible to push the limits of what is possible. When the barriers to collaboration are lifted, people can accomplish incredible things.”
As all of the articles show, open source tools in the hands of this and future generations of engineers will be incredible indeed.
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.
This Article represents the first broad descriptive and normative study of this technology and its multivalent effects on law. The Article separates truly novel legal issues raised by 3D printing from issues for which the current regulatory regime is well designed. After identifying novel legal issues, the Article builds on a rich literature set of regulatory and compliance literature to construct an integrated regulatory regime to govern 3D printing. It then applies this regime to the world of 3D printing, describes the political economy of 3D printing technology, and discusses specific regulatory challenges brought about by the digitization of physical goods. As a guiding theme, this Article argues that the nascent but promising state of 3D printing technology necessitates a flexible and iterative regulatory response.
The Article begins by deconstructing the meaning of a traditional contract-law “offer” to determine its policy role in contract law, and then compares that role with offer concept’s roles in other areas of the law. Next, the Article compares the offer concept’s policy role in each area of the law to its corresponding definition therein and discusses any inconsistencies between the policy role and the definition. The Article then focuses on patent law’s use of the offer concept to regulate patent infringement and provides two primary analyses: (1) a normative analysis of the offer concept’s optimal definition in patent law and (2) a statutory analysis of the relevant statute. On the basis of the policy and statutory analyses, the Article shows why the current court-generated definition of patent law’s offer concept should be improved. The Article concludes by providing suggestions for improving the use of the offer concept in patent law and the law more generally.