Chapter 7 describes how 3D printing technology will disrupt trademark law’s core function of indicating the source or origin of manufactured goods. The technology dissociates product design from product manufacturing. Design is embodied in a 3D printable file, while manufacturing is commoditized and democratized. When 3D printable files, as opposed to manufactured goods, are offered for sale, symbols appearing “inside” of the digital files (i.e., on the digital object) do not indicate the source of the file. Rather, source indicators are found “outside” of the file, on the websites that offer the files for sale. 3D printing technology will also radically disrupt the doctrine of post-sale confusion. At the same time, current, expanded theories of trademark law condemn uses of symbols that might dilute a trademark or suggest a connection to a trademark owner. These stronger versions of trademark protection, which are widely criticized, would give trademark owners to the right to control most uses of their marks “inside” of files. This would inhibit innovation and creative expression without a clear benefit to the public. Therefore, I recommend against these stronger protections for DMFs.

3D printing technology unquestionably will grow in importance in the coming years. The technology will disrupt the settled processes for the design, manufacture, and dissemination of myriad physical objects. I have used the term physitization to capture the various facets of this disruptive phenomenon whereby objects can move back and forth between digital and physical embodiments and in which economic value has spread from tangible to virtual embodiments.

Chapter 5 turns to patent infringement. It introduces a fundamental tension between patent holders and good faith users of the technology. 3D printing will expose unsuspecting individuals and 3D print shops to patent infringement liability when they print patented objects. To spare unintentionally infringing individuals and 3D print shops the ruinous costs of litigation, I explore options for exemptions and safe harbors. At the same time, if 3D printing enables massive, individualized manufacturing, and if the law exempts each individual act of infringement, patent rights would be eviscerated. Squaring this circle will not be easy, but the chapter explores ways to alleviate the tension, particularly by strengthening indirect infringement claims and limiting exemptions to cases where the accused infringer had no knowledge of the patent. In addition, Chapter 5 demonstrates that 3D printable files will not infringe traditional patent claims directed to tangible objects. Moreover, the most commonly traded 3D printable file format will not infringe a computer-readable medium (Beauregard) claim. Attempting to alleviate some of the protection gaps for patent holders while balancing the needs of users, the chapter considers a novel theory of “digital patent infringement.”

Chapter 4 analyzes the doctrine of patentable subject matter. Delving into American, European, and Japanese patent jurisprudence, it first describes how these legal systems handle software-related inventions in general. Next, it applies that jurisprudence to 3D printable files to demonstrate why only one of the three 3D printing file formats is likely to constitute patentable subject matter. More intriguingly, it turns out that this file format is of least interest to would-be patent holders. In other words, a patent protection gap exists. Chapter 4 also analyzes jurisdictions’ differential treatment of patent claims directed to electronic signals. The Japanese and European patent systems consider these claims to be patentable subject matter, whereas the U.S. system does not. The upshot is that patent protection for software and 3D printable files is weaker in the United States because most 3D printable files are sold as internet signal transmissions. I argue that the United States should provide protection for signal claims.