Tell Congress: Online Creators Need Net Neutrality!Learn how net neutrality affects your ability to make money online
While you were preparing to get your Thanksgiving on last week, news broke that one of the oldest and largest 3D printing companies, 3D Systems, was suing one of the newest, Formlabs, for patent infringement. Besides the obvious question (is Formlabs actually infringing?), the suit raises two other interesting questions: what does it mean when an established 3D printing company sues an upstart for patent infringement? And why did 3D Systems decide to sue Kickstarter as well?
First, a bit of background.
3D printing has existed since the mid-1980s. However, it was not until 2007 that Professor Adrian Bowyer created the RepRap – the grandfather of almost all “home” 3D printers available today. Why the delay? Largely patents.
Once the first 3D printing patents began to expire in 2007, the community quickly embraced, and rapidly improved upon, the 20-year old technology. In just a few years a number of companies were selling their own version of a home 3D printer.
While each of these printers are unique, almost all of them worked in essentially the same way – they built objects up layer by layer from melted plastic. This was because everyone in the market was building off of the same expired patents (and was limited by the same existing patents).
That was one of the things that made Formlabs’ FORM 1 printer so interesting. It had higher resolution and used a fundamentally different technology than most existing printers. While it was no doubt an impressive feat of engineering, the real achievement appeared to be a feat of lawyering – how had everyone missed this hole in the existing patent wall?
3D Systems Suing Formlabs
Although there is a great deal of interesting discussion about problems with the patent system (especially software patents) and with the relationship between patents and open source 3D printers, those concerns are not necessarily relevant here. I will not pretend to be an engineer nor a patent attorney (and will update this post when I am corrected in my interpretation), but the patent in question seems to be reasonably close to what people might think of as a “regular” (non-controversial type) patent involving materials science. The larger debate around patent reform rarely focuses on these types of patents, and no one can accuse 3D Systems of being a non-practicing entity (also known as a troll) or of hiding the fact that they own many patents related to 3D printing.
Similarly, the larger openness question does not directly apply to this case. Formlabs may not have patented its technology, but it has not embraced openness either. From an openness standpoint, this is essentially one closed company suing another.
All of this means that 3D Systems’ decision to sue Formlabs should not automatically make it a bad actor. If they had a valid patent and Formlabs was infringing upon it, they have every right to sue. Furthermore, if Formlabs was able to beat all of its (consumer-grade) competitors by ignoring the patent that was keeping everyone else away from a better 3D printing technology, they should not necessarily be rewarded.
Of course, if 3D Systems loses aginst Formlabs it does raise a few questions, not the least of which are "have the home 3D printing compaines been avoiding this technology for no reason?" and "why hasn't 3D Systems tried to sell this technology to the consumer market?"
3D Systems Suing Kickstarter
This is a bit more troubling, and could have a significant chilling effect on Kickstarter as a catalyst for innovation. For those of you who are familiar with how websites that host third party copyrighted content work online, this section is going to sound familiar.
Just as requiring YouTube or Facebook to review every video or post for copyright infringement would make it impossible for those sites to operate, requiring Kickstarter to review every project for patent compliance would effectively end its ability to host hardware startups. While it is true that Kickstarter already reviews projects before they go live, that review is for compliance with a set of fairly straightforward project guidelines. Requiring a full patent check for every hardware startup would fundamentally change the verification burden (this is not to say that Kickstarter does not have any obligations to existing rightsholders, as illustrated here).
While retailers often deal with concerns about patent liability by demanding indemnification from their suppliers, that guarantee is near useless to a site like Kickstarter. Kickstarter is a place for projects to find their launch funding. Almost by definition, that means that they do not have very much money. As a result, a promise from a project to cover Kickstarter if it gets sued for patent infringement is unlikely to be backed up by very much actual money.
In light of this, including Kickstarter in the suit could be read as an attempt to push Kickstarter away from hosting hardware startups in the first place. Since new 3D printers are one of the most popular types of hardware startups on the site, this could be interpreted as 3D Systems trying to use its patent to cut off the flow of rivals – not just shutting down one that infringes on its patent.
In many ways, this is a sad story. It will be unfortunate if it turns out that Formlabs did not really find a way through the patent wall surrounding one of the more advanced 3D printing techniques. It will be unfortunate if it turns out that Formlabs did manage to find a way through the patent wall but has to spend a great deal of money proving it. It will also be unfortunate if 3D Systems’ inclusion of Kickstarter in its suit makes it harder for new 3D printers – and all hardware projects – to get funding.
It will also be sad if it contributes to the narrative that traditional 3D printer companies are uninterested – or unwilling – to serve the emerging home market. Sometimes these existing companies look like the old mainframe companies at the dawn of the PC age – pointing out all of the things that the new home printers cannot do, while looking past the things that they can do at a fraction of the cost of existing “powerful” machines.
For the past year, it has looked like 3D Systems was interested in engaging the home market. To their credit they rolled out their own home 3D printer, albeit with the same expired patent technology that everyone else was using. They did not seem interested in turning any of their still-patented technology into an affordable consumer-grade model, but they were interested in offering the home market a product.
Now, they have not only sued a company that tried to bring next-generation technology to consumers but also the pipeline for the next-next 3D printing company.
It is not clear what will come of this lawsuit, or even what should come of it. As long as we have a patent system, 3D Systems has every right to defend its valid patents and Formlabs has every right to prove that it did not infringe (or that the patent is invalid). At the same time, one could hope that 3D Systems might try and bring new options to the market, not just block others from doing so. Furthermore, including Kickstarter in this fight, which has fueled the creation of so much hardware innovation, seems like a decision designed to alienate exactly the type of people who you might want to sell 3D printers to in the future.
And so now we watch. This may be one of the first patent lawsuits to affect the home 3D printing market, but probably for reasons beyond Formlabs’ survival. It could effectively shut Kickstarter’s door to hardware startups. It could also signal that traditional 3D printing companies are more interested in suing the consumer market out of existence than cultivating it. In any event, it is certainly something worth watching.