Patent lawyers: Help! The evil Makers won't let us apply for bullshit 3D printing patents!

Two minor characters from my novel Makers have apparently come to life and written an article for 3D Printing Industry. These two people are patent lawyers for Finnegan IP law firm, Washington, DC, which I don't recall making up, but this is definitely a pair of Doctorow villains (though, thankfully, I had the good sense not to give them any lines in the book -- they're far too cliched in their anodyne evil for anyone to really believe in).

These patent lawyers are upset because the evil Makers (capital-M and all!) are working with the Electronic Frontier Foundation to examine bad 3D printing patents submitted to the US Patent and Trademark Office. The problem is that 3D printing is 30 years old, so nearly all the stuff that people want to patent and lock up and charge rent on for the next 20 years has already been invented, and the pesky Makers are insisting on pointing out this inconvenient fact to the USPTO.

This breaks the established order, which is much to be preferred: the UPSTO should grant all the bullshit patents that companies apply for. The big companies can pay firms like Finnegan to file patents on every trivial, stale, ancient idea and then cross-license them to each other, but use them to block disruptive new entrants to the marketplace. The old system also has the desirable feature of arming patent trolls with the same kind of bullshit patents so that they can sue giant companies and disruptive startups alike, and Finnegan can be there to soak up the tens of millions of dollars in legal fees generated by all this activity.

Can't these darned Makers understand? The point of a patent isn't to protect novel, useful inventions! It's to put the brakes on out-of-control innovation and to ensure that the children of the partners at Finnegan can go to a good college! What will happen to GDP if we divert money from the honest business of barratry and allow it to be squandered on making and selling stuff that people find useful?

The America Invents Act changed U.S. patent law to allow preissuance submissions, a mechanism by which third parties can submit patents or printed publications to the United States Patent & Trademark Office (USPTO) for consideration during patent examination, along with “a concise description of the asserted relevance of each submitted document.”[2] The U.S. Congress intended preissuance submissions to help the USPTO increase the efficiency of examination and the quality of issued patents.[3] Congress did not, however, intend the use of this mechanism to interfere with patent examination.[4] Nor did it intend preissuance submissions to allow for third party protest or preissuance opposition.[5] Yet a segment of the 3D printing (3DP) community, known as Makers, is using preissuance submissions as a sword to oppose 3DP-related patent applications. Perhaps more importantly, they are leveraging the concept of crowdsourcing to do so, potentially creating problems for patent applicants everywhere.[6]

To understand why and how Makers are mobilizing to challenge patents through presissuance submissions, one must first understand what 3DP is, and the composition of the 3DP community. 3D printing—more formally known as additive manufacturing—is a technology that creates three dimensional objects from CAD files. There are many legacy and emerging 3DP technologies. Generally, 3DP works by fusing layer upon layer of materials, such as plastics, powder metals, and ceramics, to build a final, fully formed product, much as Athena sprung full-blown from the head of Zeus. This process requires a digital 3D model of the product, stored in a CAD file, and a 3D printer. Digital product models can be obtained by either (1) designing the product with a CAD program; (2) downloading an existing CAD file from the Internet; or (3) scanning an existing product with a 3D scanner to create a CAD file. Further, almost anyone can buy a 3D printer today; they are sold through Skymall and at Staples. Where 3DP was once cost prohibitive for most, ‘prosumer’ and home printers are now available at reasonable prices.

Crowdsourcing Prior Art to Defeat 3D Printing Patent Applications

(via Beyond the Beyond)

(Images: Caricature of William Otto Adolph Julius Danckwerts, Caricature of Charles Russell, Leslie Ward/Vanity Fair/Wikimedia Commons)


  1. That was an over-the-top and misleading synopsis, even for boingboing.

    This wasn’t evil lawyers bemoaning the intransigence of makers, it was instead a pretty standard article written by lawyers to explain changing law to laypeople; in this case laypeople in the commercial 3d printing industry. A far better excerpt is the final two paragraphs:

    The irony of the Makers’ preissuance submissions may be that stronger but narrower—though possibly fewer—patents eventually issue.  After a preissuance submission is filed with the USPTO, the submitter’s involvement with the application ends.  The patent applicant then gets the chance to distinguish its pending claims from the submitted prior art.  If the applicant overcomes the prior art, it will obtain a patent that has already been tested against what may be the best available prior art.  In other words, what does not kill the application makes it stronger.  If stronger 3DP-related patents issue after Makers’ preissue submissions, the Maker community’s goal of blocking and weakening patent protection may be undercut.

    It will be interesting to see how these unintended consequences play out.  Will the use of preissuance submissions be restricted?  Will fewer or narrower patents issue in this space?  Will Makers unintentionally help stronger 3DP-related patents to issue?  Or will they keep their powder dry and save strong prior art for post-issue validity challenges?  Only time will tell.  We plan to watch it closely.

    To be clear: patent lawyers are not concerned by better prior art. Drafting around prior art is one of the primary purposes of a patent lawyer. The more prior art, the more you need a good patent lawyer.

        1. He’s new. He hasn’t had time to learn this is BB, and you’re supposed to argue via passive-aggressive speculation about people’s motivations, not through silly distractions like establishing premises and supporting them.

          1.  Based on this:

            Will Makers unintentionally help stronger 3DP-related patents to issue?
             Or will they keep their powder dry and save strong prior art for
            post-issue validity challenges?  Only time will tell.  We plan to watch
            it closely.

            Seems like that person has nailed the passive aggressive speculation on the motives of others.  Guess s/he is a natural.

    1. Have to, I agree with you. It’s right to be alert to gormandizing false flagging, but in this case, the lawyer’s article doesn’t take the form of a complaint. It’s fluff commentary, to be sure, but not complaint.

    2. “… the Maker community’s goal of blocking and weakening patent protection…”

      Do you often post material in defence of your thesis, that totally demolishes your thesis, and concretely buttresses the opposing thesis?

      Is this some manner of Modest Proposal?

      Are you adopting this position so it can be thoroughly ridiculed?

          1. Ah, yes, the Socratic method.  I’ll take that as a no, you don’t have a point, just a deep, powerful drive to corrupt the youth and be annoying.  They made him drink hemlock for a reason, you know, LOL

    3. “Will Makers unintentionally help stronger 3DP-related patents to issue?  Or will they keep their powder dry and save strong prior art for post-issue validity challenges?”

      Will patients unintentionally help stronger strains of diseases develop by trying to prevent them or will they say, “screw it!” and wait to get treated for the diseases when they’re already dying of them?

    4. Is it really the maker’s goal (or the eff’s) to weaken patents? I thought it was their goal to reduce the number of bogus patents and the nuisance patent assertions that arise from bogus patents. The article makes it seem like eff’s strategy will be very effective in accomplishing those goals. I would love to see this process used in every area of patents. It’s really frustrating to see so many patents that are clearly covered by prior art but the PTO just didn’t have the expertise or resources to find that art when examining the application. Crowd sourcing is a fantastic way to improve that process and, yes, to strengthen rather than weaken the patent system as a whole, while at the same time reducing the number of barriers to people who just want to make new things using old technology.

    5. The patent applicant then gets the chance to distinguish its pending claims from the submitted prior art. 

      The USPTO obviously works diligently to ensure 100% of prior art is accounted for.

      And the patent applicant obviously goes to all lengths to ensure that the application is widely publicised, especially in all the trade journals and relevant websites.

      Because they both dread the day that an under-funded and under-gunned cavalry ride into patentville to fight through the tangled and bureaucratic status quo to reverse the grant of a worthless patent.

    6.  I haven’t read the entire article, but does the author back up the assertion that there is widespread intention in the Maker community to weaken and block patent protection for ACTUALLY novel patents?  I think that there is widespread dislike for the current system of the USPTO granting patents on a virtually pro forma basis and just letting the holders and potential infringers fight it out in court.  Even his own summary sounds fairly “Hey, get those meddling kids off our lawn>”

    7. As we say in patent law, the stronger a patent is, the weaker it is, and vice versa.  Narrowing a patent does make it stronger over it’s claimed invention, but simultaneously weakens it by narrowing it’s scope.  Additionally, narrower claims are more likely to conform to whatever inventive contribution the patent applicant has developed, rather than over-claiming that covers existing technology.  

      While Finnegan IP can claim that the Makers could potentially strengthen 3DP patents, their goal is to acquire the broadest patents possible for their clients, in order to prohibit competition as much as possible.  Additionally, reducing scope and limiting 3DP patents to actual innovations are both goals of the EFF/Maker community.  The resulting “stronger” patent is a pyrrhic victory, given the 3-for-1 wallop reduced scope delivers.

  2. My first exposure to 3D printing was at the ’79 NCC in New York. Some guy cornered me in a hotel lobby near the old Coliseum where the show was being held. He had developed a 3D printing process that used a pair of lasers focused into a 3D block of photosensitive gel. Where the two lasers met, the gel would “develop”, darken and stiffen. When the process was complete, a solvent would wash away all the un-“developed” parts. He didn’t have a sample, though he did have a sort of white paper full of pictures. His test object was a rather low resolution model of Rodin’s Thinker. It was obviously not a very precise printing technique, but the general idea was there. He was seriously undercapitalized having only one copy of his report and no business cards, but this was before the 1980s networking craze and everyone getting business cards.

    (This was also the conference where VisiCalc was revealed to the public, but Bob Frankston’s paper didn’t make it into the proceedings, because it wasn’t important enough. I attended the demo with a few friends and a couple who had just wanted a place to sit down and figured that this was a quiet conference room with lots of empty chairs. Esther Dyson and the Apple II boom and the tail wagging the dog stuff didn’t start for another few months.)

  3. The funny thing, of course, is that prior art was always supposed to be disclosed and examined as part of a patent application.

    This amounts to a ‘system threatens to function as intended!’ article.

  4. I’d like to propose a contest for overly-simplistic bogus analogies that end with “much as Athena sprung full-blown from the head of Zeus.”

    For example:

    For four years Michelangelo painstakingly applied layers of paint to the chapel ceiling until an image appeared, much as Athena sprung full-blown from the head of Zeus.


    Evolutionary pressures created a split in the order Monotremata resulting over 19 million years later in the existence of the Platypus, much as Athena sprung full-blown from the head of Zeus.

        1. Depends. Do you plan to ship it to me via FedEx? Because there’s no guarantee it will be only slightly broken when it arrives. But you know? Sure! Yes, please I want a broken giant robot head. I’ll snap photos of it going on vacation with me; travelin’ droid.

      1. I’d rather have a 3D printer built into the head of a bust of Zeus, you know, flip-top for easier access.

        Man, now I wish I knew a sculptor or two.  That would be meta as f*ck.  Probably get a lot of love at the Makerfaire, too.

    1. Perhaps it is a Secret Society Call Sign, included to let those “in the know” where they need to stand on the issue.

      Is there no help for the Widow’s Son? *opening and closing umbrella*

      1. Dunno about the Widow’s Son, but the spinster’s sister’s’ daughter on the other hand…

  5. Cory wins this round.  As a lawyercat who regularly pounces bad patents, I can attest that when the PTO enters a newer tech area there’s a lot less art for them to use — and anything that helps avoid overbroad patents is good for innovation and for all of us.  

    But don’t hate the haters.  They’re just seeing the world from their business point of view so its harder for them to see the big picture.  

    1. I invented the 3D-printed wheel. Totally different from standard wheels. This one was done up in CAD and stuff. Totally different. Approve my patent now. Also, levers.

    2. Is there a problem with hating the folks whose job is to extract money from the ideas of others?

  6. The fact of the matter is that 3D printing, previously known as rapid prototyping, HAS been around for over 30 years.  I realize that 3DP crowd likes to think that they’re revolutionaries on the cusp of a technical revolution that is about to democratize the industry of everything, but this tech has been around for a long time and is quite mature.

    Just because the patents lack that New Internet Smell doesn’t mean that the people that own them aren’t entitled to compensation.  Being justly rewarded for a novel idea is precisely what drives innovation in the patent system.

    1. 3D printing may have been around for 30 years, but the patent holders and trolls alike have done *nothing* to spur innovation and new uses for the technology. The explosion of applications for 3DP has arrived only after the RepRap project – and their mission to put the plans and source files firmly into the public domain. 

      1. I haven’t heard of any significant lawsuits being brought against 3D printer manufacturers, so you could say that they haven’t done anything to hinder it either.

        What do you propose that patent holders do to spur innovation?  It seems like doing nothing (not taking legal action) is about the best possible thing they could do.

        The technology hasn’t taken off in the past because it doesn’t scale down.  It’s a huge industry and, trust me, if it were easy/feasible to make a low-cost rapid prototyping machine that would fit on a desktop and produce durable, high-resolution objects, it would have been done.

        Don’t get me wrong.  I love that the idea is taking off and that it’s encouraging people to design and make stuff, but it’s going to be a long while before 3D printing is much more than a novelty.

        1. NOT filing a lawsuit is not “fostering innovation”.  In many ways, not doing so doe more to discourage real innovation than the lawsuit would.  If they filed, it may go to trial and they may win or lose.  If they don’t file, most people with the time and money to do research will work in other areas because of the uncertainty.   A better patent system is better for everyone.  Rightsholders would be more certain in court, and innovators would have  much clearer roadmap of whether they are working in a protected area of the field. 

          The other problem, of course, is your assumption that if a thing could be built, it would already have been done. 

          “I’m sorry Mr Dyson, we don’t believe your (patented) technology works.  If it was possible to make a better vacuum cleaner, Kirby or Electrolux would already have done so.  We are not interested.”

          If you are unfamiliar with the story, go check out how he FINALLY got his vacuum cleaner on the market – after over a decade of trying.The very idea that the absence of a product is evidence that it is either unwanted or impossible is at best, stupid and at worst, willful denial.  

          Verizon also said that nobody wanted a functional smart phone – that’s how ATT got the iPhone.  

          The technology to build a user-friendly programmable micro processor had existed as a patented technology for decades – but nobody had built one before the Arduino project took hold, and now they are everywhere.  The patents prevented an entire arm of the industry from evolving – thus depriving the manufacturers of additional revenue. 

          The laser printer was seen as a technical curiosity with little potential consumer market until Apple and Broderbund kicked off the desktop publishing boom.

          Patents are meant to be a method to reward innovation, not to be a lottery to be won when someone else figures out how to do something useful with your vague, overbroad concept.

          1. I made my comments as an engineer, a builder of things and as a follower of the rapid prototyping industry.

            Not all technologies are the same.  The advancement of microprocessors and ICs is in no way comparable to the evolution of, say, diesel engines.  There are basic physical constraints that can’t be overcome with a better manufacturing process.

            On the day that I can purchase a 3D printer for under $5,000 that can print aluminum at a comparable quality to a machined part, I’ll be the first person line.  That day, sadly, is decades away.

            Small CNC mills look promising however.

          2. Why do you maintain that standard when almost every thing you touch is plastic? 

            Z-Corp had a 3-d printer on the market 15 years ago that produces durable pseudo-plastic objects at high resolution for about $3000 dollars. Just  sayin’

          3.  I wish someone had told Dyson to bugger off, they’re truly awful vacuum cleaners.

          1. “Durable” is questionable for Zcorp if you plan on using it for anything besides aesthetics,

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  8. Shorter threat by patent lawyers:  “if we can’t file massively broad patents that cover the entirety of 3d printing in order to crush and monetize other people’s innovations without meddling kids throwing all this prior art in our faces then we are going to kneecap this young industry another way by filing a thousand ‘narrow’ patents that take away the right to innovate bit by bit.”

  9. Shakespeare’s line: ”The first thing we do, let’s kill all the lawyers,” Dick the Butcher in ”Henry VI,” Part II, act IV, Scene II, Line 73. – Don’t shoot the messenger.        

      How are we coming along with that?  

    1. Notice, please that it is a moron character that utters those words. Not a world famous author.

    2.  You do realize that that line is uttered by a traitor who is working to overthrow the king in the play, right?  You realize that Shakespeare wasn’t advocating that the lawyers be killed but rather was coming up with some ridiculous over-the-top thing that a delusional simpleton who is being used by someone smarter than himself as part of a larger plot might utter in the 1600s, right?

      Everyone knows that line – nobody realizes that it’s mocking the people who think it’s a good idea to actually kill all the lawyers.

  10. I wonder how much of the current patent-grab is just the old school manufacturing companies realizing that the trade secret method they’ve been using since the ’80s is going to get patented by someone else, and how much it’s someone just adding ‘3D printing’ to an existing manufacturing method.

  11. Alternative article title: “Help! Lawyers are acting like lawyers, so I, Cory Doctorow, saw this as a marketing opportunity to mention that I have a second-rate novel for sale!”

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