MakerBot Files For Patent On A Design Derived From Work By Its Community

from the sharing-is-good dept

Wed, May 28th 2014 11:06am — Glyn Moody

As Techdirt noted a couple of years ago, patents have been the bane of the 3D printing world, holding it back for years, possibly decades. Now it looks like patents have reared their ugly head again in this world:

In a stunning display of madness, makerbot industries files a patent application on a mechanism clearly derived from content created by their users. What's almost worse is the article they wrote praising the invention, presumably while they were filing the paperwork.

MakerBot is one of the key companies in the low-cost 3D printing market. It was founded in 2009 and based its first model on the completely open RepRap design. However, in 2012, MakerBot moved away from its open source roots, claiming that it needed to make this shift in order to build a long-term business: We are going to be as open as we possibly can while building a sustainable business. We are going to continue to respect licenses and continue to contribute to the open technology of 3D printing, some of which we initiated. We don't want to abuse the goodwill and support of our community. We love what we do, we love sharing, and we love what our community creates.
Most of the community seemed resigned to accepting that explanation, and have continued to post designs under various licenses to MakerBot's Thingiverse site for others to use and build on. In the case of the mechanism referred to above, the Replicator 2 extruder upgrade, the license employed is CC Attribution-ShareAlike (CC-BY-SA). It's a liberal license that allows people to do pretty much what they like with the design, provided they give attribution and pass on the same freedoms to any modified versions. But there is one important caveat: No additional restrictions -- You may not apply legal terms or technological measures that legally restrict others from doing anything the license permits.
That raises the question whether a patent on the physical object derived from a design released under CC-BY-SA constitutes an additional restriction. Independently of that, there's also the issue of prior art. MakerBot's own blog post on the new extruder notes that several people contributed to the mechanism over a period of time: Thing #42250 "Replicator 2 Extruder Upgrade" by whpthomas, is one of these very useful designs. It's based on an extruder mod from Thingiverse superstar emmett, who based his design on one from another star user, whosawhatsis.
Although prior art ought to ensure the patent was not granted, we know it doesn't always work like that. But even if MakerBot succeeds in gaining and holding on to patents derived from designs posted to its Thingiverse, it is likely to be a Pyrrhic victory unless the company issues a statement that the patent is purely for defensive purposes, and offers an appropriate license for people to use. If it doesn't, the community's trust in the company, already strained by the move away from open hardware, will almost certainly be gone. That's particularly regrettable given the company's origins, and the following speech from 2012 by company co-founder Bre Pettis on the advantages of sharing, transcribed here by Hack a Day: When we started MakerBot, we knew we were going to be open source hardware. We were inspired by Arduino, and we were open source software nerds. So, we knew the idea if we could make it and share it, we'd get more back from it. And I think this is something we learned as kids, that sharing is good, that if you share something you get more back from it, but we forget this as adults. So, with open source hardware we're back to that. When you get a MakerBot, you're not just getting a machine, you're getting the knowledge of how it works. You're getting the information about everything that puts it together. So if you want to modify it, or if you just want to learn about it, if you want to hack it, you can do it.
Unless it's been patented by MakerBot, of course...

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Filed Under: 3d printing, community, derivative works, open source, patents, sharing
Companies: makerbot

27 Comments

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jackn, 28 May 2014 @ 11:14am

"We are going to be as open as we possibly can while building a sustainable business. We are going to continue to respect licenses and continue to contribute to the open technology of 3D printing, some of which we initiated. We don't want to abuse the goodwill and support of our community. We love what we do, we love sharing, and we love what our community creates."

In other words, "So long and thanks for all the fish"
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Anonymous Coward, 28 May 2014 @ 11:27am

behold anti techdirt trolls: what actual intellectual property theft looks like, with the patent system itself being the tool for this attempt at thievery
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Anonymous Coward, 28 May 2014 @ 11:33am

Makerbot are not in charge of their own destiny any more. From Wikipedia: "On June 19, 2013, Stratasys Incorporated announced that it had acquired MakerBot in a stock deal worth $403 million, based on the current share value of Stratasys. The deal provided that MakerBot would operate as a distinct brand and subsidiary of Stratasys, serving the consumer and desktop market segments."

SSYS are in the driving seat, it's not a surprise that this should happen. This is not a comment on the rights or wrongs, just what happens when a scramble for $$$ and ownership of an industry becomes the driving force.
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ThankingEwe, 28 May 2014 @ 11:40am

#TakerBot
Thank you Glyn Moody for posting this article. The maker community and the 3D printing communities are somewhat small in number, although growing. We alone cannot stand against the vast resources of Stratasys and TakerBot. But with the help of the TechDirt and EFF communities - we might be able to make a smidgen of difference - which could then have echos of repercussions world-wide. Let #Takerbot go down in flames.
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Anonymous Coward, 28 May 2014 @ 11:46am

prior art in a first to file world
The US patent system is now "first to file". Doesn't that necessarily make prior art less of an obstacle?
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Rich, 28 May 2014 @ 12:14pm

Re: prior art in a first to file world
How does "first to file" preclude prior art?
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mcinsand, 28 May 2014 @ 12:20pm

Re: prior art in a first to file world
'First to file' is affected by previous patent filings, but not by prior art. If the maker community has publicly disclosed the invention or particularly if the maker community has sold any of said invention to others, then the patent should be invalid. Some countries will allow for one year after disclosure or sale, but not all.

Another issue is whether any of the community contributed to filings conception or reduction to practice. If those members' names are not on the filing as co-inventors, then this filing is an act of fraud.
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John Fenderson (profile), 28 May 2014 @ 12:31pm

Even then
it is likely to be a Pyrrhic victory unless the company issues a statement that the patent is purely for defensive purposes, and offers an appropriate license for people to use.

Even if they do this, it will not redeem them in my view. "Defensive" patents don't seem to stay that way (because the patent owner changes their mind, because the patent is sold to someone else, or because the company itself gets sold), and they further the breakage of the patent system.

A bad patent is a bad patent. Declaring it to be "defensive" and offering cheap or free licensing doesn't change that.

Shame on MakerBot.
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Anonymous Coward, 28 May 2014 @ 12:33pm

Re: prior art in a first to file world
no. First to file is about who gets a patent, when two entities invent a similar device, and keep it secret.

In the event an idea is published, such as posting on the makerbot website, the publisher has 1 year to file a patent. If a patent is applied for by an entitiy other than the one that published the idea, they would need to show that they had the idea prior to the publication date.

Otherwise, prior art still applies.
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Anonymous Coward, 28 May 2014 @ 12:41pm

Re: Re: prior art in a first to file world
So if the one year elapses then no one can file any patent on it and the disclosure is considered prior art?

If so what we need to do is quickly start a forum and put as many inventions as possible releasing them under a free and open license so that they can constitute prior art.
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Anonymous Coward, 28 May 2014 @ 12:53pm

Re: Even then
"Even if they do this, it will not redeem them in my view. "Defensive" patents don't seem to stay that way (because the patent owner changes their mind, because the patent is sold to someone else, or because the company itself gets sold)"

That's a problem with the patent system itself. I see nothing wrong with getting defensive patents.

A: They give you cross licensing bargaining power. Those that demand royalties from patents will be more likely to cross license with you than to try and sue you for infringement. While this hurts the little guy without a large patent portfolio and favors you that's not a wrong of the person with defensive patents that's a wrong of the patent system itself.

B: They give you counter-suing power. If someone sues you for infringement you can counter-sue. This will deter others from suing you.

C: It prevents others from getting those patents first and suing you.

Yes, I completely agree that these examples are an abuse of the patent system and shows how the patent system is broken but I see nothing wrong with someone getting a defensive patent for these purposes so long as they are not patent aggressors and they don't go around using those patents to either deter others from competing or to demand money from competitors. The wrong being committed here is on the part of the patent system and not on the part of the defensive patent holders.

One big problem with the patent system is when companies go out of business and liquidate then their patents get auctioned off. This does little to promote the progress. Those patents should enter the public domain upon the company going out of business. Companies do not have incentive to get patents to promote the progress in the event that when they liquidate they will be better able to pay off their debtors.
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Kenneth Michaels, 28 May 2014 @ 12:58pm

Improvements
The Makerbot post claimed to have improved on the community design. I have not read everything, but it is possible that the Makerbot patent application is limited to the improvement on the community design, leaving the community design for anyone to implement (just not with the improvement).

Nonetheless, the inventors should have cited the community design as prior art, which they have not done to date.
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John Fenderson (profile), 28 May 2014 @ 1:00pm

Re: Re: Even then
I do see something wrong with "defensive" patents. Even aside from the objection I note above (that they won't remain "defensive"), it's straight-up patent abuse: "defensive" patents are almost by definition bad patents. If they were good patents, there'd be no need to try and make them palatable by calling them "defensive".

"They give you counter-suing power. If someone sues you for infringement you can counter-sue. This will deter others from suing you."

And that's part of the problem -- it means that defensive patents are only useful for large or wealthy companies. The very companies that are likely to abuse the patents.

In short, a bad patent is a bad patent. Knowingly trying to get a bad patent is the action of a bad player -- no matter how well-intentioned they may be.
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alternatives(), 28 May 2014 @ 1:08pm

Re: Re: prior art in a first to file world
an act of fraud.

You are saying fraud like it somehow matters.
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Anonymous Coward, 28 May 2014 @ 1:24pm

Re:
one of the original founders (forget his name, sorry) is adamantly opposed to this direction, and was essentially forced out of the company over these issues...

one of the other founders -the bre guy quoted- is still there, and -apparently- has got a case of swolded-up skull, and wants to rule the maker bot universe...

really sucks that there is little-to-no-protections for people who WANT to give away their inventions/etc without Big Maker (?, Big Anybody) being able to swoop in and lock everyone else out...
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Anonymous Coward, 28 May 2014 @ 1:29pm

Re: Re:
so, is techdirt fucking me over, or is there a gremlin in the system ?
my posts are not showing up under my moniker (not that i care that much, mostly a matter of principle), but *are* appearing as anonymous...
i get some weird message when i go to post about registering, blah blah blah, but i am registered, i am signed in (it tells me that, anyway), but i still get shunted off into anonymousland...

either your system is munged, OR you are practicing some sort of chickenshit game with me...
i am hoping it is the former, so i might retain respect for you guys...
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Anonymous Coward, 28 May 2014 @ 2:05pm

Re: Re: Even then
but I see nothing wrong with someone getting a defensive patent for these purposes so long as they are not patent aggressors

Small companies getting patents often end up adding the patents to those used for aggressive purposes because either they go bust and the patents are sold on, or they are bought out by a big corporation who will then use the patents to crush the opposition.
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Anonymous Coward, 28 May 2014 @ 2:08pm

Re: Improvements
The Makerbot post claimed to have improved on the community design.

In which case the SA clause in the license prohibits them patenting it, and requires them to allow others to use the design and improve on it.
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FauxReal (profile), 28 May 2014 @ 3:52pm

The first link has a link to another site that documents similar efforts by MakerBot.

http://www.openbeamusa.com/blog/2014/5/22/stay-classy-makerbot
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Anonymous Coward, 28 May 2014 @ 11:56pm

It won't be long before MakerBot starts implementing DRM into their hardware and software.
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Tice with a J (profile), 29 May 2014 @ 12:50am

DPL
Makerbot can still redeem themselves. They just need to get a Defensive Patent License.

http://www.defensivepatentlicense.com/
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Anonymous Coward, 29 May 2014 @ 5:56am

Re: Re: Re:
If it were me, I would want to actually contact TD privately and ask what the issue might be, rather than fly off the handle with assumed accusations. But that might just be me.
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Anonymous Coward, 29 May 2014 @ 8:16am

Re: Re: Re: Re:
so, i'm 'embarrassing' techdirt by bringing this up semi-publicly ?
if they are not doing so, you'd think they would say so...
(given there is no response, what should i suspect ?)
and, if they ARE, then they DESERVE to be embarrassed by such a chickenshit action...

the further point being, that i was saying it semi-publicly in case any other kampers had noticed something similar...

(which is happening again with this post *and* happens at work computer and home computer and tablet: signed in, didnt' give any error or other indication it didn't take, and it is not posting this under my name, but as anonymous...)

sorry to wilt your boutonniere...
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John Fenderson (profile), 29 May 2014 @ 8:33am

Re: Re: Re: Re: Re:
Not embarrassing at all. Just offtopic and of no interest to people who aren't having difficulties. Also, if you really want to resolve your issue, you'd get much better results actually contacting the site admin rather than posting a comment about it.
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Matthew Rimmer, 29 May 2014 @ 6:11pm

The Duty of Candour
This is a superb piece by Glyn Moody on patent law and 3D printing. I wonder whether there is an issue here about the duty of candour. Have MakerBot identified the inventors of the patent application properly? Furthermore, this case raises issues about prior art, novelty, and inventive step - given the publications.
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anon, 29 Jul 2014 @ 10:52pm

being stuck anon
so.. you're comments are being stuck as anon.. simple

-hey, dunno whats going on, but my posts are all anon now.. anyway, here's what i ACTUALLY have to say...

litterally accusing them of doing something specific to you, is A) -likely- paranoid, especially since as far as i can tell, you weren't attacking them at all, so they should have NO grounds to do anything of the sort
B) kinda a chickenshit way of going about things..

yes, i'm remaining anon myself, on purpose, because i only got here because i was reading about this, and don't currently feel like registering
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KevinM, 30 Dec 2014 @ 9:00pm

Re:
Yea, Bill Gates said something similar after he ripped off DOS. However he did not openly start out as open source and then when you got what you wanted out of the community you claim to love you stole what they gave you and claimed it as yours!
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