In order to demonstrate the very real problem 3D printing stakeholders face in the patent law realm, I will walk through several realistic hypothetical example and then analysis step by step to show how patent law operates and how it affects each of the actors’ actions. Understanding the intricate patent law is important, not only because it is necessary to show how people interact with the law, but because understanding how the law operates will signal the problem areas and may highlight possible solutions. Part A will examine the legal challenges that 3D printing will throw at patent law. Part B look at the economic effect and identify the fundamental problem the industry faces.
A. Hypothetical Example and Walk-through Legal Analysis.
William is an early adopter of technology and looks for the next best thing. He purchases a typical home desktop 3D printer for $1000. William purchased the printer because he is a “do-it-yourself” type guy looking to utilize the user generated content available on websites such as Thingiverse.[1] During a recent search on the website, William finds a CAD design for an eyeglass case. The equivalent eyeglass case can be found on Amazon for $20, but William does a quick mental calculation and concludes that it will cost him less than a dollar in material (and no shipping cost) to print his very own. He also has the added benefit of being able to customize the case, showcase his new toy to his friends, and print replacement parts if anything should break. The file was created and uploaded by an unknown party, CADMaster, receiving high acclaimed from other users. The eyeglass case is simple, consisting of 3 main components: (1) a top and bottom hard outer shells that protects the glass which are inside, (2) hinges that join the two shells and allow the case to be opened and closed, and (3) a shelf inside the case to secure the eyeglass in place. William enthusiastically downloads the CAD file, customizes the shell, and prints his first case.
William, CADMaster, and employees at Thingiverse all hear a recent news story that discussions about intellectual property concerns within the 3D printing industry. As law abiding citizens, they don’t want to break the law so they hire a patent attorney to figure out if any of their actions were illegal and under what circumstances they can continue to operate in the 3D printer industry.
The clients ask the patent attorney a typical questions; “did I infringe patent law though my actions, and will I be liable if I continue to operate in the same manner, and how can I comply with the law in the future.” The attorney might begin a “freedom to operate” (FTO) search which assesses his clients’ ability to continue to make and market products without authorization from a patent holder. The three main elements comprising an FTO is (1) to look at the existing product’s component parts, (2) search for the relevant patents, and (3) compared the relevant claims to the product.[2] This is often an iterative process that begins with broad preliminary searches to get the lay of the land. To find the relevant patents, the attorney will look at the government databases (USPTO.gov, WIPO.int, and EPO) and the commercial databases, such as Delphion, Dialog/Derwent (Thompson).
These FTO patent searches are common enough that let’s assume that the patent attorney identifies the single relevant utility patent covering the hinges used on the eyeglass case. The attorney now needs to compare the 3D printed eyeglass case with the patent claims to assess the likelihood of infringement. The patent examiner might also look into the validity of the patent if the stakes were high enough because an invalid patent is unenforceable. This is where the patent attorney earns his money so to speak. Under normal circumstances, assessing liability can be a difficult determination. With the introduction of the home desktop printer, legal and evidentiary issues complications increase by orders of magnitude.
1. Infringement in general
In general, patent infringement occurs when whoever, without authority makes, uses, offers to sell, or sells any patented invention within the United States or imports in to the United States any patent inventions during the term of the patent.[3] This requires a showing that the accused infringing product is covered within the scope of the patent claims. The task of determining whether the accused product is covered by a patent is not always straightforward. There are two doctrines that attorneys and courts use to help answer this question; literal infringement and the doctrine of equivalence.
Literal infringement requires that each and every element recited in a claim has identical, one to one correspondence with the allegedly infringing device or process. [4] The doctrine of equivalence “provides that an accused technology that does not literally meet the patent claim’s requirements may nevertheless be equivalent.” [5] This allows a patent owner to bring an infringement lawsuit even though each and every element of the patented invention is not identically present in the allegedly infringing product. [6] “Under the "all elements" rule, the doctrine of equivalents must be applied to each individual element of a claim, not to the invention as a whole. It is necessary to show that every element of the patented invention, or its substantial equivalent, is present in the accused product or process.” [7] This requires the court to evaluate the accused claim element at the time of the infringement and analyze the role played by each element in the context of the specific patent claim. “[T]o be a substantial equivalent, the substitute element must match the function, way, and result of the claimed element.” [8]
The doctrine of equivalence is further limited by the doctrine of prosecution history estoppel and prior art. The doctrine of prosecution history estoppel prevents a patent owner from recapturing substantial elements given up during prosecution of the patent.[9] These elements were usually given up to avoid rejection of the patent application based on the prior art. The prior art also limits the application of the doctrine of equivalents by not encompassing the prior art in the expansion of elements of the claims. A FTO analysis concerned with the doctrine of equivalence is expensive, time consuming, and often uncertain.
Claim construction is perhaps the more difficult and essential aspect to determine liability, regardless if the infringement is direct and indirect. Claim interpretation in a patent application requires an examination of the entire specification and prosecution history of the patent application. Claim construction issues have become such an important question, that the United States Supreme Court in Markman v. Westview Instruments Inc. decided that judges are better suited then juries to determine what a claim means.[10] Lower courts used Markman hearings to decide the meaning of the claims. These Markman hearings occur after discovery, but before trial and often is determinative of the outcome of the case. [11]Determining the scope of the patent is complex and highly uncertain, yet an essential step to answer the clients’ most basic question.
The next step again asks a very simple question: “which actors make, use, offer to sell, or sell the infringing design?”[12] However, the answer can be anything but simple. Direct infringement occurs when the accused infringer acts without the patent owner’s permission simply by making, using or selling a patented invention in the United States. [13] For there to be a finding of secondary infringement, there needs to be an actor who directly infringes the claims.[14] This complicates the task of an attorney advising his client on his FTO because he must also determine the liability of other relevant parties.
2. Direct and Indirect Infringement
Let’s continuing with the above hypothetical, and identify the potential liabilities of William, CADMaster, Thingiverse, and Shapeways. William made the eyeglass case which was covered by the patents exposing him to direct patent infringement. On the other hand, CADMaster would escape direct liability because merely sharing files does not violate a statutory protected act of making, using, or importing the invention.[15] Thingiverse is a passive web host that acts as in intermediary for sharing files. Much like CADMaster, the infringing acts require more than mere sharing of digital files to violate S 271(a). Services like Shapeways and Staples print the objects on behalf of the home consumer. This raises interesting questions about who is actually “making” the patented invention. If the agreement between Shapeways and the consumer looks like a rental agreement, then the home consumer may be deemed to have sufficient control for a court to find him liable as a direct infringer. If Shapeways is deemed to make the patented invention, then this might allow home consumers to escape direct infringement while Shapeways would be liable as a direct infringer who makes and sells the infringing product in violation of Section 271(a).[16]
Webhosts and 3D printing service present another complex challenge, indirect infringement. Indirect infringement is a theory that encompasses several theories of liability including contributory infringement and inducement.[17] The alleged contributory infringer must have (1) made or sold the component in question, (2) had knowledge of the non-staple nature of the component, (3) engaged in conduct (sales) within the United States that contributed to another’s direct infringement, and (4) the component must have no substantial non-infringing uses.[18]
The other form of indirect infringement extends liability for infringement to those who "actively induce" another to infringe a patent.[19] “Induced infringement is, in essence, ‘aiding and abetting another’s direct infringement’ and requires a showing that the defendant had the specific intent to cause another to infringe upon the patent in question.” [20]
In general, there are two ways that patent owners might go about using this cause of action. First is to go after the makers of the hardware, the actual 3D printer manufactures such as Makerbot and Stratasys. However, this is not very likely to succeed.
In C.R. Bard, Inc. v. Advanced Cardiovascular Systems, Inc., the court stated that a finding of “substantial non-infringing uses” will not allow the patent owner to impede access by the public to the article in question.[21] The “substantial non-infringing uses” of a 3D printer are many and numerous. The creations of any object in the public domain such as mugs, cell phone cases, hangers, are all non-infringing uses.
The second and more likely course of action is to go after web hosts (Thingiverse) and services (Shapeways) because they offer or sell component parts for patented inventions.[22] They would most likely have “deep pockets” whereas the users and consumers might be judgment proof. If the attorney continues his analysis of infringement, Shapeways is in a vulnerable position and should be most concerned with indirect infringement. However, for a patent owner to succeed on an indirect infringement claim he must show “that the contributory or inducing infringer had knowledge of the underlying patent and knowledge that infringement would result from their actions.” [23]
The Supreme Court held in Aro Mfg. Co. v. Convertible Top Replacement Co. that for the defendant to meet the requisite “knowledge” requirement, he needs to possess specific knowledge that the component which it is selling is specifically designed for a device that infringes a particulate identified patent.[24] This is a high standard that is difficult to prove. Shapeways could adopt policies that can eliminate, at least in theory, both contributory and inducement liability because of the requisite “knowledge” element that the patent owner is required to show would not exist.[25]
Thingiverse may also be concerned about litigation, but they would also lack the request “knowledge” for the patent owner to sustain a contributory infringement claim. As for inducement, they could adopt policies that minimize the risk of a court finding the requisite “specific intent” necessary for an inducement claim to succeed.
3. The Repair – Replace Doctrine
Successful repairs of devices and goods often rely on a small plastic or metal part that have been discontinued from mainstream production. This is where 3D printing can function in a beneficial way to 3D printer enthusiasts. If an inexpensive, but vital component part breaks or is damaged, the value of the entire product is greatly diminished. However, the cost of replacing the damaged part relative to the utility gained from making the entire nonfunctional product functional makes repairing and replacing parts a very practical and foreseeable use of 3D printers. 3D printer have the ability to manufacture replacement parts for broken or damages products very inexpensively. In addition, the consumer saves additional costs by not having to locate the parts or pay for a professional installation service to install the parts. With the adoption of 3D printers, consumers are more likely to turn to this as an alternative to physically searching for replacement parts or purchasing entirely new objects. A documented example of this occurring involves replacing part on a $ 1000 “Bugaboo” baby stroller. [26] The stroller’s handle brakes plus repair service cost around $ 250 for replacement. A 3D printed version of the same piece costs pennies on the dollar.
The high cost that retailers can charge for replacement parts and services arise from the scarcity of replacement parts. With the low cost of manufacturing, 3D printing will change the market for replacement parts, allowing consumers to create replacement parts at a cost below the manufacture and retail prices. An initial design could be created by simply scanning or creating using CAD software. After the initial design is uploaded, a consumer could simple download and print.
Along with the change in the replacement and service market, patent owners may now not be able to extract the full value of the patent when impermissible repairs occur. Patent holders retain the “right to reproduce or reconstruct a patented item entirely, or to use unapproved parts to repair or reconstruct the item.” [27] Although the purchaser of a patented object acquires the right to use and repair the object, knowing where the distinction between authorized repairs and illegal reconstructions occur is difficult to identify.[28]
“The Supreme Court in Aro I came the closest to defining the repair-replacement rule, but lower courts have problems applying the Aro I standard.”[29] The repair-replace doctrine is:
“[n]o element, not itself separately patented, that constitutes one of the elements of a combination patent is entitled to patent monopoly, however essential it may be . . . Mere replacement of individual unpatented parts, one at a time, whether of the same part repeatedly or different parts successively, is no more than the lawful right of the owner to repair his property.” [30]
As patent owners see a decrease in sales of the replacement parts or patent devices, they will likely seek to stop the consumer from cheaply manufacturing the parts. The consumer will likely not want to stop because of the cost savings and litigation will likely ensue. [31]
Let’s continue with the characters from the hypothetical to see how the repair-replace doctrine distinguishes between permissible and infringing acts. William was keenly aware of the benefits that 3D printing offers in the way of repairing and replacing parts for goods and appliances. Prior to investing in the 3D printer, William purchased a case from Amazon, a licensed distributor of the patent owner. The case is identical to the 3D printed case (except for the modifications that William made to the shell). Being an older case, the hinges wore down and plastic spring that acts to open and keep shut the case has broken. The top shell had an unsightly crack and was chipped. William decided to print the hinge and top shell and undertake the installation of the component parts himself.
In William’s situation, the repair-replace doctrine needs to be applied to the installation of the hinge and the top shell independently. The installation of the patent protected eyeglass hinge was not merely a replacement of an individual unpatented part, but an example of patent infringement. The replacement of the unprotected top shell would not have constituted infringement under the repair-replace doctrine.
Underlying the repair-reconstruction distinction is the principle of first sale, or exhaustion. The unrestricted sale of a patented article, by or with the authority of the patentee, "exhausts" the patentee's right to control further sale and use of that article by enforcing the patent under which it was first sold.”[32] The rational for the first sale doctrine is that the patent owner presumably received consideration for the first sale, which includes remuneration for the use and eventual resale of the product. The patent owner is not permitted to control the how the consumer uses the product after the value has been extracted by the patent owner.
As patent owners see a decrease in sales of the replacement parts or patent devices, they will likely seek to stop the consumer from cheaply manufacturing the parts. The consumer will likely not want to stop because of the cost savings and litigation will likely ensue. [33]
4. Conclusion
Infringement, claim construction, and the repair – replace doctrine are all important and complex issues removed from the 3D printing industry. Theoretically, the application of patent law doctrine to the 3D printing industry maps closely. But in practice, reaching any legal conclusion is going to rarely occur and enforcement will be extremely difficult and ineffective.
William and the thousands of users just like him do not have information available to them in a form that would allow them to distinguish between innocent use and infringing acts. The cost and expertise necessary to reach any legal conclusion is very high. It could take longer for an attorney to compete an FTO analysis and clear a user’s liability then it would take for the user to engineer, design, and print the part. The Internet compounds this problem by facilitating thousands of uploads and downloads of CAD files, many of which when printed would infringe a patent. Next, I will explore the causes of the problem in more depth and analyze the effect it has on the economics of the 3D industry.
B. Analyzed the Economic Effects of 3D Printing and Current Patent Law
So far I have highlighted many of the patent law problems that 3D printing will continue to face. The costs of information, specifically, the cost of knowing whether printing constitutes patent infringement is significantly greater than the benefits the user gains by utilizing this technology, e.g. the cost savings from printing verse purchasing from Amazon. With respect to 3D printing, patent rights are not clearly defined and bringing a patent infringement lawsuit will bring about uncertain results. However, mere uncertainty is not sufficient to propose somewhat comprehensive legislative reform. If it was just uncertainty in the law, then courts could establish clean tests and that would trickle through the legal community. The adverse economic effects of ill-defined property rights and unpredictable outcomes strike right at the heart economic issues. The cause of the problem is more fundamental; it is the technical nature of patent law that prohibits clearly defined patent rights.
The rationale behind patent law is to foster innovation in the market economy.[34] It rewards new, useful, and non-obvious inventions by granted the patent owner an enforceable property right to exclude others.[35] The fact that patent law deals with new and non-obvious technology is, by its very nature, highly technical. Large, sophisticated parties such as Pfizer and Microsoft are in situations where millions in research and development and legal departments make financial sense. The 3D printer industry, as it has been developing towards decentralized home use, cannot benefit from the economies of scale when dealing with complex, expensive patent issues.
The boundaries of the rights are often coached in technical language that requires a specialized understanding of patent law. The boundaries themselves are not set in stone and often cannot be known until they are compared with an alleged infringing product. Let’s take the hinge patent from the hypothetical and say that one element of the claim stated that the spring constant (an engineering property of a spring) needed to be between .05N/m and .09N/m. William found another CAD design identical to the patented hinge except the spring constant is .1N/m. This seems to clearly fall outside the scope of the patent. How can .1N/m infringe the range .05-.09N/m? This however is not determinative on its face because of the doctrine of equivalents. In Warner-Jenkinson, the Federal Circuit indicated that absent prosecution history estoppel, a pH of 5.0 could be equivalent to a pH of approximately 6.0 in the context of the claims which claims the pH range of 6 - 9.[36]
The Federal Circuit explained the necessity of the doctrine of equivalents and why the boundaries of patents are not always clear is because “one cannot predict the future.”[37]
“Due to the technological advances, a variant may constitute so insubstantial a change from what is claimed in the patent that it should be held to be infringement. Such a variant, based on after-developed technology, could have been disclosed in the patent.”[38]
Some legal academics have commented that the “court is not providing sufficient guidance on claim construction” and that they “have not evolved any clear canons of claim construction to aid district court judges, and in fact the Federal Circuit judges seem to disagree among themselves regarding the tools available for claim construction.” [39]
This unpredictability of all of these cases, even among the Federal Circuit judges whose job is to hear patent appeals, shows that it is next to impossible for the average lay person to distinguish between what is patent protected and what is in the public domain.
These ambiguous property rights have and will continue to lead to prohibitably high transaction costs inhibiting market transactions to take place. It will manifest itself in two ways. First, the home consumer and patent owner will not directly license with each other. An understanding of the Coase Theorem will show why licenses between the parties will not occur.
The Coase Theorem states that “if one assumes rationality, no transaction costs, and no legal impediments to bargaining, all misallocations of resources would be fully cured in the market by bargains.”[40] Transaction costs, broadly defined, refer to all impediments to efficient contracting, including the costs of establishing and enforcing property rights. [41] This implies that the market can deal with imperfections in the allocation of an economic resource, provided that entitlements to the resource are well defined. [42] However, patent rights are not well defined. Sophisticated parties such as judges, patent attorneys, and the PTO often disagree about the meets and bounds of a patent claim. The average non-attorney requires knowledge that is costly to obtain. Patent searches, determining the scope of the patent, and gaining an expertise sufficient to make determinations of the many legal issues raise the transaction costs and thereby eliminate the operation of markets. If a patent owners release official 3D CAD files to the public, currently this would not be a viable business strategy given the current state of the DRM and 3D scanning technology. However, if patent law or a neighboring law protected the DRM, then the license rights would be clear and transactions could occur in the market. (More detail in Part IV)
Second, the formation of patent pools with the purpose of licensing patent rights to 3D printer consumers will be substantially hampered. A patent pool is “an agreement between two or more patent owners to license one or more of their patents to one another or third parties.”[43] The formation of these patent pool agreements allows companies and industries to overcome the hold-out problem.[44] The hold-out problem arises when a company tries to integrate multiple patents into a single product. If a signal patent owner holds-out for more royalties, then the whole project gets jeopardized and the product won’t get released. Patent pools solve the problem of negotiating with every patent owner and the “hold out” problem by agreeing on the terms of the license before entering the pool.[45] The pool can then benefit from the decrease in transaction costs and standardization of technology.
The best way to analysis the problems that 3D patent pooling faces is to compare the 3D printing industry with another industry that successfully utilizes IP pooling. In the music industry, copyright law protects the rights of authors. The market for music, like 3D printing, contains thousands of individual “sellers” seeking to deal with thousands of “buyers.” This leads to high transaction costs. However, in the music industry sellers are able to form large groups that spread the transaction costs of identical transactions over a larger group. [46] The “pooling” of copyrighted works form large organizations like BMI and ASCAP. These organizations act like a central hub offering blanket licenses to the consumers. [47] These blanket licenses shield the licensee from copyright liability from any of the protected works assembled by the pool. However, the 3D printing industry really cannot form these large organizations because the scope of the patent license in not known. Unlike the music industry where copyright infringement often takes the form of an identical/verbatim copying of the protected work, patent infringement often takes on new forms that cross industries and applications.[48] In general, the determination of copyright infringement does not require expert knowledge. Whereas patent infringement is not often identical, and it requires an understanding of the various doctrines.
Another thing to consider is the motives of the parties to the transaction. The patent owner doesn’t want to enter into an agreement in a patent pool because they may not know how much they are giving up. The consumers would not want to pay for license where they don’t know what they are getting and what it will cover.
Blocking patents present a unique challenge to patent law. A blocking patent occurs when an existing patent is improved and the improvement merits a patent, independent of the original. This differs substantially from copyright law where the original owner of the original copyrighted work has the exclusive right to prepare derivative works. [49] Blocking patents leads to scenarios where desire to use the improved patent requires permission from the owners from both the original and the improved patent.[50] Patent pools and cross licensing would be how other industries deal solve this problem, but as I showed above, they are unlikely to be a viable option. Blocking patents lead to costly negotiations and can possibly deny the use of the improvement by anyone. The scenario of a blocking patent can be difficult for the 3D printing consumer to identify, and would be next to impossible to separately negotiate a license with both patent owners.
The problems are clear and the solutions fleeting. I believe that only with a better understanding of the 3D industry and how people interact online can such a daunting task be addressed.
[1] Davis Doherty, Downloading Infringement: Patent Law As A Roadblock to the 3d Printing Revolution, 26 Harv. J.L. & Tech. 353, 361 (2012).
[2] Morgan Lewis, Emerging Life Science Companies; Chapter 7
[3] 35 U.S.C. § 271(a)
[4] 35 U.S.C. § 271
[5] Lucas S. Osborn, Regulating Three – Dimensional Printing: The Converging Worlds of Bits and Atoms, DRAFT ‐‐ 51 San Diego L. Rev ___ (spring 2014).
[6] Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co., 520 U.S. 17, 21, 117 S. Ct. 1040, 1045, 137 L. Ed. 2d 146 (1997)
[7] Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co.
[8] Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co.
[9] Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co.
[10] Markman v. Westview Instruments, Inc., 517 U.S. 370, 371, 116 S. Ct. 1384, 1387, 134 L. Ed. 2d 577 (1996)
[11] Kimberly A. Moore, Markman Eight Years Later: Is Claim Construction More Predictable?, 9 Lewis & Clark L. Rev. 231, 247 (2005)
[12] Davis Doherty, Downloading Infringement: Patent Law As A Roadblock to the 3d Printing Revolution, 26 Harv. J.L. & Tech. 353, 361 (2012).
[13] 35 U.S.C. § 271 (a)
[14] Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 522, 92 S. Ct. 1700, 1704, 32 L. Ed. 2d 273 (1972).
[15] 35 U.S.C. § 271(a)
[16] Davis Doherty, Downloading Infringement: Patent Law As A Roadblock to the 3d Printing Revolution, 26 Harv. J.L. & Tech. 353, 361 (2012).
[17] 35 U.S.C. § 271(c) extends liability to contributory infringers who meet the 4 element test
[18] 35 U.S.C. § 271(c)
[19] 35 U.S.C. § 271(b)
[20] Patent law and 3D printing
[21] C.R. Bard, Inc. v. Advanced Cardiovascular Sys., Inc., 911 F.2d 670, 673 (Fed. Cir. 1990).
[22] Davis Doherty, Downloading Infringement: Patent Law As A Roadblock to the 3d Printing Revolution, 26 Harv. J.L. & Tech. 353, 361 (2012).
[23] Davis Doherty, Downloading Infringement: Patent Law As A Roadblock to the 3d Printing Revolution, 26 Harv. J.L. & Tech. 353, 361 (2012).
[24] Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U.S. 336, 341, 81 S. Ct. 599, 602, 5 L. Ed. 2d 592 (1961).
[25] Davis Doherty, Downloading Infringement: Patent Law As A Roadblock to the 3d Printing Revolution, 26 Harv. J.L. & Tech. 353, 361 (2012).
[26] Kelsey B. Wilbanks, The Challenges of 3d Printing to the Repair-Reconstruction Doctrine in Patent Law, 20 Geo. Mason L. Rev. 1147, 1148 (2013).
[27] Kelsey B. Wilbanks, The Challenges of 3d Printing to the Repair-Reconstruction Doctrine in Patent Law, 20 Geo. Mason L. Rev. 1147, 1148 (2013).
[28] Kelsey B. Wilbanks, The Challenges of 3d Printing to the Repair-Reconstruction Doctrine in Patent Law, 20 Geo. Mason L. Rev. 1147, 1148 (2013).
[29] See Aro Mfg. Co. v. Convertible Top Replacement Co. (Aro I), 365 U.S. 336, 346 (1961).
[30] Aro I, 365 U.S. at 345-46.
[31] Kelsey B. Wilbanks, The Challenges of 3d Printing to the Repair-Reconstruction Doctrine in Patent Law, 20 Geo. Mason L. Rev. 1147, 1148 (2013).
[32]http://nysstlc.syr.edu/Law_Resources/Law_Library/Patent/Repair_vs_Resconstruction/RVR.aspx
[33] Kelsey B. Wilbanks, The Challenges of 3d Printing to the Repair-Reconstruction Doctrine in Patent Law, 20 Geo. Mason L. Rev. 1147, 1148 (2013).
[34] Corinne Langinier and GianCarlo Moschini, The Economics of Patents: An Overview.
[35] 35 U.S.C. § 101 - § 103.
[36] Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co., 520 U.S. 17, 21, 117 S. Ct. 1040, 1045, 137 L. Ed. 2d 146 (1997).
[37] Chiuminatta Concrete Concepts, Inc. Cardinal Industries, 145 F.3d 1303, 1310 (Fed. Cir. 1998).
[38] Chiuminatta Concrete Concepts, Inc. Cardinal Industries, 145 F.3d 1303, 1310 (Fed. Cir. 1998).
[39] Kimberly A. Moore, Markman Eight Years Later: Is Claim Construction More Predictable?, 9 Lewis & Clark L. Rev. 231, 247 (2005).
[40] Ronald H Coase, ‘The Problem of Social Cost’ (1960) Journal of Law and Economics
[41] David Lindsay, The Economics of Copying: The law and economics of copyright, contract and mass market licenses.
[42] David Lindsay, The Economics of Copying: The law and economics of copyright, contract and mass market licenses.
[44] Richard J. Gilbert, Antitrust for Patent Pools: A Century of Policy Evolution, 2004 Stan. Tech. L. Rev. 3, 92 (2004).
[45] Richard J. Gilbert, Antitrust for Patent Pools: A Century of Policy Evolution, 2004 Stan. Tech. L. Rev. 3, 92 (2004).
[46] Broad. Music, Inc. v. Moor-Law, Inc., 484 F. Supp. 357, 360 (D. Del. 1980).
[47] Broad. Music, Inc. v. Moor-Law, Inc., 484 F. Supp. 357, 360 (D. Del. 1980).
[48] Lucas S. Osborn, Regulating Three – Dimensional Printing: The Converging Worlds of Bits and Atoms, DRAFT ‐‐ 51 San Diego L. Rev ___ (spring 2014).
[49] 17 U.S.C. § 106.
[50] Charles W. Adams, Allocating Patent Rights Between Earlier and Later Inventions, 54 St. Louis U. L.J. 55, 59 (2009).