MBI received a patent (#8,226,395) on the ABP - what now?

[W. Craig Trader]

http://www.patentgenius.com/patent/8226395.html

MakerBot Industries (MBI) has received a US patent (#8,226,395) on their Automated Build Platform (ABP).

I'm not going to recite the claims, but here's the abstract:

A conveyor or other transport mechanism is provided to support multiple, sequential builds from a three-dimensional fabrication machine. The conveyor may be heated/cooled, coated, or otherwise treated to assist in adhesion during a build, as well as removal of objects after a build. Each fabricated object may be automatically removed from the conveyor as the conveyor moves in order to restore a buildable surface for fabrication of additional objects.

The ABP was available from MBI on their Thing-O-Matic (TOM) 3D printer, and was largely ignored by the 3D printing community because as delivered, it doesn't work very well.  A lot of community members have spent a lot of time and energy trying to modify their ABPs to work as intended -- replacing the plastic conveyor belt with steel or titanium foil, adding all manner of levelers and belt tighteners -- with those efforts largely documented on Thingiverse, and generally licensed with the Creative Commons - Share Alike license (see http://www.thingiverse.com/search?q=ABP).

Now we find that MBI has patented the ABP -- what are the legal consequences?

• For starters, when I bought my TOM kit, nothing was said about patents pending, do I need a license to use my TOM's ABP?  (Presumably not).
• As it happens, I printed and built several modifications to my ABP to make it more reliable and easier to use -- and I now in violation of the '395 patent?
• What about the inventors who offered up all of those improvements to the ABP, are they now in violation of the '395 patent?
• MBI open-sourced the designs for the TOM (and the ABP).  What happens to anyone who built (and more importantly, offered for sale) a non-MBI TOM/ABP?

Frankly, one of the reasons I originally bought from MakerBot was that it was open source -- this leaves me gravely disappointed.

[Dan Newman]

> Frankly, one of the reasons I originally bought from MakerBot was that it
> was open source -- this leaves me gravely disappointed.

This really shouldn't be news to anyone. I remember coming across this in
2011 when doing some searches of public patent application databases.
I'm not saying that you should have or even should have been expected to do
that yourself. I'm merely pointing out that this is really quite old news
(as in 18+ months old) and that for people like myself (and Jetty, I believe)
who make a habit of looking through new patent applications by searching under
company and individual names, this is old news. Indeed, Makerware as a mark
being applied for by MBI hit the public databases in very early September.
You can learn alot about what companies are up to by doing periodic searches
of these public repositories.

Dan

[PropellerScience]

I wouldn't worry about it, you can build anything you want regardless
if it's patented. Selling it is a different matter.
People read Bre's latest blog post yet?
http://www.makerbot.com/blog/2012/09/24/lets-try-that-again/

[RocketSled]

Patents protect the holder from financial loss as a result of another entity making unauthorized use of the patented Intellectual Property. An individual is free to use the IP themselves, so long as their actions don't cost the patent holder $.  Meaning, you can make one for yourself but you can't sell or give away copies that you make to anyone else, or sell or give away derivative "things" that contain the IP that you've copied.  But if you buy the IP, you are free to modify it however you please.  And you can resell that.  You can also sell modifications to be used with the IP (provided you don't sell the IP).  The original seller can however invalidate your warranty if modifications are made.  

My understanding of Open Source is that it can't be patented.  You can't retroactively change that unless you can prove that whoever made it OS didn't actually have the rights to do that.  The ABP they're patenting now must be different in some fundamental way from the one they OS'd with the TOM...

You bought you ABP from the same entity that now holds a patent on the design, so you should be default-grandfathered, anyway.

[Elbot]

Makerware software has controls for an ABP. If they make a ABP for the Replicator 1, I'll buy one immediately. That would mean you'd have a mini factory in your home and/or office. It's a very powerful device.

I hope they don't make the ABP exclusively for the Replicator 2.

Hey you guys know the dimensions of the Replicator 2? Is it identical to the Replicator 1? If so, I'll have a better shot at getting a ABP for my Replicator.

Thanks!

[lassikin]

that's not quite true, you can't make things with a patented process and sell them without being in violation, regardless if you built the patented thing yourself. you can build patented objects for research but that's actually very limited. the patent owner can ignore pursuing licensing however.

I'm fairly new to this, but wasn't thingomatic with abp released before that patent was filed for?

Anyhow, Bre would be better off waiting that independent sources verify his "it just works" claims about rep2, since he pretty much claimed that already about rep1(while it works, I wouldn't cal lit "just works") - so if it's really Groundbreaking in the sense that it just works like an expensive stratasys machine, but currently there's not that much to see about it being groundbreaking(pla with fan cooling has been available).

-lassi

[Ben_R]

MakerWare has no controls for an ABP -- the background service that connects the UI to the slicing engine and to the printer is called "Conveyor."

It's not an ABP controller.

[Jordan Miller]

I think there is a big misconception in the open source community about the nature of patents. Patents themselves shouldn't be assumed to be evil.

A patent is like a knife. it can be used to feed a family, defend your rights, or stab someone in the back.

The intent you have behind patents is what matters and if your company plans to enforce them on individual makers or other companies or automatically issue liberal licenses to them.

Some open source companies get patents *specifically* to legally ensure people keep the design open.

Jay Keasling at UCSF used patenting of his yeast production of a malaria treatment with liberal licensing to ensure that the treatment was made for the least overhead possible to treat the most people. That is definitely winning with patents.

There was a great talk at OHS about patents.

jordan

On Sep 28, 2012, at 6:40 AM, Mark Cohen <markc...@gmail.com> wrote:

Just ask rich their lawyer.
Im pretty sure you only need to worry about it after you make a few million dollars

On Sep 27, 2012 8:40 PM, "Chooch" <brianp...@gmail.com> wrote:

I don't understand if they can legally patent that device because it has a GNU/GPL license that was released prior to the patent.

see GNU/GPL licences and patents: http://www.gnu.org/copyleft/gpl.html 

That being said, I have a new version of this http://www.thingiverse.com/thing:4189  that i've been working on for quite sometime. Also a new printer that it will go in, but i'm not sure if MBI could potentially come after me for using automated conveyor technology.

Looks like I need to talk to a lawyer.

Cheers,

Brian

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[Chooch]

All very true. Maybe I should talk to Hoeken to see what their intentions were initially, while also in parallel looking into the legal aspect, because despite their initial intentions, shareholders could weigh in and say we need to go after this guy, because he made a better printer than our new flagship printer etc.

[Martin Galese]

This is a great point and something I've been thinking about.

The power of the GPL and other open source software and content licenses stems in great part from the reach and extent of modern copyright law, wherein almost anything is both eligible for protection and automatically protected.  When pushed on the enforceability of the GPL, for example, the response from legal nerds (like me) has often been that absent the license provided by the GPL there would be no right to copy, so you either have to accept the terms of the license or risk copyright infringement liability.

One potential issue with open source hardware, though, is that patents just don't work like this.  They are far more limited and you have to spend a great deal of money to get a good one.  Absent a patent, I have a right to copy any and all functional aspects of your design.  You can post as many CC-NC, etc. requirements as you'd like on the design--it's not at all clear to me what legal force those could have to restrict me in my use and commercialization of your publicly disclosed work.  Unless, you have a patent.  Then, unless I have a license from you, I would likely be infringing your patent to copy the functional aspects.  And then I have to comply with your license terms, including the open source hardware language.

(IAAL, but I'm not your lawyer. On other words, "I assume no responsibility for the accuracy or timeliness of any information provided herein. The information contained herein is for informational purposes only and is not legal advice or a substitute for legal counsel. You should not act upon this information without seeking professional counsel.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.") 

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[Jordan Miller]

i dunno. lots of people in reprap pointed out that since US is still first to invent, and apparently makerbot did not invent it (conveyor belt print surface was on the reprap forums before makerbot did it apparentl), their patent may not ever hold up in court anyway.

i don't know any of the specifics but it is an interesting point.

jordan

On Sep 28, 2012, at 10:49 AM, Chooch wrote:

> All very true. Maybe I should talk to Hoeken to see what their intentions were initially, while also in parallel looking into the legal aspect, because despite their initial intentions, shareholders could weigh in and say we need to go after this guy, because he made a better printer than our new flagship printer etc.
>

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[Joseph Chiu]

The Leahy-Smith America Invents Act was passed last year (Sep 16, 2011), changing the U.S. to First-inventor-to-file.    

( http://en.wikipedia.org/wiki/Leahy-Smith_America_Invents_Act ) -- the USPTO took great pains to stress that it's not simply "first to file" (presumably to try to lessen the impact of patent trolls).

As already pointed out by others, the patent by itself doesn't mean you wouldn't be able to have your own ABP design -- MBI could assert their patent in various ways -- including possibly licensed for free and freely licensed.

To the extent there are any prior art for using a conveyor with a 3D printer, that could invalidate their patent.

IANAL.  Consult your own counsel.

[Jordan Miller]

ya but i thought the law didn't take effect yet. isn't it for some time in the future? but coming very soon iirc.

[Joseph Chiu]

Oh, yes, good point.  The cut-off date is March 16, 2013.

[Chooch]

Jordan, do you have any specific links to those reprap initiatives? I would have to be able to prove that they occurred prior to Charles Pax's designs. All this stuff is really just in case, honestly its up to the bearer(s) to enforce, so I could just come out with it and see what happens. It would look extremely bad if they were to stifle open source innovation. Probably wouldn't be worth the bad publicity for the company.

[Jordan Miller]

search the reprap forums. that's where i heard it was discussed.

jordan

On Sep 28, 2012, at 1:36 PM, Chooch wrote:

> Jordan, do you have any specific links to those reprap initiatives? I would have to be able to prove that they occurred prior to Charles Pax's designs. All this stuff is really just in case, honestly its up to the bearer(s) to enforce, so I could just come out with it and see what happens. It would look extremely bad if they were to stifle open source innovation. Probably wouldn't be worth the bad publicity for the company.
>

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[Cymon]

Couple of questions. I was told I couldn't patent something because I published it on thingiverse, but they published their ABP on thingiverse and managed to patent it. How?

Also, where can I search the patents people are applying for?

[Martin Galese]

Cymon,

Pending patent applications are typically published 18 months after they are filed.  Until then, they are not public.  (If you only file for a patent in the U.S., you can generally keep the application private until it issues as a patent.)  You can find out about free access here:  http://www.uspto.gov/patents/process/search/access.jsp

This also a source for new patents in this space: http://www.additive3d.com/rec_pat.htm

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[Mike Payson]

This is FALSE. You cannot legally recreate a patented item, even for
personal use in your own home. In practice it is unlikley you will
besued for doing so, but it is absolutely illegal. Contrary to popular
mythology, there is no such thing as a "research exemption" on
patents, except for a very narrow exemption related to pharmaceutical
patents only.

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[Shawn]

Reading Groklaw for years seems to counter your argument. I'm not a
lawyer, and live in a different jurisdiction with different laws, so
take this as an observation only that should be followed up with your
local laws/lawyers...

But my understanding is that there is provisions in the US Patent law
making it legal for someone to make a patented item in some cases.
Specifically, if you are printing out a patented part with the intent to
repair the thing under patent. i.e. item X may be patented but consists
of many parts. One of those parts break and you "repair" it by making a
new part. Also, I believe there are some things that may be patented
but are perfectly fine to make for personal use (i.e. you don't
sell/give it away). This part is a little murkier though and a lawyer
should be consulted.

What've I really gleaned though is that if you make a patented item for
yourself, you would only have to worry if the patent owner somehow found
out about it. And then only if they a) cared, b) felt they had just
cause to come after you, and c) felt it was worth the expense they would
endure. Which means that it is possible to fly under the radar as long
as you do not do anything stupid - like publicly trying to sell patented
items as your own without a license. For one-offs, or the occasional
thing for your own use, then this is likely harmless. But beyond that
you should be talking with a lawyer and/or getting a license.

My thoughts.

Shawn

[Zip Zap]

     In other words, unless someone actually sued you then nothing legally happens.  One analogy is the crime of theft.  For example, if you someone you know(i.e friend, relative, co-worker) stole your shoes from you and have evidence to back it up then you have up to five years to report or sue for it.  After that, the statute of limitations runs out.  The only crime that has no statute of limitations is murder.   But even in murder there are exceptions in regards to age.  If someone committed murder as a juvenile then at most the punishment is maybe some time in juvenile prison.  Even if the murderer is finally convicted long after they are an adult.  It's still a juvenile sentence. 

    Of course, you can always argue for the bigger picture of whether it was moral to begin with.  That's what I sense when people argue generally about the legality of copying.  I suspect they are putting there own personal moral views into the discussion when they conclude it's illegal when in fact they are just thinking in a moral sense.  

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From: Shawn <sgr...@open2space.com>
To: make...@googlegroups.com
Sent: Saturday, September 29, 2012 12:42 AM
Subject: Re: [MakerBot] Re: MBI received a patent (#8,226,395) on the ABP - what now?

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[Jack Coats]

http://www.google.com/patents/US8226395
http://www.google.com/patents/US20120059504
http://www.google.com/patents/US20120046779

Yep, These are all I found that have origional assignee of MakerBot Industries

Patents, when issued, are basically a license to sue. They are also a
bit pricey (anymore) to get through the process and to keep enforced.
But once issued, the 'art' is available for review, and if allowed to
expire by no renewing it becomes available for public use without
fees.

If it can be afforded, it is not a bad way for open hardware to be
protected 'in the open', because even if not enforced (bringing law
suits to violators), it becomes part of the 'prior art' for others to
build on.

><> ... Jack

[Chooch]

Okay here is how the story goes...

The design for the ABP was released 9/13/2010

I never bought the ABP, because I thought the price was high and didn't like that you couldn't purchase parts ala carte. If I remember correctly I actually warned them on thingiverse that I would make a better one, because I didn't think they were handling the product as a true upgrade path for users that had already spent money on a heated build platform. Hence, by the next day 9/14 I released a clone printable version that was posted on thingiverse.

I looked into the design more and then started making my own version that is more reliable and has a true 100 x 100mm build area, it is also printable. That was released 9/26/2010

The MBI ABP & the PRBP is under Creative commons GNU GPL version 2, which states: "Finally, any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all." 

We must find out if their patent is licensed for everyone's free use, if not...they are in violation of Creative Commons. I can't seem to find the licensing information on patent genius.

I'm starting to think again I should just come out with my new version and see what happens, because they probably won't do anything and if they do... it's just more negative publicity, which they certainly don't need.

I wonder if they are laughing over reading this group or if they are worried. 

  

[geneb]

On Fri, 28 Sep 2012, Mike Payson wrote:

> This is FALSE. You cannot legally recreate a patented item, even for
> personal use in your own home. In practice it is unlikley you will
> besued for doing so, but it is absolutely illegal. Contrary to popular
> mythology, there is no such thing as a "research exemption" on
> patents, except for a very narrow exemption related to pharmaceutical
> patents only.
>

As someone that's used a patented design in a home-built collimated visual
display, this statement makes me very nervous. Can you point me to where
you got this information?

Thanks.

g.

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http://www.diy-cockpits.org/coll - Go Collimated or Go Home.
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[c f]

If you're trying to start an actual business, why don't you just contact MBI directly and/or (probably both) consult a lawyer? Even if Zach had replied to you, a forum post from someone no longer associated with the company is probably not adequate for putting you on firm legal ground. This is just another cost-of-doing-business (like incorporating, filing taxes, getting insurance, etc).

On Sun, Sep 30, 2012 at 9:44 AM, Chooch <brianp...@gmail.com> wrote:

Well I contacted Zach the only way I know how, on his website directing him to this and asking what the intentions were with the patent. The post got quickly deleted :(

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[Chooch]

No matter, I just found Bre's response to the patents in his "fixing misinformation with information" comments. I thought Zach could just give some background information on it, but he probably doesn't want to deal with it.

I'm not sure if I really want to turn this into a full time business, as I have other opportunities that would be more viable. I just want to innovate the open source community and maybe make a limited run. Regardless, I will be talking with my lawyer.

[lassikin]

http://en.wikipedia.org/wiki/Patent_infringement

"n United States law, an infringement may occur where the defendant has made, used, sold, offered to sell, or imported an infringing invention or its equivalent.^[7] One also commits indirect infringement if he actively and knowingly induces another to infringe, and is liable for that infringement. Types of "indirect infringement" include "contributory infringement" and "induced infringement.""

if you're getting utility out of it.. you're infringing. practically if it weren't like this, you could throw the patent law out of the window because then you'd have loopholes big enough to fit an aircraft carrier through("some assembly required" to circumvent any patent).

-lassi

[Zip Zap]

     So patent law can be all summarize in one wikipedia paragraph?  I remember seeing an episode of "People's Court" where a defendant who didn't even have a law degree attempted to quote something in a law book right in front of the judge.  The judge yelled back saying "You're going to tell me what the law says!".  The defendant shut up quickly.  

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From: lassikin <la...@playmysong.com>
To: make...@googlegroups.com
Sent: Saturday, October 6, 2012 6:31 AM

Subject: Re: [MakerBot] Re: MBI received a patent (#8,226,395) on the ABP - what now?

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[lassikin]

Well, that's the answer what you end up with if you try to research the subject from the web.

there's no exception case in the laws in western world for personal use. - or for self made devices.

of course if the patent isn't valid in the first place you can infringe as much as you want. but provided the patent is valid then if you duplicate the invention somehow then you're infringing.
however there's practicalities in getting sued, which makes personal patent infringement quite safe to do.


-lassi

[Dan Newman]

On 7 Oct 2012 , at 3:18 AM, lassikin wrote:

> Well, that's the answer what you end up with if you try to research the
> subject from the web.

Sort of ignores patent case law, don't you think? Which is to say, there's
the letter of the act/law and then there's how it has been interpreted by
courts. A read of the actual law is just that -- a read of the law. It
doesn't necessarily tell you anything about how the law is being interpreted
and applied.

Dan

[geneb]

On Sat, 6 Oct 2012, lassikin wrote:

> http://en.wikipedia.org/wiki/Patent_infringement
>

> "n United States <http://en.wikipedia.org/wiki/United_States> law, an

> infringement may occur where the defendant has made, used, sold, offered to

> sell, or imported an infringing invention<http://en.wikipedia.org/wiki/Invention>or its
> equivalent <http://en.wikipedia.org/wiki/Doctrine_of_equivalents>.[7]<http://en.wikipedia.org/wiki/Patent_infringement#cite_note-6>One also commits indirect infringement if he actively and knowingly induces

> another to infringe, and is liable for that infringement. Types of
> "indirect infringement" include "contributory infringement" and "induced
> infringement.""
>
> if you're getting utility out of it.. you're infringing. practically if it
> weren't like this, you could throw the patent law out of the window because
> then you'd have loopholes big enough to fit an aircraft carrier
> through("some assembly required" to circumvent any patent).
>
> -lassi
>

Thanks lassi. Due to this I'm not providing any drawings for the feature
- I'm just pointing people to the patent and say, "figure it out for
yourself".

[lassikin]

well, the research includes how it's handled in practice. I certainly didn't find anything documenting a case where a valid patent was ok'd for infringement just because the use didn't involve commercial gain or was only for personal utility. though there's plenty of cases where patents have been found invalid since the way for patent office to work is to grant practically any patent and let the courts figure out it later if they're valid.

around here (over in europe) case law isn't how things are handled anyways. but either here or there, the same thing applies that the patent holder must care enough to seek for licensing and court proceedings, which in practice is giving a free ride for home grown infringing.

-lassi