This is an important time in the development of 3d printing.

We have just cleared nearly two decades of the fundamental MIT patents on 3d printing using powders, and although there is a tangle of improvement patents on particular forms of 3dp technology, we have some hope of opening up development activities from its university-created, monopolistic roots.

Recently Michael Weinberg at Public Knowledge published an important essay on the prospect of intellectual property issues slowing the development of 3d printing.  Public Knowledge has spent a great deal of time dealing with digital copyright issues.   Weinberg worries that manufacturers will sue 3d print users for making copies of their products, or replacement parts.

These are important things to consider, but  I fear the biggest threat to 3d printing may well be coming from universities, and in particular from university technology transfer offices fixated on filing early-stage patents and holding to a coarse idea of “commercialization”,  which to them means “make money by licensing”.  Almost always, making money from  licensing at a university these days involves (1) exclusivity (2) a requirement that the exclusive licensee play the monopolist (3) no reservation of rights or public license for internal uses or noncommercial uses except perhaps (4) for limited nonprofit or educational uses at the licensing university.  No university I know of is willing to offer a non-exclusive license to practitioners generally, and never before having first attempted to negotiate an exclusive license.  The reservation for practice comes after the money grubbing is accomplished in the name of “commercialization” for the “public good”.   Often the only licensee willing to play the monopolist is a university-supported start up company, since there’s not a huge rush from real, working companies to play the part.

This activity is said to be in the public interest.  Somehow the university administration making money from licensing is more important than the health of research, collaboration, competition, and development of technology, platforms, and standards.  The technology transfer office will put $15K into a patent application on the prospect of some monopoly speculation, but won’t put $15K into equipment that would facilitate our efforts to work with others.   The university claim is that unless folks take these early, speculative monopoly positions, no one will have the motivation to use such wonderful things, inventors will not be rewarded, and jobs won’t be created.  And if you buy that, I have a bridge to sell you, too.

In practice, the university licensing programs, across many fields of endeavor, quietly cause net damage to research, new venture economies, and industry practices.   You won’t read that in any annual report from a technology transfer office, however.  For the most part, university licensing offices are well intentioned, work hard, and are at least modestly capable.  But a speculative model of monopoly licensing of research inventions is itself broken and hurts innovation in all sorts of ways for the sake of seeking licensing income.   Being sincere (or even sincerely apologetic) about it doesn’t fix anything.

Look at 3d printing.  It was wonderful that MIT folks invented something, licensed its patents, and got a company on its feet to make 3d printers.  We like that company, and use its products.  The license was exclusive for 3d printers, however, and no one could build a powder-based 3d printer, even for research use, in the US while the patent and exclusive field of use license were in force.   The company, furthermore, has gone on to obtain a bunch more patents on improvements and applications, and has effectively kept out competition for two decades.  Its printers sell for $15K or so a pop, it takes $2K or so to fill the feed bin with their proprietary material, and you are out another $5K+ for a year of warranty service.  Put any non-company material in the feed bin and the company voids the warranty and won’t  service the printer.  Luckily, they build a really great machine that with a little help from friends is readily self-serviceable.  Put in Hydroperm and you can fill the feed bin for under $35 and get perfectly acceptable output.

Now it looks like folks at MIT are out filing a new patent application that would monopolize any mixed material fused deposition 3d printing.  The first claim basically says, add heat to any nozzle with any actuator and any chamber in which multiple materials can be mixed, for continuous variation on output.  If MIT follows its usual practice, this will be the end of the road for fused deposition mixed materials for another 20 years.  Is this a public benefit?  Or an outright attack on the practice community?

There’s another argument that says:  “who cares if it is a public benefit?, take what you can and hold it until someone pays you for it!   That’s commerce; it’s the law of the jungle; finders keepers, everyone else a weeper.”   This all may be true in a sort of smug, self-fulfilling way, and it may be how the transcontinental railroads were built in America, but it also is a value system that for all its rhetoric about innovation is largely clueless about how innovation comes about.  As Steven Johnson shows in his recent book Where Good Ideas Come From:  The Natural History of Innovation, a whole lot of the innovation that has made the world what it is has come from non-market, networked efforts.

When universities grab inventions early, stick speculative patent pins in them, and then head off with boxes of them mounted in their death sprawl for “commercialization”, they are in effect destroying much of the opportunity for university researchers to participate in networked, non-market activities, like the ones that gave us the internet, email, and blogs.  Yes, on top of this activity came commercial activity of all sorts, from Cisco to Google to WordPress.  That’s innovation.  But many university patent licensing offices are not helping the process.  Indeed, they are fine with killing that process off in favor of seeking monopoly rents.

Cases in point.  We called up USC, where Behrokh Koshnevis has invented some interesting methods for 3d printing cement for construction.  We asked,  “Could we collaborate?  Could we try out these methods?  Would you give us a research license?”  “Nope.  Can’t do that.”  “So you would like, sue us if we worked in this area?”  “Well, can’t say we would, can’t say we wouldn’t.”  End of discussion.  We called up Bowling Green State University, where John Balistreri had invented some techniques for printing in ceramics.  “What’s the situation?  Can we collaborate?”  “We’ll think about it, perhaps, later.   We would rather license to a company.”  Later we hear they have done a deal, so no collaboration possible.  The ultimate irony:  a former BGSU grad student contacts us–can he work with our ceramics, seeing as he is locked out of the BGSU approach?  Neat.

We are finding that university technology transfer offices cannot bring themselves to be open about research.  It goes against their policies, their expectations, their metrics.  Their business is wrapped up in pulling stuff as early as possible from a stream of research,  introducing patent claims and requirements for contracting, and adding a business model that prefers monopoly and speculation.   Their pitch to faculty is not only that this is how to make money on top of salary (the “Porsche effect” as it’s called), but that it is everyone’s *ethical duty* to do this, as this is how to benefit “the public”, comply with federal funding rules, and do one’s duty to the university (it is *policy* after all that the university gets to own inventions and control all deals).

Even when folks publish their work, it’s an entirely different gesture if there are patent applications filed.  They don’t typically make it known in their publications that the university has filed patent applications.  Universities generally keep patent applications secret.  We ask:  what’s the point of doing research based on published findings where there are patents pending that you don’t even know about?  One can’t get a license even for research purposes, and even if one could, one can’t grant sublicenses to anyone else who wants to work on the research with you, and no company in their right mind would sponsor such work without a license (contributory infringement, likely willful, so treble damages).

What the licensing officers are doing is turning authentic research communications reporting research events (such as inventions) into an implied shilling for future monopoly licensing interests.  That’s the primary screw up, and it’s a huge one.   The university technology licensing offices pursuing monopoly commercialization are scorching the research earth.  If anyone has the ability to “screw it up”, it is the university licensing offices.  And they claim categorically that it is in the public interest to do so.

What is an open research program to do?  1) Publish early and often.  That’s one role for this blog.  It isn’t always pretty, but it has a primary job to do and that is to make public our work as it develops and raise the bar on what counts as an invention worthy of respect.  2)  Collaborate with folks whose contributions are non-toxic and are willing to engage, reciprocate, and compete on quality,  responsiveness, and insight.  3)  Work in good faith against the interests of people trying to use speculative patenting to block practice and exploration in 3d printing so they can dominate practice and thereby make money.

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9 Comments on Scorching the 3dp Earth

  1. Russ Nelson says:

    You seem completely unaware that universities that take federal money are *required* to aggressively seek monopolies and monopoly rents. The idea, like all government ideas, is a great one: allow companies to take this university research, monopolize it, invest in it, turn it into products, and make it available to the public. I’m sure that the basic idea was hatched in a few moments of thought: “Wouldn’t it be great if all this research could be turned into products?” “But that would require companies to invest.” “Oh, well, they’ll have to file for patents.” “But they can’t do that if it’s already been published by the university.” “Oh, not a problem, we’ll just require the university to patent everything, and license it to the corporations.” “But if they license it to everyone, that’s the same as licensing it to no one.” “Oh, right. Well, we’ll have them license it to just one party.” “Yeah, that will work! Great idea, let’s pass some legislation!”

    And THAT, my friends, is what happens when you allow governments to interfere in the marketplace. We need separation of government and markets, just as we have separation of government and religion, government and printing, government, and speech, government and assembly, etc.

  2. barnett says:

    Russ, You recite, perhaps with a lot of irony, a common misconception. In the US, the Bayh-Dole Act does not require universities to take patent positions, to license exclusively, or to make money from licensing. University administrators have simply made up these bits from thin air and repeated them so long they believe them. It is just their urge to do these things. Not federal policy at all. Not even a good sense of innovation or economic development. The fluffy language about being required to do so, or rationalizing patent monopolies as uniformly the best thing in the world, or the moralizing about “public benefit” are at best hopeful spin and at worst delusional, damaging bullshit–meaning, something said without any regard for the truth.

    Check out the objectives of Bayh-Dole at 35 USC 200. Commercialization is barely mentioned. Practical application is what gets a full definition. Universities may readily grant non-exclusive licenses for research and internal use without disrupting their efforts to extract a tax from commercial sales, if that’s what they are fixated on doing. But they generally do not do even this.

  3. Brendan says:

    Great article. I can’t believe that MIT can in one breath preach the benefits of “Open Courseware”, and in the next breath shut down research collaboration on the grounds that it might spoil a closed commercial agreement.

  4. [...] some are warning that overly broad patents could derail the whole revolution. Even more worrisome is the prospect that existing IP law is completely unprepared for a future [...]

  5. barnett says:

    Well, we haven’t heard from MIT that we can’t work on multi-material fused deposition 3d printing should they get their patent. But I don’t see that there was any research development, for the last 20 years, in powder-based printers, but for MIT’s exclusive licensee. Even if MIT let folks do research on powder-based printers, given the broad scope of their patent, no one could practice much of the research but for MIT and its exclusive license. Scorched earth for everyone else.

  6. Jon says:

    Brendan, one of the issues that you have to remember is that all of this research (and open courseware, by the way) costs money. In the end it has to be paid for. The way that that happens is licensing. Do you get money for non-exclusive licenses? Sure. Is it the same amount of money? No. There are TONS of projects at a school like MIT that never see the light of day because they are feasible, don’t work or have no marketable value. It’s one in ten or one in a hundred even that have real value and in order to support all those other attempts, they have to make good on the one that succeeds. It may not seem right or ideal, but it is the way it is and if schools like MIT ar going to continue to create entirely new concepts and products, they are going to need the funding generated by this method.

    PS – having said that, the work you guys are doing is amazing and I hope that you can keep it up.

  7. barnett says:

    Thanks for the encouraging PS, Jon. Licensing patents at universities is a drop in the bucket in terms of research support income at most universities. Apart from the publicized few deals, most universities operate very modest incomes from licensing, a number not even breaking even. The University of California system, one that does do better than break-even, in FY2010 generated $105m in licensing across 10 campuses and some federal labs, with 41% from the top 5 and 68% from the top 25 inventions. See http://www.ucop.edu/ott/genres.....ptFY10.pdf To put it in context, UC has nearly 10,000 “active” inventions and 3,800 issued US patents. Most UC inventions are not licensed. And most that are licensed are moribund deals. Worse and worse if the many moribund deals are exclusive. More context, UC has $3.8b or so in annual extramural research. So their licensing program amounts to about 3% of their research dollars. A few schools do quite well, however, with modest research budgets. University of Akron is an instance.

    We may go further. Some of the most lucrative university licenses were non-exclusive. Cohen-Boyer gene splicing. The Axel patents. Expression of polypeptides in yeast. MPEG. Non-exclusive can be every bit as lucrative as exclusive. Why? One encourages more participation, one may cover a greater share of the total market, and one spreads the risk of problems across multiple developers, one builds platforms with critical mass adoption. The need for exclusivity is rationalized but for universities in particular it is not a given. For a long time Stanford had a policy to grant exclusivity for only 8 years. That made good sense. Give a head start and then open things up to competition.

    So when talking about value, if that means “making money any way you can on patent rights”, then sure, there are ways to make money that don’t regard research and DIY practice. And it doesn’t mean all the other research discoveries and inventions don’t have “value” and don’t contribute to the economy and don’t create opportunities, commercial and otherwise, just because an institution doesn’t claim them and try to make money any way they can.

    Finally, the little bits of royalty income that universities do get do not get allocated generally to cover things like open courseware. I don’t know of any US university that allocates any significant portion of its patent licensing income to instruction. It goes to research facilities and to research centers and for bridge funds for yet more research.

    Patents have a role to play. There is a time for them. For the fundamentals of 3d printing, that was 20 years ago. There are operating models under which patents do well. They can attract investment, help investors and adopters alike with provenance and review, create cross-licensing positions and develop standards. For universities to be involved in patenting, as institutions, they have a responsibility to foster all of these things. But most universities are unwilling to cross-license, develop standards, or license non-exclusively even for research and internal uses–even when their unlicensed patents are otherwise moribund. While there are good arguments to be made for patents, universities in generally have not found those arguments and are unwilling to practice them. They give lip service to public benefit, provide rationalizations for their monopoly practices, and lead folks to believe it’s the only way to get on with innovation. Their practices don’t hold up to scrutiny.

    Sorry about being longish, but you got me going again.

  8. Dimitrios says:

    The part that I really have a hard time with is the Bowling Green exclusivity practice. Are they not a state university? Yet they can make exclusively licensed patents. It seems to me that a non-private educational institution should only be able to make its research available to the public.

    But what do I know.

  9. barnett says:

    Yeah, it sort of blew us away. If you look at this page, you see the claim that there are patents pending. http://johnbalistreriartist.com/biography/ We called and confirmed this when asking if we could collaborate. But we’ve never seen a patent application publish. We don’t know what happened, but there is no shortage of public universities playing hardball over patent rights for the money, or the hope of money, collaboration and research and competition be darned to heck.

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