1. Introduction
Patents have long been hailed as a litmus test of innovation [
1]. Most manufacturing companies use patents because it is expected to drive innovation [
2] and improve firm financial performance [
3]. In exchange for sharing the invention in the public domain the firms then secure a 20-year monopoly on the patented materials, products or processes [
4,
5]. Patenting, however, has come under progressively substantiative attack in the peer-reviewed literature for actually retarding innovation [
6,
7,
8,
9,
10,
11,
12]. The software industry has shown a new path to innovation with the concept of free and open-source software (FOSS). FOSS is software, which is released under a license that enables anyone to use, copy, study, and change it. In addition, it comes with the source code freely accessible so that everyone is encouraged to voluntarily improve the design of the code in exchange for the requirement that their adaptations must be re-shared with the same license [
13]. Thus, FOSS sets up a gift economy [
14], which has been well established to create rapid innovation [
15,
16]. The free and open-source innovation is based on widely used FOSS licenses [
17], which have repeatedly [
18] shown massive success [
19]. To understand how ubiquitous FOSS now is, consider that it has become the dominant method of technical development in the software industry as a whole where 90% of cloud servers run open source operating systems [
20] (including common household named companies like Google, Facebook, Twitter, Yahoo, and Amazon) as well as 90% of the Fortune Global 500 (e.g., which includes both technology based companies but also major retailers like Wal-Mart and even fast food enterprises like McDonalds) [
21]. Today all supercomputers run on open source operating systems [
22]. Open source operates over 84% of the global smartphone market [
23]. Similarly, more than 80% of the IOT (internet of things) market also runs on FOSS [
24]. Lastly, all of the hype currently surrounding artificial intelligence (AI) is also resting on an open source foundation in AI [
25,
26]. More than half of academic articles in machine learning depend on open source [
27]. For example, Google open-sourced TensorFlow [
28], which resulted in an era of fast-paced OS community-driven innovation that has directly contributed to incredible recent pace of AI advancements [
29]. The open source innovation cycle was so fast that
The Guardian reported on a Google Engineer leak that said, “Open-source models are faster, more customisable, more private, and pound-for-pound more capable.” [
30].
With the rise of digital manufacturing, the same free and open source development paradigm [
31,
32] has begun to infiltrate hardware and democratize manufacturing [
33] of all kinds of physical products [
34]. This parallel in hardware is known as free and open-source hardware (FOSH). The Open-Source Hardware Association defines open-source hardware [
35] as:
Hardware whose design is made publicly available so that anyone can study, modify, distribute, make, and sell the design or hardware based on that design. The hardware’s source, the design from which it is made, is available in the preferred format for making modifications to it. Ideally, open source hardware uses readily-available components and materials, standard processes, open infrastructure, unrestricted content, and open-source design tools to maximize the ability of individuals to make and use hardware. Open source hardware gives people the freedom to control their technology while sharing knowledge and encouraging commerce through the open exchange of designs.
Just the same as FOSS, FOSH uses viral licenses (e.g. CERN OHL [
36]) that similarly require that if users make modifications or improvements in the hardware they are required to share their improvements with the global community with the same license [
37]. Not surprisingly, FOSH has shown rapid innovation just like FOSS [
38,
39,
40]. By graphing the instances of FOSS and FOSH showing up in the scientific peer-reviewed literature it appears that FOSH is roughly 15 years behind FOSS in terms of technical development and uptake [
41].
FOSH allows users to make exact replications of physical products from digital designs [
42,
43]. In addition, users can customize the designs and thus improve them for themselves [
44] often using FOSS to do it [
45]. When this is done with digital fabrication, what happens is that open-source designs generates wealth growth [
46,
47]. Thus, even the poor have access to high value products like state-of-the-art scientific equipment [
48,
49,
50,
51] for little more than processing electrical costs and some raw materials. This radically undercuts commercial or retail costs for products [
52,
53]. Researchers can expect to save about 87% compared to proprietary scientific tools [
47]. There is one area where these savings are perhaps most stark – when 3-D printers are used [
47]. For example, several studies have shown that using low-cost open source 3-D printers can reduce the cost of mass manufactured consumer goods, on average by 90-99% [
54,
55].
The recent application of FOSS and FOSH to rapid prototyping and additive manufacturing has democratized 3-D printing [
56]. This is entirely due to the open sourcing of the first self-replicating rapid prototyper (or RepRap) by Adrian Bowyer and the concomitant global 3-D printer hack-a-thon that drove massive innovation and 3-D printers into the common consciousness [
57,
58,
59,
60]. RepRap dramatically reduces additive manufacturing costs and increased the number of FOSH 3-D printables exponentially [
54], which now number in the millions. Having moved past first adopters, consumers are similarly saving themselves hundreds of millions of dollars by using FOSH 3-D printables and making their own products rather than buying them [
61]. Open source 3-D printing innovation primarily focused in the U.S., EU and China is exemplified by originally by Makerbot then Lulzbot in U.S., Prusa in the EU and Creality in China consistently won
Make Magazine’s annual 3-D printing shootout [
62].
Open-source 3-D printing has played a pivotal role in revolutionizing the manufacturing landscape, democratizing access to cutting-edge technology, and fostering rapid innovation [
56]. As the field has gained prominence, however, it has also encountered a range of challenges that threaten open-source principles. In his thought-provoking article, "The state of open source in 3D printing in 2023," Josef Průša [
63], a prominent figure in the industry, calls for an open discussion to protect the interests of the global 3-D printing community from these challenges. He noted there is an uprise in 3-D printing manufacturing companies deviating from open-source principles, violating licenses, and in the most extreme cases patenting open-source technologies for the detriment of the community. The most pressing issue identified by Průša is the increasing number of companies applying for patents based on prior open-source developments. Such actions hinder innovation, lead to financial burdens, and even result in lawsuits. Is this actually the case? Has a pattern emerged of companies patenting clearly open-source innovations?
To answer these questions this study presents three case studies from the three primary regions of open source 3-D printing development (EU, U.S. and China) as well as three aspects of 3-D printing technology. Specifically, this article evaluates the examples of recent patents in the 3-D printing space on additive manufacturing materials, a specific open-source 3-D printer, and core open-source 3-D printing concepts used in essentially all 3-D printers. The results are presented and discussed in the context protecting open-source prior art and the rapid innovation it enables from being retarded by monopolistic control and hindrance to technological progress.
4. Discussion
In nature a parasite is a creature that lives off of an organism of another species, known as the host, and gets its food from or at the expense of its host [
113]. In the intellectual property ecosystem, Heled argued that patent trolls (non-practicing entities) may be better understood when viewed as analogous to these biological parasites [
114]. In the examples reviewed in this article, however, more often than not those patenting open-source inventions were not patent trolls, but instead active 3-D printing manufacturing companies. These companies are better examples of
patent parasites as they can kill their host. Thus, in the context of this article the open source 3-D printing community is the host providing nourishment to patent parasite companies that extract IP (food) from the community and patent it to the detriment of the host community. In the open source community there has always been some degree of freeloading [
115], but this did not directly harm the community and did not become parasitic as freeloaders generally only hurt themselves by not having others build on their specific technologies because of lack of resharing to the community [
116].
With the example case studies reviewed here a new form of
patent parasitism appears to be on the rise in the 3-D printing technology space. The most common method observed in the case studies involves: 1) letting the open source community innovate and develop a technical solution, 2) waiting until that innovation has been widely tested by the open source community and in some cases even commercialized by an open source firm, and 3) surreptitiously patenting the technology by hiding the core ideas in the claims while using a vague (and sometimes irrelevant) patent title and abstract to obfuscate any attempts for the open source community to police it. In the worst examples exemplified by case 3.1, 3.2, and 3.3, this is done in another language in a clearly lax patent office (China) that fails to do due diligence in searching for obvious prior art in English. If these patents are weaponized either by the firms that invested in them (or by non-practicing entities) that purchase the patents, the vibrancy of open source 3-D printing technology first founded in the RepRap project could be crippled. As Průša mentions in his article [
63] patent trolls pose a formidable challenge. These entities, often non-practicing organizations, exploit patent rights beyond their actual value, stifling innovation and forcing companies to engage in legal battles. The rise of patents related to 3-D printing further exacerbates the situation, creating a potential roadblock for technical progress and inhibiting the growth of 3-D printing for another two decades. Patent parasites that simply patent existing open-source technologies are potentially an even greater threat than patent trolls as they directly attack the goodwill so effective at driving innovation in the open-source paradigm.
In the recent response [
117] to the article by Průša [
63], the CEO of Bambu lab presents their perspective on the role of patents in the 3-D printing industry. He acknowledges the challenges of taking a design into production, particularly in light of supply chain issues, and recognize the significant role of Creality by producing product like the open-source Ender 3 in bringing down the costs of desktop 3-D printers. His assertion that they will not use patents as obstacles for other innovators and they will not employ overly broad patent claims that hinder the development of the industry is commendable. The reality of their actions, particularly in China, however, seems to contradict this statement. Worse, even if Dr. Tao (Spaghetti Monster) is honorable, Bambu Lab’s next CEO, or the company that buys the patents may not hold these ideals, which threatens the entire industry. He further claims that they have established an intellectual property department to ensure fair competition. The fact that they are applying for patents which simply copy already existing open-source technologies makes them look incompetent at best (e.g., maybe their engineers are simply unaware they could simply download the plans for any of the inventions detailed in case studies 3.1-3.3) or malicious at worst (e.g., if they attempt in the future to use their patents to drive smaller firms out of the market). Dr. Tao/ Spaghetti Monster claims that the driving force for this race is to be the best, to pursue pride and glory, and to push the industry forward. This is truly inspiring. They argue that the industry and customers will benefit from this competition. Yet, if they are patenting open-source technology that made this competition possible in the first place, they are potentially crippling their competitors and undermining the very essence of the open-source ethos.
Even though Dr. Tao / Spaghetti Monster emphasizes the intention not to hinder the development of the industry and their willingness to share designs and patents within the 3-D printing community, from a broader perspective, there are still clear issues with patenting existing open-source technologies, which should not be possible anyway. These issues include:
Inhibiting innovation and slowing development: Patenting already existing open-source technology can hinder innovation by restricting the free flow of ideas and limiting the ability of others to build upon existing knowledge. It could stifle creativity and impede the collaborative nature of the vibrant innovative open-source community. This can hinder the pace of innovation and delay the benefits that open source 3-D printing can bring to various industries including in science [
44,
48,
49,
50,
52,
53,
118,
119], medical technology [
120,
121,
122] and reaching sustainable development goals [
123,
124,
125].
Encouraging monopolies: Granting patents for already existing open-source technology could lead to the creation of IP monopolies [
126,
127], as companies with patents can control and exclude others from using or improving upon the technology. This can reduce competition, limit consumer choice, and drive-up prices all to the detriment of consumers (and in this case, prosumers).
Patent thickets: If multiple companies use the patent parasite approach, the patenting of open-source technology could result in patent thickets, where numerous overlapping patents exist for the same or similar technologies. Patent thickets are well-known to create legal complexities, increase the risk of patent infringement lawsuits, and impede progress by making it difficult for innovators to navigate the patent landscape [
128,
129]. A well-known patent thicket [
130] that has stifled a modern technology is found in nanotechnology [
131,
132], which has become so pernicious as to be called a modern “intellectual property tragedy” [
133]. An obvious solution is to make nanotechnology open source for the betterment (and even greater commercial success) of that technological community [
134], which provides all the more reason not to patent existing open-source technologies in the AM space.
Patents are obviously not necessary for providing legal protection. Alternative protection mechanisms including open-source licenses, such as copyleft licenses (e.g., GNU General Public License and the CERN Open Hardware Licenses), already provide a framework for protecting open-source technology while maintaining its open nature. These licenses ensure that derivative works also remain open source, promoting collaboration and preventing proprietary control. To work as protective instruments, they need to be used within the legal system and far more work is needed in this area.
It is clear from this review that many 3-D printing technologies under current legal patent protection had already been implemented in commercial products or published in the open-source domain by the open-source hardware community. These patents are invalid theoretically, but need to be invalidated legally as they threaten the entire innovation system in AM space. In addition, to counter future threats, the community must establish a defensive fortress of "prior art" and leverage innovative approaches to protect the basic building block innovations of 3-D printing. To combat these threats, Průša emphasizes the importance of community participation. To tackle this, the existing knowledge, designs and innovations need to be actively documented in the public domain under open-source licenses. By doing so, the open-source 3-D printing community can create a repository of prior art that serves as evidence of pre-existing technology and ideas. These can then be used as a defense against patent claims by demonstrating that the claimed inventions are not novel or non-obvious. The innovative approaches to help can include developing algorithms or software tools that help identify prior art related to 3-D printing materials, techniques, or processes. By leveraging such tools, the community can proactively challenge copycat patents and contribute to a stronger defense against patent trolls and non-innovative patent claims. By actively sharing ideas, innovations, and contributions through various channels such as open-source repositories, project platforms, and social media, the community can fortify the public domain and make ideas easily discoverable as prior art. There have been some efforts to do this with the Open Source Hardware Association’s (OSHWA) open hardware certification process [
135] and to quasi-automate this process for MediaWiki websites like Appropedia [
136]. Clearly far more work is needed to aggregate all of the current open-source inventions and to add the OSHWA certification database to the official list of repositories that are checked by all patent offices for prior art.
5. Conclusions
This review presents three case studies from the EU, U.S. and China to evaluate innovation in the 3-D printing industry. The results of this review of inventions in the 3-D printing industry has shown that non-inventing entities throughout the world are attempting to patent/patenting clearly open-source inventions already well-established in the open-source community and in the most egregious cases commercialized by one (or several) firms at the time of the patent filing. There is substantial evidence of companies, including a U.S. government-funded research institute, patenting inventions that are not only pre-existing/ prior art, but also have been developed and used by the open-source 3-D printing community.
There seems to be a particularly anti-competitive and anti-innovation trend, which is dubbed patent parasitism here, of companies in China patenting open-source innovations in the 3-D printing industry by using a different language with vague patent titles and broad claims that encompass enormous swaths of widely diffused open-source innovation space. This practice could hinder innovations when: 1) follow on innovators believe that an open-source concept is under patent that demands a license to use, 2) open-source firms, which specifically avoided patents in part to avoid IP lawyer investments, must defend their own work from IP lockdown, with lawsuits. There appears to be a clear threat that if the patenting of open-source technologies continues, particularly with the threat of AI generated patent parasites, competition from open-source community supported firms could be stifled, which will inhibit innovation both in the commercial and community space. Unfortunately, until the global patent system is modernized to include the reality of more rapid innovation provided by an open-source paradigm, the patent system will continue to miss prior art and issue bogus patents. It thus appears that in the short-term at least, the open-source community needs to be vigilant in protecting its innovations stolen by patent parasites.