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Questionable Patents From MakerBot

Posted by Soulskill on from the you-should-play-nice-with-others dept.

An anonymous reader writes "OpenBeam USA is a Kickstarted company that builds open source aluminum construction systems (think high-quality erector sets). One of the main uses for the systems is building 3D printers, and creator Terence Tam is heavily involved in the 3D-printing community. He's now put up a blog post about some disturbing patents filed by MakerBot. In particular, he notes a patent for auto-leveling on a 3D printer. Not only is this an important upcoming technology for 3D printers, the restriction of which would be a huge blow to progress, it seems the patent was filed just a few short weeks after Steve Graber posted a video demonstrating such auto-leveling. There had also been a Kickstarter campaign for similar tech a few months earlier. Tam gives this warning: 'Considering the Stratasys — Afinia lawsuit, and the fact that Makerbot is now a subsidiary of Stratasys, it's not a stretch to imagine Makerbot coming after other open source 3D manufacturers that threaten their sales. After all, nobody acquires a patent warchest just to invite their competitors to sit around the campfire to sing Kumbaya. It is therefore vitally important that community developed improvements do not fall under Makerbot's (or any other company's) patent portfolio to be used at a later date to clobber the little guys.'"

56 comments

  1. Oblig Prior Art Question by almitydave · · Score: 0

    I assume 10 others are asking the same question as I type this, but wouldn't a video demonstrating the tech published weeks before the patent was filed constitute prior art, rendering the patent non-novel and invalid?

    --
    my, your, his/her/its, our, your, their
    I'm, you're, he's/she's/it's, we're, you're, they're
    1. Re:Oblig Prior Art Question by almitydave · · Score: 2

      Okay, stupid me, this is why you RTFA first: it specifically discusses this and explains how to submit prior art evidence to the USPTO. /doh

      --
      my, your, his/her/its, our, your, their
      I'm, you're, he's/she's/it's, we're, you're, they're
    2. Re:Oblig Prior Art Question by spiritplumber · · Score: 3, Informative

      http://hackaday.com/2012/04/23... This has been published April 2012, the provisional patent is from October 2012, so Makerbot wasted some time and money, by the look of it.

      --
      Liberty - Security - Laziness - Pick any two.
    3. Re:Oblig Prior Art Question by Em+Adespoton · · Score: 1

      http://hackaday.com/2012/04/23...

      This has been published April 2012, the provisional patent is from October 2012, so Makerbot wasted some time and money, by the look of it.

      Depends; these days, you have to actually submit prior art evidence to the USPTO and someone there has to agree that it's prior art. Otherwise, the patent stands.

      So even though "we" know there's prior art... has anyone submitted this to the USPTO?

    4. Re:Oblig Prior Art Question by LifesABeach · · Score: 1

      Brings up a good question, "how can one challange a patent by using prior art?"

    5. Re:Oblig Prior Art Question by MoFoQ · · Score: 3, Informative

      The author of original article/blog mentions towards the end that he submitted 3 prior arts to USPTO.

    6. Re:Oblig Prior Art Question by greenbird · · Score: 4, Informative

      wouldn't a video demonstrating the tech published weeks before the patent was filed constitute prior art, rendering the patent non-novel and invalid?

      You obviously don't understand the US patent system. The patent office basically rubber stamps patents (often helping the submitter reword things so they can pass it). The patent holder then uses it to shake down companies for money and/or destroy competition. Prior art or the validity of the patent is pretty much irrelevant when the system is stacked such that the cost to fight an invalid patent is outrageously expensive and completely unrecoverable. It has absolutely nothing to do with protecting inventors or, heaven forbid, promoting the progress of science and useful arts. It's all about destroying competition or making easy money for patent attorneys and their ilk.

      --
      Who is John Galt?
    7. Re:Oblig Prior Art Question by Anonymous Coward · · Score: 0

      I hate slashdot discussing patents. So much misinformation.

      Anyway, because of the MakerBot app's effective filing date it is not subject to the first-to-file prior art aspects of the AIA. Instead, it falls under the prior regime where the first-to-invent is relevant. As such, they can take advantage of a one-year grace period with respect to any prior art. October 2011 is indeed earlier than April 2012.

      I know it's fun, but every time we discuss an intellectual property law article here, there are fundamental flaws in the author's legal understanding, which the masses here then compound.

    8. Re:Oblig Prior Art Question by Anonymous Coward · · Score: 0

      I happen to hold a US patent (although my employer of course required assignment of rights). While I don't understand the fine details, the issue of prior art is a squishy one, not because of law, regulations, or practice, but simply from the nature of the beast.

      As a practical problem, taking a patentable idea from realization to filing is usually lengthy. The format for stating patent claims and explanation of those claims is lengthy, in practice requiring the expertise of a patent attorney who must learn the details, figure out how to factor the concept into specific claims, and search for earlier patents (because the USPTO will be just as capable of finding them and asking about them), etc. etc. It can be months or even years between the conception in the skunkworks to the filing of the patent.

      One could cut corners and bypass the patent attorney, but his expertise is in the end no less crucial than the expertise of the engineer(s) behind the patent. A patent that isn't coded correctly isn't worth the expense.

      When a patent is filed, I believe the USPTO keeps it confidential for a long time (a year?) until it is well along in process, to avoid revealing its secrets long before the patent is decided. So it is indeed possible that independent invention could result in a potential violation of the not-yet-patented invention. The current patenting rules apparently favor the first to file, so if one reveals the patentable idea prior to filing, that' stupid. No less stupid than the current patent procedures, but rather than bitching one should consider and propose a system that would work better. Certainly the current practice stinks. Devise one that stinks less!

      In the old days, scientists and engineers were supposed to keep bound notebooks of that they did, and sign and date each page as they were filled in, because signed paper IN INK was evidence. I've was never an engineer, but sometimes they let me shovel the coal.

    9. Re:Oblig Prior Art Question by hankwang · · Score: 1

      When a patent is filed, I believe the USPTO keeps it confidential for a long time (a year?) until it is well along in process, to avoid revealing its secrets long before the patent is decided.

      In the standard procedure, the application is kept secret for 18 months; then the application is published; the USPTO will then wait another year or so (depending on the back log it could be much more) before deciding whether or not to grant the patent. In this time slot between publication and decision, competitors could point out relevant prior art to USPTO, which would affect the decision.

      In the US system, one can also file a provisional patent application and wait 12 months before filing the final application, which will essentially stretch the confidential period from 18 to 30 months. This was the case here. The final application can differ from the provisional application (errors corrected, more examples provided, reworded claims, etc.). In case of relevant prior art that was published between the provisional and final application, the provisional application will count.

      --
      Avantslash: low-bandwidth mobile slashdot.
    10. Re:Oblig Prior Art Question by Em+Adespoton · · Score: 1

      My mistake; this is completely correct. I didn't notice the original submission date.

  2. MakerBot, enemy of open source and 3D printing by Thantik · · Score: 5, Informative
    Here's an article written by MakerBot themselves praising the author of an extruder drive design: http://www.makerbot.com/blog/2... and admitting that it was made by someone else...

    And here they are, attempting to patent said extruder drive design: http://www.freepatentsonline.c...

    They're taking things from the open source RepRap community and attempting to patent them. Do not support MakerBot. Do not buy their machines. And advise everyone you know not to purchase their machines should they be considering it.

    1. Re:MakerBot, enemy of open source and 3D printing by dbc · · Score: 2

      Absolutely. MakerBot turned evil quite some time back. Bre is Not A Nice Person in many, many ways.

    2. Re:MakerBot, enemy of open source and 3D printing by Anonymous Coward · · Score: 0

      Has anyone submitted those postings as prior art to the PTO so that the patent won't be granted because of prior art?

    3. Re:MakerBot, enemy of open source and 3D printing by ncc74656 · · Score: 1

      They're taking things from the open source RepRap community and attempting to patent them. Do not support MakerBot.

      First this, and now this. MakerBot needs to DIAF.

      --
      20 January 2017: the End of an Error.
  3. Prior Art Disallows Patent Applications PERIOD. by BoRegardless · · Score: 1

    All it takes is copies of prior inventors work & videos that show someone else showed the idea first & filed with the patent office and then any later patent application/s are deemed unpatentable.

    Been that way forever.

  4. Isn't the whole point of 3D printing... by Anonymous Coward · · Score: 0

    ...that I get to ignore patents and make whatever the fuck I want?

    1. Re:Isn't the whole point of 3D printing... by Em+Adespoton · · Score: 1

      ...that I get to ignore patents and make whatever the fuck I want?

      For personal use, yes. If you're caught using a home-made object patented by someone else in public, especially for financial gain, you'd better be licensing the patent or you're in for a loss at the patent court.

      And in this case, you could find it increasingly difficult to actually BUY a cheap 3D printer as all the makers get sued for patent infringement or end up caving and paying licensing fees that dramatically increase the cost.

    2. Re:Isn't the whole point of 3D printing... by NoKaOi · · Score: 1

      You can generally get away with making whatever you want if you're not making money off of it and it's for personal use. Once you start making kits and selling them, you're more likely to get sued.

  5. ok... so 3-5 years from now it gets granted... by Anonymous Coward · · Score: 0

    ... and by them FDM is out. FDM is too moody anyway.

  6. Re:Prior Art Disallows Patent Applications PERIOD. by Anonymous Coward · · Score: 0

    Uh, no, literally nothing disallows patent applications, I could file a patent application right now for The Wheel. One would certainly hope that my application would get rejected due to the abundance of prior art, but nothing stops me from applying. That's certainly not to say that no patents have ever been granted despite what many would consider prior art, it happens all the time, especially for patents as complicated and technical as MakerBots. And if the patent is granted, getting it removed becomes rather difficult, as it becomes a matter for civil courts which can be prohibitively expensive for private individuals trying to take on a large company.

  7. Re:Prior Art Disallows Patent Applications PERIOD. by Anonymous Coward · · Score: 0

    And their "competitors" will have to spend time and money to invalidate the patent instead of building better products and paying their employees. Many companies and people have been put out of business because they could not afford to fight.

  8. Re:Prior Art Disallows Patent Applications PERIOD. by Thantik · · Score: 4, Informative

    http://en.wikipedia.org/wiki/F... might be worth a read for you. With the USA no longer being on a "First to Invent" system, and instead "First Inventor to File" means that MakerBot is likely looking to use this change in order to snatch up inventions from the open source community as their own.

  9. Re:Prior Art Disallows Patent Applications PERIOD. by Em+Adespoton · · Score: 1

    All it takes is copies of prior inventors work & videos that show someone else showed the idea first & filed with the patent office and then any later patent application/s are deemed unpatentable.

    Been that way forever.

    ...the gotcha is the "filed with the patent office" bit. Has anyone done this? Also, it's easy to add a few extra words to a patent application to say "...but not like that prior art; this one has X as well!"

  10. Re:Prior Art Disallows Patent Applications PERIOD. by BoRegardless · · Score: 1

    First to invent versus First to file does NOT invalidate the existance of prior art.

  11. I used to like them by AndyKron · · Score: 1

    I bought a Makerbot because I really loved that it was open source. Today, I hate those fucking ASSHOLES!

  12. Re:Prior Art Disallows Patent Applications PERIOD. by NoKaOi · · Score: 3, Interesting

    It's only "first to file" if the other party is seeking a patent on it too. Prior art means it's not patentable by anybody if Makerbot was first to file but there was prior art. Also remember that if they filed a provisional patent application, then that is their filing date, so any art shown after that is not prior art (I have no idea if that's the case here). Additionally, the filing date of the patent was 10/29/2013 (even though the publication date was a couple days ago). So if the prior art was shown after that (conceivably as early as 10/29/2012 depending on if there was a PPA and its filing date) then it doesn't count as prior art. It could be argued for obviousness if a bunch of others came up with it independently, but that generally comes down to who has the biggest legal budget.

    I actually read the patent claims (not the detailed description or TFA, however). What's different about the patent and what's been in use for a while is that the sensor is triggered by a force on the "tip of the extruder" rather than sensors mounted to carriage. Normally in 3D printer terminology, extruder != hot end, but the diagrams and their description shows that they consider the hot end nozzle the "extruder tip."

  13. ...of a 3D printer! by Anonymous Coward · · Score: 0

    Is this the new "...on the internet", "...on a phone" target where people will patent obvious concepts and implementations and apply them to some slightly different domain and claim it's "novel"?

    Auto-leveling is by no means a new idea. Auto-leveling of a 3D printer? Uh-mazing? Lolno.

    And when are the horrible assholes who developed Slashdot going to fix this ridiculous and constant "The resource is no longer valid" bullshit?

  14. That's how competition works by ourlovecanlastforeve · · Score: 1

    In which we discover that you don't make a public video of your technology until you've secured your own patent.

  15. Re:Prior Art Disallows Patent Applications PERIOD. by BoRegardless · · Score: 1

    $1500 is the filing fee to submit prior art documents against a patent application filing.

    Lots of these are filed every year.

  16. I never would have bought a Thing-O-Matic kit... by Paul+Fernhout · · Score: 1

    .. if I had known MakerBot would start doing questionable patent stuff like this instead of the openness they seemed to promise back then.

    --
    A 21st century issue: the irony of technologies of abundance in the hands of those still thinking in terms of scarcity.
  17. Duh, prior art. by Anonymous Coward · · Score: 0

    Sorry, everybody else already seems to have said this. " Not only is this an important upcoming technology for 3D printers, the restriction of which would be a huge blow to progress, it seems the patent was filed just a few short weeks after Steve Graber posted a video demonstrating such auto-leveling. "

    So he can't get a patent because it's already been publicly disclosed! So there is no problem.

  18. Check the dates... by Theaetetus · · Score: 3, Interesting
    From the article:

    So I quickly checked the publication date, and recalled that Steve Graber, whose work we have been basing off of on the FSR auto levelling for the Kossel / Kossel Pro, had published a video of his setup last year:
    https://plus.google.com/110997...
    Sure enough, the patent was filed 20+ days after Steve Graber had published his video demostrating probeless auto-levelling.

    Steve Graber's video is dated October 6, 2013. The patent application was filed October 29, 2013. That sure is damning... but wait, what's this in the very first line of the application?

    RELATED APPLICATIONS
    This application claims the benefit of U.S. Pat. App. 61/719,874, filed Oct. 29, 2012, the entirety of which is incorporated by reference herein.

    This is a non-provisional application of a provisional patent application that was filed a year earlier, well before Graber's video. His video may be "art", but it's not "prior".

    This is not to say that (i) the patent application is valid and should be granted; or (ii) that MakerBot is above reproach, or anything else about it... but just that the article author seems to have gone off half-cocked.

    1. Re:Check the dates... by TerenceTam · · Score: 5, Informative

      TL;DR: If you care about open source hardware development, share early and share frequently so that we can establish a public record of prior art, should this come up again. I"m the owner of OpenBeamUSA and the author of the blog post. Yes, you are correct, a provisional patent was filed a year prior to the Oct 29th, 2013 filing date that is on file with the USPTO. However, (and please correct me if I am wrong on this - I am not a patent lawyer) it is my understanding that for the claims to be valid to the Oct 2012 date, they have to be present in the 2012 patent. Companies patenting things normally file a "junk" patent to hold their place in line, where they make one or two very basic claim about their products. Then in the course of the year, they pile in the rest of the claims and flesh it out. Only the claims that are supported by the 2012 provisional patent filing dates can be backdated to the 2012 priority date. In other words, if I claimed that I invented a computer controlled hot glue gun (my newbie friendly explanation of what a 3D Printer is) on Oct 2012 but added in Oct 2013 that my claim involves putting a switch on the glue gun head, the 2013 date is what the patent examiner would go by when examining prior art. Without being able to see what was filed in Oct 2012, it is not 100% clear whether Mr. Graber's video constitutes as prior art. My guess though, is that Makerbot did not actually have everything fleshed out in October of 2012. Given that in March of 2013, they are still relying on their community for improvement ideas: http://www.makerbot.com/blog/2... - which is now subjected to scrutiny due to another one of their patents: http://www.freepatentsonline.c... (The alternative explanation is that they actually did have their stuff together to file patents on the new extruder design, but intentionally shipped a substandard product leaving the community to fix it. Neither scenario paints them in a good light.) This one is going to be interesting to watch. While the US moved from first to invent to first to file during the time this patent was in provisional patent status, prior art invalidates both first to invent and first to file. The real question is can they find a way around all this prior art claim, when one of Makerbot's founder (Zack) was an active contributor to the reprap project. My guess is that the IP is sufficiently tainted that it would be very hard to find a path forward that has no prior art. While the legitimacy of the prior art I've sited is being questioned, my real objectives are: A) To encourage other Open Source Hardware developers to keep sharing, early and often to establish prior art in a public way, and B) Raise awareness that Makerbot is trying to patent ideas that originated from within the Reprap community, and to show how we can work within the USPTO's system to challenge said patents. This way people who are more knowledgeable than I can step forward and fight this. And given that there's a bunch of people now posting various examples of automated bed levelling dating back to 2008, I've seemed to have done my job to get the ball rolling. -=- Terence

  19. Re:Prior Art Disallows Patent Applications PERIOD. by MoFoQ · · Score: 3, Interesting

    According to the exchange on stackexchange.com referenced in the article, apparently you can submit up to 3 free. Beyond that, there's a fee.

  20. Re:2014-Era Patents by Anonymous Coward · · Score: 1

    As a gay person I'm always baffled why homophobes seem to fixate on the sex thing. They seem to think about it hell of a lot more than I do.

  21. Re:I never would have bought a Thing-O-Matic kit.. by Anonymous Coward · · Score: 0

    Really? One look at Bre Pettis wasn't enough?

  22. Re:2014-Era Patents by Anonymous Coward · · Score: 0

    As a gay person I'm always baffled why homophobes seem to fixate on the sex thing. They seem to think about it hell of a lot more than I do.

    Heres a tip; they aren't afraid of you.

  23. Re:Prior Art Disallows Patent Applications PERIOD. by jythie · · Score: 1

    Invalidate no, but it does mean that not everything we in the community would consider prior art actually is.

  24. Backdating? by Anonymous Coward · · Score: 0

    Wierd, been trying to find an third party copy of said filing. The date was Oct. 29, 2013 on a cached copy I had.

    Perhaps someone was bribed to change a letter in the date.

  25. B9Creations by Anonymous Coward · · Score: 0

    Not just MakerBot. There's also this crap from B9Creations.

  26. Defensive patents? by jklovanc · · Score: 2

    Some patents are filed defensively. The patents is filed so that no one else can file. The patent is not intended to be defended, one does not have to, but is a defense against someone else getting the patent. In some cases it is less expensive to file a patent than to get a patent overturned.

  27. Re:2014-Era Patents by Anonymous Coward · · Score: 1

    It's not that a gay person is atracted to a man's rectum per se. A gay person is attracted to another *man*. And then when it comes to sex he has to make do with what's available. And by the way, loads and loads of straight people like anal sex (you don't get pregnant, feels quite good) , but people don't seem bothered by it when straight people do it.

  28. Re:Prior Art Disallows Patent Applications PERIOD. by thegarbz · · Score: 1

    Please expand on what you mean here because as far as I understand it we are talking about a very specific technology being implemented and demonstrated, and that very same technology then being patented by someone else.

    It's not like the typical Apple vs Samsung fan fight where we're saying the latch on my gate is prior art to slide to unlock, it looks like they are actually taking an existing technology and patenting it. Not even a technology that was in the process, but one that was demonstrated and shown working.

    How would that in any sensible or otherwise definition of the phrase not be "prior art"?

  29. Claims aren't needed on filing by Anonymous Coward · · Score: 1

    At, least that's the situation in Europe. You only need to file a description and accompanying diagrams. Claims and abstract have to be submitted within 12 months.

    As long as you mentioned your glue head can be "switched on" somewhere in the (usually lengthy) patent description, then you can claim for that a year later.

    What you can't do is claim for something NOT described in the application. This is why applications tend to cover everything plus the kitchen sink. To the uninitiated it looks like someone's trying to patent the world, but in fact it's just ensuring nothing gets left out.

    The whole point to this system is precisely because you don't normally have everything "fleshed out" on day one. You need to file your application to protect the invention ASAP, but also need time to identify exactly what you've invented. It's a trade off. The application is cheap, getting a patent granted is expensive - especially if you go for international (PCT) coverage. An inventor needs that year to test market and finesse the idea before committing.

  30. Thingiverse = Stratasys Patent Fishing Pond by Anonymous Coward · · Score: 1

    There is no good sense in planting a flag in the enemy's back yard to mark the location of your good idea.

    Not supporting Makerbot at every turn will take a toll on their sales, but odds are that Stratasys must sell 500 Makerbots to earn what they do with the sale of a single Fortis system. When they decide to shut down Makerbot, it will be with a sigh of relief and no noticable hit to their bottom line. I shudder thinking what end user support is like with those crappy Makerbot machines.

    Ultimately the only thing that will win the battle is shear volume of makers making and sharing their carefully licensed, freely available ideas. The fight we're having is completely analogous to the one still raging between consumers and the RCIA and MPAA, and I think that fight is finally turning a corner. Entrenched industry wants us to fear them and the most disarming thing we makers can do is give them the one finger salute and keep making and encourage everyone we can to make along with us. They can't sue everyone, and since 'everyone' is us, that's the best lever we have.

  31. Read your history... by Anonymous Coward · · Score: 0

    After all, nobody acquires a patent warchest just to invite their competitors to sit around the campfire to sing Kumbaya.

    "Marconi is a good fellow. Let him continue. He is using seventeen of my patents." -- Nikola Tesla

  32. Re:Prior Art Disallows Patent Applications PERIOD. by dabadab · · Score: 1

    Can we please stop spreading this stupidity?

    The difference between first to invent and first to file has absolutely nothing to do with prior art. Nothing. Nada. Zilch.

    It only comes into play when two patent applications are filed for the same invention in roughly the same time because it is how it will be decided which one will be accepted.
    (And, should I elaborate this even more, in this case there are no conflicting patent applications, it's about prior art and prior art has nothing to do with first to file.)

    --
    Real life is overrated.
  33. Re:2014-Era Patents by Anonymous Coward · · Score: 0

    If there's something I find more repulsive than faggots, that would be the whoremongers engaging in female sodomy.
    Just keep your damn AIDS-infested johneses away from people's assholes!