3D images are now widely used in many industries, including product design, manufacturing, architecture, training and preparation for surgery, dental modeling, and geology. All of this is possible with images that were rendered in 2D only a few short years ago.
In a nod at Aqua’s hit Barbie Girl from 1997, we live in a world of 3D. Virtually anything that can be rendered in 2D today can be visualized and rendered in 3D. Digitally capture and manipulate the creations of your mind – innovations, inventions, and intangible improvement – without ever having to construct anything.
Often, however, law does not always keep up with innovation. Patent law is a good example.
A patent application must be submitted to the U.S. Patent Office before a U.S. patent can be obtained. This application must contain a written description of the “invention”, and if necessary, any drawings that are useful in understanding this invention.
Patent Act of 1790, our first law on patents, was the source of these requirements for patent application formats. A patent was granted at the time by submitting a written description of the invention, and, if appropriate, a prototype of the invention, to the Secretary Of State, then Thomas Jefferson. In 1793 the U.S. Patent Law was revised to require that the patent application include a detailed written description of the invention, including the method of use, in clear, precise and full terms, so that anyone skilled in the technical field of that invention could make and use it. The “enablement requirement” is still in place under U.S. Patent Law.
From 1790 until 1880, U.S. Patent applications included scale models (i.e. physical three-dimensional model) with the required written descriptions and drawings. This was especially true for patents related to machines. Unfortunately, many of these models were destroyed in 1836 and by fires at the patent offices in 1877. It is possible to submit a model for an invention today, but it is not done very often.
The current patenting process is to turn an idea into a physical prototype. You first conceptualize the invention, perhaps even visualizing it in 3D graphics. (You don’t have to build a prototype). You then prepare and submit a patent application, which is a 2D written document with 2D illustrations. This allows you to disclose the invention and claim it. Each patent claim outlines the scope of a patented invention in written form. The U.S. Patent Office examines the written application and if it is deemed patentable issues a certificate (in 2D like a paper doll). Each patent certificate has been issued digitally since April 2023. It is a PDF (so it’s still 2D).
The use of 3D graphics is now technically possible, but it has no official role to play in the patent process. Everything is still done in 2D. A Patent Examiner may conduct a digital or in-person demonstration as part of an interview. However, any 3D demonstration files are not included in the U.S. Patent Office records.
We still live in the 2D world when it comes to issuing U.S. Patents. Each 3D invention must be “flattened” into 2D before being examined and issued as a U.S. Patent.
When it comes time to determine if a competitor’s machine or product falls under the patent scope, the 2D claims must be “unflattened”, to see if the words are sufficiently broad to cover an actual product (i.e. 3D), or machine that is allegedly infringing. It seems that we could do better, given the evolution of imaging technology.
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