By Mark Bell
IBM Senior IP Strategist - IBM IP Management Solutions
Intellectual Property issues are often flagged as an area of concern for the development of the software-defined supply chain, yet the nature of these perceived issues is not generally clearly identified.
CAD/CAM, CNC and fast prototyping techniques, FPGAs and ASICs are well established digital manufacturing techniques, however they tend to require considerable technical expertise, substantial customization and set-up effort and vary a great deal from implementation to implementation. This acts as barrier to infringement since even if one were to acquire digital design files for a particular product, the skills, equipment and effort needed to use it would be prohibitive. The software-defined supply chain emphasis on small scale local production and one hand and dependence on low cost open source solutions on the other will lead to a high degree of standardization in manufacturing platforms, so that it becomes feasible to reuse copied design files. Furthermore the dispersed nature of manufacturing means that such files will be more widely disseminated and more likely to be exposed.
The core concern is therefore that it will become possible to download copied plans for a product, and have the product manufactured without the originally creator having any control or receiving any remuneration.
Protecting your investment in distributable designs
Digital product designs will generally be protected by copyright which benefits from good harmonization worldwide, and may furthermore be the subject of Patents, Design right, registered designs and Trademarks subject to local requirements. On this basis, the consumer and manufacturer in the scenario described above would almost certainly infringe the original creator's IP rights and expose themselves to civil action. To this extent therefore, the IP system provides satisfactory basic tools for protection of the different types of value that may be embodied in a digital design. The lowering of the manufacturing hurdle makes it all the more important to ensure that relevant IP protection is identified and secured in good time.
The real issues here relate not to the primary law that is applicable, but rather to how it can be enforced. The software-defined supply chain implies a multiplication of possible infringers, most of which will be small businesses or even private individuals, with minimal liquidity and low liability for damages. The protection available under IP rights corresponds best to large scale infringements- bringing suit for IP infringement is a long and expensive business, and in a software-defined supply chain context may be out of all proportion with the recoverable damages.
The approaches developed in the electronic media field may provide a useful starting point when looking for solutions to these perceived problems.
For certain digital products it is usual to make distribution subject to contractual provisions which define how the consumer may use the product, address warranty issues and cover redress and termination matters. Shrink wrap and click through licensing approaches have been developed and widely adopted. Open source style licensing where contract acceptance is implied through use of the code is a step further along this path which may be helpful in the context of distributable design files.
Digital Rights Management is another set of techniques developed in the digital media field. Such techniques may well be helpful in the case of distributable design files. DRM mechanisms might be tied to hardware dongles, manufacturing machinery or activation keys to ensure that only authorized manufacturers implement the designs. This suggests the development of distributable design file formats supporting encryption and other DRM enabling technologies. In some cases this may also call for contributions to the design of manufacturing machinery such as 3d printers to ensure that they are able to function correctly and securely with DRM protected distributable design files. This may well be relatively straight forward technically given the open source approach of many such printers, but may need careful management from a social point of view given the hostility of the open source movement generally to DRM.
While the primary path to enforcing IP rights is though litigation in the courts, the distributed nature of the software-defined supply chain makes this approach overly cumbersome, since the recoverable damages will often be less that the cost of the process itself. A number of Administrative and quasi judicial measures are currently available in some jurisdictions which may be taken as possible models for protection of distributable design files.
In some jurisdictions some types of IP infringement may be subject to sanctions under criminal law. This may enable the right holder to enlist the help of public law enforcement bodies to bring infringers to justice. Such activities may not always be within the remit of Police organizations, but Trading Standards and Customs bodies are often more familiar with actions of this kind. Generally such bodies are most comfortable with trademark enforcement, and organizations pursuing a software-defined supply chain model may do well to pay special attention to this aspect of their IP strategy.
Some jurisdictions have developed special measures relating to IP infringements using the internet, and in particular the downloading by consumers of media files from peer to peer networks and the like. The details of the process and available sanctions vary widely from jurisdiction to jurisdiction, and may involve a graduated series of warning messages, internet access restrictions and eventually as streamlined judicial process. These measures are designed with a view to the same need for light weight low cost processes that would be equally applicable in the case of software-defined supply chain infringements.
Other IP issues inherent in the software-defined supply chain
The Software-defined supply chain model suggests a variety of uses for open source material:
- Open source developed 3d printing equipment
- Open source firmware on products
- Open source distribution of design files for 3d printing
The adoption of open source materials in mission critical product manufacturing potentially exposes an organization to certain special risks, in particular
- the viral effects of certain open source licenses
- Difficulties in establishing provenance and/or licensing terms for code
- Difficulties in interpreting and complying with licensing terms
This suggests that businesses wishing to adopt Software-defined supply chain mode will need a high degree of sophistication and strong process for identifying and resolving such issues.
Handling third party design contributions
A key benefit of the Software-defined supply chain model is that it becomes viable to offer many variants of a product, to better correspond to local preferences or even the desires of individual consumers. While merely offering combinations of predefined choices does not raise any special IP issues, the approach's flexibility lends itself to third parties offering custom modifications and even the creation of communities of enthusiasts modifying the original designers works, or indeed the works of other enthusiasts. In this context the issues of control and ownership arise. Generally, any such modifications will constitute derivative works of the original design, and as such would constitute infringement of the copyright in those designs unless permitted by any applicable license agreement. While such scenarios can be inhibited by the use of the mechanisms described above, it may prove advantageous to foster this type of community contribution to some extent, and the license provides the means to achieve this. Indeed, this may be seen as a further advantage of the software-defined supply chain, since IP rights in physical products may be exhausted by sale of the product, whereas in a license based software defined product the original designer decides what rights to give. Accordingly, one approach may be to separate the design files into two or more licensing categories, with certain parts of the file frozen, and other parts left open to modification. The frozen parts might be encrypted or otherwise protected by DRM type mechanisms. The parts left open to modification, which may correspond to the external appearance of the article, may be licensed under an open source type license, or a license permitting modification and distribution, but stipulating that all modifications are ceded to the original designer. The issue of how modified designed may be used commercially will also need to be addressed.
While the existing IP regime provides the building blocks for adequate protection of investment in digitally distributable products, businesses and administrations have yet to use these blocks to build the platforms needed to make the approach commercially viable. These platforms will need to include light-weight, internationally harmonized enforcement mechanisms, and commercial and political acceptance of the technical and contractual models needed to support them. Businesses at the forefront of the software-defined supply chain movement will need to build these platforms
IP Management at IBM
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