Are Trade Secrets and Trademarks the Future?

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Last week I wrote a piece about analogue copying. Specifically, it centred on the 3D scanning and copying of an Aston Martin – because that was how somebody framed the question to me.

This provoked plenty of thoughtful comment, which I encouraged people to post over on my other blog, since a slightly longer format was needed than this blog could accommodate. However, because the original piece was posted here, I've decided to reply to them here (sorry if this bloggy to-ing and fro-ing causes digital travel sickness.)

One common thread to the comments was the view that I was discussing the wrong thing:

The key is the use of a digital pattern for driving the 3d printer.

3d object scanning isn't relevant in the beginning --- that's the equivalent of creating a Beatles CD using the songs taped off the radio. It's sufficiently different from the original to not worry to original manufacturer.

and:

A printer is a digital player like any other. For music you put air in, you get music out. With a printer it's paper and ink, a reprap uses plastic. It's the digital instructions that describe the output where the power lies --- and the property disputes. The recorded music industry (as traditionally structured) is just the first casualty of this.

As I said, I framed my answer because of the way the question was posed. In fact, I quite agree, manufacturers will quickly move to creating digital files which are then output on 3D printers – no argument. Then, as one of the commenters puts it:

the "analogue original" will have a digital blueprint, in effect meaning that making an "analogue copy" will be equivalent to obtaining a digital copy of the blueprint (from The Pirate Bay), and then rendering it in an analogue form, just as we render digital music into analogue sound waves in order to use it..

There's a couple of important points there. First, even if you obtained that file from the analogue section of The Pirate Bay or equivalent, and printed out an identical copy of the authentic Aston Martin (or whatever it represented), I submit that the issues of safety that I dwelt on in my original post would still be relevant. Just because something *looks* identical with the original, doesn't mean it is – not least in terms of security. Again, I don't think many people would happily ride in an A380 that was printed from the original files but which had not been independently certified as airworthy: you simply don't want to take that risk.

On the other hand, there is a vast class of objects for which safety is not an issue – or one sufficiently minor that the cost factor outweighs it. In which case, the key question will be whether others can get hold of those digital files that represent the analogue object. If you can, then it will be possible to produce “perfect” counterfeits, where authenticity and safety are not really enough to encourage people to buy from the original manufacturer. This, in its turn, means that manufacturers will choose to keep those designs secret – because once a single copy is on the Internet, it will, of course, be ubiquitous.

In effect, then, patents will become irrelevant, because infringement would take place everywhere, all the time, making them unenforceable (just as copyright has become irrelevant already, because unenforceable). Instead, I suggest, companies will turn adopt the Coca Cola approach, whereby the “secret sauce” that is key to a product is known to very few, and where keeping it secret is a crucial aspect of running the business. That's another reason why I concentrated on the 3D scan and 3D copy approach: because I think this will be prove to be a common way of making counterfeits. Yes, using the files would be much better, but I believe it will be much harder obtaining them for that very reason.

Now, some might say that this retreat into the widespread use of trade secrets to protect products is a huge loss to humanity, and a backward step from the current situation where people patent stuff – which, as the word originally meant, implies revealing to the world your secrets.

I think this is nonsense, and part of the romantic propaganda put about by those that use intellectual monopolies to stifle competition. Indeed, what is striking about so many patents today is that they reveal precisely *nothing*: they are either obvious, in which case they don't tell us anything we didn't already know, or else they are make such vague and general claims (even though patents aren't supposed to work like that) as to be useless for practical purposes.

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