Avoiding patent liability by making things at home

Section 60(5)(a) of the Patents Act 1977 provides that you can’t infringe any patents by doing an act in private and for non-commercial purposes. Patent holders have presumably been reasonably unconcerned about the odd lone tinkerer making...

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Section 60(5)(a) of the Patents Act 1977 provides that you can’t infringe any patents by doing an act in private and for non-commercial purposes. Patent holders have presumably been reasonably unconcerned about the odd lone tinkerer making potentially infringing things in their shed, but the growing existence of personal 3d printers like RepRaps and Thing-o-matics makes it vastly simpler.

It wouldn’t surprise me if patent holders (and other pro-IP interest groups) start to lobby for a change in the law to remove this protection.

In addition to (allegedly) providing an incentive to innovate in the first place, it’s arguable that the grant of a patent also allows capital to be raised to finance the manufacturing infrastructure for the invention itself. To that extent at least, when the means of manufacture becomes so commoditised that it only costs a few hundred dollars, this argument disappears.

This issue isn’t limited to the manufacture of physical, mechanical goods. Intrepid individuals have also started to do genetic engineering in their own homes.

It’s interesting to speculate whether this may lead to people being able to purchase a device at home which would enable them to create custom DNA based on a pre-determined sequence, and insert it into some compliant bacteria which would then obediently excrete the corresponding compound, for example, the cancer drug which they would otherwise be paying tens of thousands of pounds a month for. Where will they get the DNA sequence from?

The often-forgotten quid-pro-quo of the patent bargain is that in exchange for getting a limited monopoly, the patentee is required to publish the invention (which is why patents are public documents) in such a way that an expert skilled in the relevant art can recreate the invention.

In theory, at least, the skilled tinkerer should be able to manufacture the drug at home using the instructions contained in the patent: the barrier is currently the cost and complexity of the equipment required. Currently, but possibly not for much longer.

In practice, patents tend to be much more impenetrable. There’s an argument to say that software patents should contain sample source code which implements the invention, but in practice, they very rarely do.

3D printers may seem limited now, but it’s inevitable that their descendants in the next decade or so will become very much more capable. And next will be home genetic engineering machines. Be vigilant! We don’t want to see this valuable right eroded.

[Thanks to Dr. Amy Leung and Avi Freeman for clarifying some issues for me as I drafted this blog post]