INTELLECTUAL PROPERTY IN 3D PRINTING AND NANOTECHNOLOGY - 3D Bioprinting and Nanotechnology in Tissue Engineering and Regenerative Medicine - page 350

16.8.1 TRADEMARK INFRINGEMENT
Trademark infringement occurs when someone uses a mark, such as a word, logo, slogan, or other
identifying mark as his or her own, without permission from the owner of the mark. Infringement
causes confusion among consumers, who are not able to distinguish between products and services
made and sold by the owner of the trademark and products and services made and sold by the trade-
mark infringer. The end result may be lost profits and a tarnished reputation for the trademark owner.
In tissue engineering, the end product—the tissue and organs themselves—may not be subject to trade-
mark infringement unless the tissue or organs are branded. This may or may not happen. At this time,
trademark protection is more appropriate for the hardware used to create 3D printed tissue and organs.
16.8.2 TRADE SECRET MISAPPROPRIATION
Trade secret infringement (called “misappropriation”) occurs when a trade secret, such as a secret
method of treating tissue with nanomaterials, is stolen from the trade secret owner and used for unfair
competition. To allege trade secret misappropriation, the trade secret owner must first prove that a trade
secret existed by showing that (1) it was not generally known to the public, (2) it conferred a competi-
tive advantage to the owner, and (3) reasonable steps were taken to maintain secrecy ( Cornell Univer-
sity Law School, 2014a ). However, if the accused misappropriator can show independent development
of the same method without using the trade secret, such independent discovery is a complete defense,
and there is no misappropriation.
Applying these principles to tissue engineering, an innovator may invent methods for creating or
treating tissue to exhibit certain desirable properties, such as high biocompatibility or extraordinary
drug delivery capabilities. The innovator could hold a trade secret if the method is not publicly known
or apparent from simply observing the tissue. The innovator would have the ability to sue thieves who
learned of the method by stealing the innovator's lab notebook, hacking into the innovator's computer
where the method was documented, or leaving the innovator's employ and setting up a competing com-
pany. However, the innovator would not be able to sue another innovator who independently came up
with the same method. The independent discovery defense is one of the caveats to trade secret protec-
tion. As discussed later, patent protection overcomes the independent discovery defense, albeit at the
cost of disclosing the secret method to the public.
16.8.3 COPYRIGHT INFRINGEMENT
To prove copyright infringement, the copyright owner must show that its copyrighted work was repro-
duced, distributed, performed, publicly displayed, or made into a derivative work without the copyright
owner's permission ( United States Copyright Office, 2014 ). In 3D bioprinting and nanotechnology, copy-
right laws mainly protect the software used in computerized equipment, and possibly the digital blueprint
files that the 3D bioprinter uses to create tissue and organs. 6 Thus, detecting copyright infringement in
3D bioprinting involves comparing the copyright owner's software to the potential infringer's software.
While detecting software copyright infringement can be as easy as comparing source code, en-
forcing copyrights against 3D printing software may be a daunting task. 3D printing lends itself to
6 Current law probably does not favor copyright protection of the digital blueprint of functional products, such as tissue and
organs, but this could change.