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Wilbanks Is National Finalist for Legal Writing Award

 


 

Mason Law third-year student Kelsey Wilbanks was a national finalist for the Judge John R. Brown Award for Excellence in Legal Writing for her Comment published in the George Mason Law Review

Wilbanks’s Comment, The Challenges of 3D Printing to the Repair-Reconstruction Doctrine in Patent Law, explores potential patent law implications that arise when consumers use 3D printing to create replacement parts for objects. Specifically, when someone 3D prints multiple replacement parts to a patented object during one time period, they risk running afoul of patent law through infringing “reconstruction.” Patent law currently holds that a person has the legal right to "repair" a patented object, but not the right to "reconstruct" it. The Supreme Court has said that repair means preserving an object’s useful life, whereas reconstruction occurs when a person makes a second creation of a patented product. This legal distinction becomes more complex and context dependent when a person replaces several parts to an object at one time, which, Wilbanks argues, will become very common in the wake of 3D printing.

Wilbanks argues that the Supreme Court should adopt refined standards to make the repair-reconstruction analysis more clear, consistent, and predictable for patent holders and consumers who use 3D print technology. Her first proposed standard is an “all-or-nothing” standard. If the entire device is not copied, it does not qualify as infringing “reconstruction.”  Her second proposed standard shifts the burden of proof to the plaintiff patent-holder when defendants use “repair” as an affirmative defense. In her third and final proposed standard, Wilbanks advocates an approach set forth by Justice Brennan in a concurrence of an early Supreme Court repair-reconstruction case. This standard considers several factors—the patent holder’s intent, the user’s intent, and the life, importance, and cost of the part replaced in relation to the patented whole—to determine whether a consumer repaired or reconstructed a patented item. Any of these three approaches, Wilbanks argues, would lessen the ambiguities within the current repair-reconstruction legal doctrine.

Wilbanks's Comment can be read here.