IP challenges: Is 3D printing protecting or infringing?

by viktoriavakratsa

Intellectual property law is mentioned most often as the legal regime around 3D printing since it affects IP law and issues of product safety and product liability fit to the relevance of a 3D printed world. From the automotive industry to medicine and biotechnology 3D printers can reach results where no human hand can or ever will.

Such revolutions in technology often allow a comparison between the issue of computer-aided design (CAD) files[1] to the digital files on the Internet. The new technologies made copying easier; as the CSC consultancy pointed: ‘3D printing is providing a platform for the collaboration that is accelerating innovation and disruption of the material world, just as the Internet fostered collaboration, innovation and disruption in the digital world’[2].

Innovation, creativity, originality? A question of awarding intellectual property rights equitably is generated. Where should we draw the balance of intellectual property rights protection? Particularly, when the 3D printer can be protected mostly due to its complex engineering design (i.e. the design of the printer, the software used behind printing mechanism, the patent for the working of the invention), and simultaneously produce a counterfeit or knockoff of the original product; designs are made available on the Internet and the owners’ intellectual property rights are exposed and potentially abused. A 3D printer will therefore be liable for secondary infringement in the creative industries[3].

3D printing for the government could interfere with the public interest in fostering creativity and innovation. As such, the debate continues to develop and issues arise relating to intellectual property. For instance the capability of CAD files to get protection. The territorial nature of  copyright protection for software is in conflict with the extraterritorial nature of online platforms, thus leading to uncertainty regarding the applicable intellectual property protection regime. For the industry, on the other hand, protection would secure streaming for 3D CAD files as licensing of such files becomes increasingly and wisely used. On a specific note, the automotive industry has given consideration to traceability of 3D printed spare parts focusing on safety and usability[4], giving creditable focus on the capabilities of such manufacturing processes.

It is unclear whether the industrial use of 3D printing is capable of taking over traditional manufacturing processes[5]. The emergence of online 3D printing platforms becomes relevant and significant due to consumer power and opportunity through personalisation of the product. Brands are therefore forced to ‘push up’ marketing strategies, to enhance intellectual property in general and unleash the innovative potential over the manufacturing technologies[6]. Infringement claims may be of low-value as deterrents, since patent courts (at least in the UK) are designed to avoid high legal costs, but the value of claims has considerably increased[7]. Interestingly enough, 3D printing companies manage to avoid infringement claims by undertaking due diligence to protect the products before manufacturing, for example by contractually ensuring the 3D printed products will be of private use excluding any commercial exploitation thereof. These contractual arrangements in respect of intellectual property may nevertheless be inadequate if enforcement is imars rival. On that note, the UK Intellectual Property Office[8] has taken considerable steps to review the legal environment and address such questions. However, the issues  are developing rapidly and it is highly possible that clarifying the legal environment around 3D printing will be left to the authority of the Courts. The issue is to be regarded on an international basis in due course.

Viktoria Vakratsa

Assistant Editor, QMJIP

 

[1] The use of computer systems to aid in the creation, modification, analysis, or optimization of a design. CAD output is often in the form of electronic files (printing) while its software is used to increase the productivity of the designer, improve the quality of design, and to create a database for manufacturing

[2] WIPO Magazine, April 2013. http://www.wipo.int/wipo_magazine/en/2013/02/article_0004.html, accessed on 15 February 2016

[3] http://www.computerweekly.com/opinion/The-intellectual-property-challenges-from-3D-printing, accessed 15 February 2016

[4] 3D Printing Research Reports, Intellectual Property Office, 29 April 2015, found in https://www.gov.uk/government/publications/3d-printing-research-reports, accessed in 15 February 2016.

[5] https://www.linkedin.com/pulse/4-ways-3d-printing-change-dubais-economy-dominic-wright?trk=prof-post&trk=hp-feed-article-title-share

[6] WIPO Magazine, April 2013. http://www.wipo.int/wipo_magazine/en/2013/02/article_0004.html, accessed on 15 February 2016

[7] http://www.computerweekly.com/opinion/The-intellectual-property-challenges-from-3D-printing, accessed 15 February 2016

[8] UK Intellectual Property Office, https://www.gov.uk/government/organisations/intellectual-property-office