Intellectual Property And 3D Printing

INTRODUCTION TO 3D PRINTING

The process of additive manufacturing/3D printing refers to the building of material, typically layer by layer. The uses of this technology vary from utilitarian purposes to aesthetic and hybrid purposes. In light of the future uses of 3D printing where it may be used for innovation, manufacturing, household purposes, there are high chances of the technology intersecting with the rights of IP right holders under the copyright, patent and designs regime of IP law and the creation of sui generis rights in order to address the challenges posed by this technology. [1] This process is based on a Digital Manufacturing File (“DMF”) created from either a 3D scanner or a Computer Aided Design software (“CAD”).

ADVANTAGES AND DISADVANTAGES OF 3D PRINTING

The European Parliament Resolution on 3D printing viewed the technology as one of the most prominent advancements in today’s day and age and recognized the rapid growth in the sector, particularly in the future years.[2] The resolution further highlighted that 3D printing as a technology has the potential to change the supply chains in manufacturing processes hereby facilitating Europe to increase its output levels along with providing new opportunities in the areas of business development and innovation in order to bring about an industrial transformation.[3] The European Commission has made 3D printing a priority area of technology keeping in mind its noteworthy economic impact and potential for small and innovative businesses. In light of such potential effects of 3D printing, the European Parliament believes strategies should be implemented to “create an economic and technological ecosystem to promote its development”.[4]

INTERPLAY BETWEEN IPR AND 3D PRINTING

The high number of stakeholders considering the 3D object is conceived, modified and printed by different parties;[5] and the complexity of the process of 3D printing will make it difficult for the end users to identify the owner of such objects created by 3D printing. Such a scenario poses ambiguity in determining liability and the question emerges as to whether the liability in case of an infringing/counterfeited/damaged product will lie with the vendor, creator or the producer of such an object.[6] The liability rules between stakeholders for commercial purposes is usually governed by contractual law however the legislation, when the need be, will have to extend the rule of general liability or establish a specific liability regime[7] for such purposes. It will be important for jurisdictions to explicitly define responsibility and identify the various parties involved in the process of making an object through 3D printing.[8] The law in due time, provided the impediments of 3D printing technology are overcome, will have to address the question of ownership and determine the extent of the applicability of the law of co-authorship and co-inventors under the copyright and patent regime respectively. [9]

Due to the digitalization of copyrightable content like music, film and the publishing industry, copyright holders had to resort to licensed distribution channels like subscription services and subsidized download rates in order to ensure authorized and licensed use of their copyright subject matter.[10] It is suggested by the targeted research conducted by the UK IPO that similar strategies and open licensing can be deployed to regulate 3D printing markets and the distribution of 3D print digital files.[11] The Maker Movement has relied upon open licensing systems in order to facilitate the sharing of 3D print files.[12] Although these suggestions need to be refined and put into place once the technological use of 3D printers pans out in the market, thus affecting the IP right holders in the digital domain.

3D printing advances the possibility of copying almost any object with/without authorization from the existing IP right holders of such protected works. [13] Copyright protects the originality element of a work and grants exclusive reproduction rights to the author/creator of such work. In a scenario where copies are made of an original object through 3D printing sans authorization, the author/creator has certain rights under the IP legislations through which relief can be obtained. The IP regime pertaining to industrial designs protects the shapes and aesthetics, patents protect the technical utility of an invention and a 3D trademark protects the mark of the trader and acts as a badge of origin for the goods.[14]

As far as the current situation is concerned, the research project conducted by the UK IPO acknowledged that the use of 3D printing technologies is limited to more or less prototyping owing to its limitations and lack of skills to operate the system. [15] 3D printing is not in an advanced position as of yet to replace the present system of subtractive manufacturing and bulk production in factories as part of the manufacturing processes. [16] There are major physical and biochemical impediments for the use of 3D printing, as it may seem like anything can be printed with any raw material, however the utility of such objects is still limited in its form for e.g. a human heart may be reproduced by the process of 3D printing, however it still cannot perform the functions of a beating human heart. The process of 3D printing as recognized by the UK IPO, involves different product colors which entails multiple batches of plastic powder/wire. [17] Moreover, the speed of the process is slow and the level of complex knowledge required to print objects for useful purposes is high. [18]

CONCLUSION

To deal with the impediments that may occur in the future due to the deployment of 3D printing in commercial settings, a mixture of both legal and technical solutions will need to be introduced. It is highly probable that the solution may lie outside the law.It will be essential to involve all stakeholders including SMEs and consumers whilst deciding measures to be taken and changes to be made in the view of 3D printing technology.[19]

The current IP regime seems to be sufficient to cater to the protection of 3D files and users of 3D printing technology for private and non-commercial use exceptions. The impact of the use of 3D printing in the light of industrial application and consumer consumption will be interesting to monitor, in order for the law to accept reforms with respect to the use of such technology as the lag allows the technology to mature before the IP regime deals with such issues.

The impact of 3D printing on the economic value of IP right holders is dependent upon the extent and purposes for which the technology is used. It seems best so as to let the technology and its effects develop before amending the legislation to play catch up.

Author:  Harleen Sethi, LLM (Intellectual Property and Technology Laws) Student at National University of Singapore, in case of any queries please contact/write back to us at aishani@khuranaandkhurana.com.

References:

[1] The National Additive Manufacturing Innovation Cluster (NAMIC) was formed in 2015 by Spring Singapore and the National Research Foundation to assist companies in order to develop their capabilities in the domain area of 3D printing.

[2]European Parliament, “Three-dimensional printing: intellectual property rights and civil liability” (2018) 2 (“EU- 3D Printing”)

[3] Ibid

[4] Ibid

[5]Elsa Malaty and GuildaRostama, ‘3D Printing and IP Law’ (2017) WIPO Magazine<https://www.wipo.int/wipo_magazine/en/2017/01/article_0006.html> accessed 16 November 2019 (“WIPOMagazine”) 5

[6] EU-3D Printing (n 2) 4

[7] Ibid 4

[8]Ibid 6

[9]WIPO Magazine (n 5) 5

[10]Thomas Birtchnell and others, United Kingdom Intellectual Property Office, ‘3D Printing and Intellectual Property Futures’ (2018) 2 (“UK IPO”) 25

[11]Ibid

[12] Matthew Rimmer, ‘3D Printing, the Maker Movement, IP litigation and Legal Reform’ (2019) WIPO Magazine <https://www.wipo.int/wipo_magazine/en/2019/05/article_0007.html> accessed 17 November 2019, 8 (“Rimmer 2019”)

[13]WIPO Magazine (n 5) 4

[14]Ibid 4

[15]UK IPO (n 10)5, 10

[16] Ibid

[17] UK IPO (n 10) 12

[18] Ibid 13

[19]EU-3D Printing (n 2) 6

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