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27 Sep 2016

Does 3D Printing open up a Pandora’s Box of IP violations?

By: Aparna M
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Three-Dimensional printing (3D printing or Additive Manufacturing) refers to the development of 3D physical objects from 3D digital model data in computer-aided design (CAD) or additive manufacturing (AM) file formats using computer-controlled 3D printers. The CAD files could be generated by scanning the real world objects that need to be printed or by designing objects digitally on a computer. 3D printing enables printing of any 3D physical object and considering the application of 3D printing technology in numerous fields, there is no doubt that it is one of the more important and exciting emerging technologies. 3D printing mitigates the complexities involved in manufacturing across various sectors and simplifies the processes.

3D printing technology is not new and has in fact been in existence for more than 30 years now. In the last couple of years, key patents in 3D printing which prevented others from using the technology have expired. Players involved in 3D printing are swift in adapting to pre-existing industrial printing processes. They are involved in research and innovation to redesign better 3D printing systems. As of now the countries that are actively involved in producing these 3D printing systems are Europe, China, United States of America and Japan.

With the improved 3D printing systems being available, the quality of the printed objects is improving while the cost of the 3D printers continues to drop. The 3D printing process allows rapid prototyping and manufacturing thereby reducing the process lead time involved in making 3D objects. Also, 3D printing allows for customization of products or components. All this is leading to an immense growth in 3D printing.

Impact

This technology is expected to have a huge impact on large number of industries globally and also to change the way products are manufactured especially by enabling rapid prototyping. One such impact could be decentralizing manufacturing process across the world, where products will be manufactured closer to customers or by customers itself. This further leads to devalue traditional methods of supply and distribution chains.

The 3D printers could be owned personally by large number of people at homes or have access to them at local stores. They then only need the necessary CAD/AM files for printing 3D objects. Over time, such files could well be downloaded online. While some web sites may have placed the CAD/AM files after obtaining due permission, others may have been placed without necessary permissions which could be misused by the users. The users might gain access to CAD files which enables them to print perhaps IP protected products. 3D printing technologies brings its own challenges and the IPR system might have to pace up to meet the challenges in future.

Intellectual Property issues with 3D Printing

3D printing technology touches upon various intellectual property rights, some of which are covered in section below.

Patent Protection

A patent allows its owner to prevent others from making, using, selling or importing the invention. On grant of a patent, the patent owner can enforce his rights for 20 years after which the technology will be made available to the public and is accessible to all. These enforceable rights help in keeping competitors out of the market, thus allowing the patent owner to recover costs and make profits. .

Patent protection against 3D printed products can be quite a task as 3D printing allows the product as a whole or its parts to be printed easily even at home with just a click of a button on the 3D printer. The CAD/AM files can be generated for various components or accessories of products and made available easily to vast number of people. This may well open the doors to counterfeiters who can print any products and sell them to consumers. If that product is covered by a patent (or patents), then such action would amount to an infringement and would adversely affect the Patentee as it would deprive him of otherwise expected revenues.

Several patents have been granted worldwide which covers 3D printing systems, its components and also 3D printing processes to produce 3D products. These Patents also cover 3D printing raw materials, such as powders, filaments, liquids or sheets. Some of the companies that hold key patents in 3D printing include Fujitsu, Stratasys, 3D Systems and HP. These companies have been involved in patent litigation related to 3D printing. 3D printing system as a whole can be developed and produced by single manufacturer or manufacturer can develop only the component and license it to other where it is assembled to be part of the 3D printing systems. Therefore the patent protection would require classification of components and manufacturers involved.

Copyright Protection

CAD/AM files are protected by copyright laws, which require permission to make a copy, modify or distribute. However, it has always been a challenge to protect digital files as they are easily accessible online or via peer to peer sharing. Some of the file sharing sites allow easy download of CAD files and use them for 3D printing products. The owners of the rights must monitor the web and use technological measures to take down unauthorized downloadable CAD/AM files to reduce the risk of illegal download and usage. United States copyright law provides the Digital Millennium Copyright Act (DMCA) which criminalizes production and dissemination of technology, devices, or services intended to circumvent measures such as digital rights management (DRM) that control access to copyrighted works. This could be implemented by sending DMCA take down notices when CAD files that are illegally placed online without permission are found. However, it requires the owners to constantly monitor online sites for infringing activity.

Trademark Protection

Even trademark holders will be faced with issues as counterfeiters can print products with a product name and logo. Consumers could be easily deceived into believing that the products sold to them are genuine.  Counterfeiters making 3D products with the rightful owner company’s name and product logo could damage the brand as these products might be made of inferior quality material or may not have followed the required safety standards etc. In order to protect the trademark in 3D printing era, the real brand owners must ensure that their trademarks are registered which would enable them to fight the counterfeiter more effectively.  In a world where 3D printing becomes more affordable and accessible, large players with deep pockets will find it easier to protect their intellectual property. It is the small and medium enterprises who already face trouble protecting their IP that will find the task more difficult or challenging.

Trade Secret Protection

Trade secret protection could also be considered for protecting the 3D printing industry as the details of the manufacturing process that led to the machine (3D printers) or 3D products is not usually disclosed. This definitely makes reverse engineering difficult however it is not impossible. Trade Secret protection plays a considerable role but it is expensive to keep know-how secret and the legal protection does not help against independent reverse engineering.

Implications

In the context of 3D printing, for a patent owner to sue for infringement, he/she needs to be aware of who is using 3D printers to illegally make the product. This would be quite a task as these printers will likely be widely distributed across various countries (even within a country, there could be many commercial 3D printers where users can get their files printed). Therefore, identifying and going after everyone who 3D prints IP protected objects will be an expensive endeavor and practically impossible.

Generally, IP Laws do provide protection against those who induce infringement too. So the IP owners could also target parties that are facilitating the infringement- in this case, “inducers” could include those who provide 3D printing services, sellers of 3D printers, or those provide downloadable/printable files. Indeed, it has been estimated that by 2018, the global financial loss in IP with respect to 3D printing will be as high as USD 100 billion per year.

Conclusion

One can expect large number of IP litigations ahead. However, at the same time, companies holding IP should actively monitor their IPs to deter infringement and enforce their rights. They could also build/modify business models in such a way that it allows them to protect their products in the face of 3D printing challenges. For example, provide a legal 3D printable file bundled with the original sale or for an additional cost, offer the buyer a 3D printing facility at approved centres (similar to authorized service centres). Such measures may curb infringement while also bolstering revenues. It remains to be seen if our current IP system will be able to adapt and evolve to meet the challenges posed by this technology.

Sources:

http://theconversation.com/how-3d-printing-threatens-our-patent-system-52665

http://www.insidecounsel.com/2016/02/09/lets-look-closer-at-3d-printing-and-ip-issues

http://www.wipo.int/edocs/pubdocs/en/wipo_pub_econstat_wp_28.pdf

http://www.acc.com/legalresources/publications/topten/tdpipc.cfm?makepdf=1

http://artlawjournal.com/does-copyright-and-trademark-law-protect-3d-printing/

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