3D Printing: Great For The Public, But A Challenge Facing IP Law

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3d-printing

By: Abby Johansen,

The idea of three-dimensional printing is not brand new, but the impact of 3D printing’s recent boom and untapped potential presents plenty of new and complicated issues within the realm of intellectual property law.[1] 3D printing allows for the creation or replication of nearly any desired three-dimensional item by the instruction of a “Computer Aided Design” (CAD) file.[2] CAD files are “templates that can be utilized by a computer to print 3D-objects.”[3] It is the CAD files that give the 3D printer specific instructions regarding how to make the desired item. CAD files have unlimited potential as they can be based upon a new idea or they can be generated by scanning a 3D object already in existence.[4] Anyone can make or access CAD files, which has helped to propel the rapid dissemination of 3D printing to the general public.[5]

There are many benefits associated with the growing 3D printing industry, including the potential for the reduction of waste and energy consumption for manufacturers and a decrease in costs associated with labor and raw materials involved in the production process.[6] It is the potential for widespread use throughout any industry and the potential for personal use that makes 3D printing so unique and lucrative. 3D printing is already being used in some of the biggest manufacturing industries like the automotive, aerospace, architecture, fashion, food, and healthcare industries.[7] In a recent United States Patent and Trademark Office (USPTO) blog post, it was reported that the number of 3D printing-related patents filed has increased by 23 times this year as compared with 2010 patent filings, and trademark filings relate to 3D printing have increased by over three times since 2010.[8] Just as 3D printing is working its way into a vast number of industries, 3D printing is already having an impact on intellectual property law.

Due to the reduction of costs associated with 3D printing, affordability of the actual printers and ease of access to their related software is on the rise.[9] The potential for widespread use of 3D printers is not limited to any particular industry, use by any particular type of person, or within any particular geographic area. It is predicted that the market will soon be ready to see 3D printers sold by the masses to the general public in retailers like Walmart or Costco.[10] The potential for widespread use and ease of access to 3D printing has created, and will continue to cause, substantial risks within intellectual property law regimes.

All types of intellectual property protection will likely be impacted by the rise of 3D printing in some crucial way. However, 3D printing allows for the potential to evade the patent system as a whole.[11] Every time a 3D printer creates a copy or a replica of a patented innovation, without permission from the patent holder, it is comparable to the loss of a potential sale for that patent owner.[12] Beyond the increased temptation for infringement, it may also be difficult for patent owners to seek a remedy from infringers. An individual patent owner cannot control every person across the globe with access to a 3D printer to ensure against infringement.[13]

Copyrights face similar risks resulting from 3D printing, as infringement can occur just as easily as with patents. Copyrights may be infringed upon if a 3D printer is used to create a print out of a work protected by a copyright.[14] On the other hand, it is uncertain as to whether 3D printing and the software associated with it can or should even receive copyright protection.[15] Copyright questions relate to both the CAD files and the actual printed item. Protection could potentially exists in blueprints, images, designs printed on the surface of an item, and in the software used to instruct the operation of the printer or in making the CAD design files.[16] Whether a CAD file should be considered as a derivative work of copyright depends on whether the CAD file is a direct copy of the underlying work or whether it was changed or modified.[17] It has been noted that in a 3D printing context, “third party printing services will need a license to use copyright-protected blueprints to print and distribute 3D objects, or to copy and make available to the public 3D objects that have copyrighted images or designs on them.”[18] So, those with copyright protection will need to evaluate and potentially adjust their licensing plains and fees as a result of 3D printing.

Trademark and trade secret protections do not escape effects of the expanding 3D printing industry either. Improperly scanning or printing an item with a trademark may also be considered as infringement.[19] 3D printings of trademarked objects with certain logos or designs could easily confuse consumers as to the actual source of the particular item, which is exactly what trademark protections aim to prevent.[20] Finally, there is a trend occurring where those looking to protect their 3D printed works or associated software are turning away from the more traditional patent or copyright protection and are looking towards trade secret protection instead.[21] Those involved within the software side of 3D printing may face less challenges when recovering damages for trade secret misappropriation and may receive less scrutiny when awarded damages than those litigating through other IP protection areas.[22]

3D printing brings to light the very real fact that the law is often behind the rapid growth and development of scientific and technological advancements.[23] Balancing intellectual property rights and 3D printing needs to stress the importance’s of “user’s rights in 3D printings” and its benefits to society as there is a “need for IP law and policy around 3D printing that views IP as an instrument serving social and cultural values in a balanced environment for consumers, manufacturers, and IP owners.”[24] As 3D printings continues to grow and further reach the public, those involved, at any step of the 3D printing process need to be conscious of how IP rights are created, enforces, and the risks associated with infringement, not only within their own country but on a global scale.[25] Those who recognize these rights and risks and have adapted their business models to permit others to 3D print their products through specific licensing fees are likely to see an increase in revenue.[26] Specifically in the U.S., Congress needs to take action, through new or updated statutes and regulations, to provide clear standards for the expanding 3D printing industry, in order to encourage the continued dissemination of 3D printing while maintaining intellectual property protections for past and future works.

 

[1] See Shira Perlmutter, Intellectual Property and the Challenge of 3D Printing, USPTO: Director’s Forum: A Blog From USPTO’s Leadership (July 15, 2016), https://www.uspto.gov/blog/director/entry/intellectual_property_and_the_challenge.

[2] See Tabrez Y. Ebrahim, 3D Printing: Digital Infringement & Digital Regulation, 14 Nw. J. Tech. & Intell. Prop. 37, 39 (2016).

[3] See id. at 41.

[4] See id.

[5] See id.

[6] See Cerys W. Davies, Managing IP Issues is a Challenge for Manufacturers in the Age of 3D Printing, Says Expert (June 20, 2016), http://www.out-law.com/en/articles/2016/june/managing-ip-issues-is-a-challenge-for-manufacturers-in-the-age-of-3d-printing-says-expert/.

[7] See Angela R. Vicari & David Soofian, 3D Printing: New Legal Issues Emerge with the Technology’s Revolutionary Potential, Mondaq (Oct. 3, 2016), http://www.mondaq.com/unitedstates/x/529188/Product+Liability+Safety/3D+Printing+New+Legal+Issues+Emerge+with+the+Technologys+Revolutionary+Potential.

[8] See Perlmutter, supra note 1.

[9] See Davies, supra note 6.

[10] See Tesh W. Dange, The Left Shark, Thrones, Sculptures and Unprintable Triable: 3D Printing and It’s Intersections with IP, 25 Alb. L. J. Sci. & Tech. 573, 576 (2015).

[11] See Timothy Holbrook, How 3-D Printing Threatens Our Patent System, Scientific American (Jan. 6, 2016), http://www.scientificamerican.com/article/how-3-d-printing-threatens-our-patent-system1/.

[12] See id.

[13] See Dange, supra note 10, at 580-81.

[14] See Melissa Koch & Brian Stansbury, 3-D Printing: Innovation, Opportunities, and Risk, Law360 (Feb. 24, 2016), http://www.law360.com/articles/757265/3-d-printing-innovation-opportunities-and-risk.

[15] See Ebrahim, supra note 2, at 44.

[16] See Davies, supra note 6.

[17] See Dange, supra note 13.

[18] See Davies, supra note 6.

[19] See id.

[20] See Ebrahim, supra note 2, at 43.

[21] See Bryan Vogel, Anticipating IP Trends in 3-D Printing, Law360 (July 1, 2015), http://www.law360.com/articles/663880/anticipating-ip-trends-in-3-d-printing?article_related_content=1.

[22] See id.

[23] See Viarci & Soofian, supra note 7.

[24] See Dange, supra note 10, at 591.

[25] See Davies, supra note 6.

[26] See id.

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