How 3D Printing Challenges the Current Patent System

Blogs October 11, 2017

IPR and Technology

From spare car parts to live tissue and from guns to medicine, additive manufacturing, also known as 3D printing, is on the edge of revolutionizing industries. 3D printing is a computer-based manufacturing technology which enables a process of manufacturing three dimensional physical objects from a computer-aided design (CAD) in the form of a digital file – similar to a blueprint. It enables almost anyone to create anything.

Large corporations in the medical industry are just a few more steps away from being able to bioprint living organ transplants, 3D printed medicine is already in the markets, whilst 3D printed prosthetics are frequently used, including total knee, hip, and shoulder replacements. Lego has explored the opportunity of 3D printing Lego bricks and applied for a patent, while the world’s largest truck manufacturer recently announced that, rather than shipping spare parts across the globe from Germany, it will now send a CAD file of the spare part to a printer so that the spare part can be printed onsite.

It has been estimated that by 2018 global IP losses due to additive manufacturing will rise to approximately 100 billion euros, and that the industry will grow to an over 25 billion euro industry by 2019. Prices of 3D printers are now affordable to both private individuals and small to mid-size companies, some selling for less than 1000 euros. As 3D printing becomes more popular within consumers and businesses, with already several existing online platforms facilitating the sharing of ideas and designs, the expansion of the industry has created concerns and uncertainty over IP rights, including questions regarding the ownership of designs, copying parts by scanning and printing them, and the counterfeiting of component parts of protected designs. Arguably, patent rights are most at risk.

3D Printing and Patent Protection

When analysing the legal framework of IP protection, patent law has so far provided the most comprehensive protection for proprietary technical IP. However, even its full force struggles to cover additive manufacturing technologies. With additive manufacturing’s new forms of infringement and novel rights creation, traditional IP regimes are faced with unexpected new challenges. Several patent law principles inhibit rights holders from benefiting from full patent protection, making it is essential for those seeking to safeguard their IP to carefully analyse their options under current patent regimes along with other IP laws, in order to uncover the most suitable and cost-effective form of rights protection.

It is evident that the current patent framework is ill-equipped to deal with the challenges that additive manufacturing might force industries to face. As the technology rapidly evolves, patent laws struggle to keep up to pace, while traditional IP doctrines prove unfit for this revolutionary technological innovation. Hundreds of thousands of patens exist and it is highly unlikely that ordinary consumers know which devices are covered by a patent. Therefore, even if they do infringe patent laws, they would seldom know the exact patent they are infringing when using a 3D printer.

Other forms of tackling IP issues in additive manufacturing

Copyright law is likely to play an important role in additive manufacturing. The CAD files steering the actual printing process should enjoy copyright protection. To conclude, businesses manufacturing and selling copyrighted objects should have enforceable copyrights. Moreover, additive manufacturing is likely to face a fair share of misuse of trade secret claims. Nowadays, trade secrets protect a variety of proprietary IP, and many businesses have already chosen trade secret law as means of protecting their innovations outside the patent system. One major advantage of trade secret protection is that litigation is usually not as costly and burdensome as other forms of IP litigation.

Some scholars have argued that, focus should be concentrated on CAD files rather than the printed object or component. With copyright law the situation is easier: digital files themselves infringe. Unlike in patent law, they are copies of the work. To constitute an infringement, a tangible version of an invention needs to be made. Nonetheless, if the object subject to infringement is a “click-away” for someone in possession of a CAD file and a 3D printer, the author opines that the CAD files themselves ought to be viewed as digital patent infringement, identical to copyright law. It has been argued that, when CAD files of patented items are sold, this should constitute infringement. The CAD file has specific value due to the patented innovation and therefore, the seller is appropriating the economic value of the invention. Nonetheless, only possession of a CAD file of a patented object should not constitute infringement. What the patent system does is to urge others to design around patents that exist, and the design process itself is often done virtually. If the CAD file itself would constitute infringement, the entire patent system would forfeit the beneficial improvement efforts.

The full extent of the impact of additive manufacturing remains to be seen. As precedents from the music and film industry indicate, the more accessible content is made for consumers, the less likely they are to turn to illegal downloads. Moreover, the rights holders need to understand the technology and the existing options for the protection of their IP rights or else, risk being left behind in the phenomenon that could constitute the next industrial revolution. With infringers, rather than focusing on the actual infringing objects, it would be more beneficial to concentrate on the CAD files. As case law around the subject is still lacking, it is unclear how IP issues around additive manufacturing are to be tackled in the courts of different jurisdictions. In any event, additive manufacturing will pose many legal challenges to current IP laws, especially patent regimes. It is possible that one of the greatest technological and revolutionary innovations of our time may ultimately undermine a key engine of innovation: the patent system.