Commentary: 3D printing

3D printing technology has advanced significantly in a relatively short period of time. The advances have resulted in it becoming more affordable, leading to an increase in the popularity of self production.

Given the range of products that can be created through 3D printing, any of the ‘traditional’ intellectual property (IP) rights may apply to a printed item. Patents could apply to a printed item as a whole, or component parts of the printed item. Registered designs can protect the appearance of an item or parts of an item, whilst unregistered design rights apply to the shape and configuration of items, and will equally apply to any copies. Copyright may protect the computer aided design (CAD) files, as well as the printed items, if they are ‘artistic works’. Lastly, of course, there is the trade mark aspect which will apply if the items are printed with a brand name or logo.

However, the advent of self-production is not without its side effects. Arguably, self-printing of goods disconnects from the concept of another party’s IP rights, and policing the infringement of your own IP rights is harder.

On a basic level, any copying of an object which is protected by intellectual property laws will be an infringement if it is done without permission; this is no different for traditionally manufactured goods or those produced by 3D printing using a CAD.

On that basis, although infringement actions can be brought through the courts, as in any other infringement claim, the reality is that it may be difficult to identify the infringers.

Traditionally manufactured counterfeit items can be seized on import, and Customs authorities play a vital role in stopping counterfeit goods reaching market. The use of CAD files means that the physical goods will not cross borders in the traditional way; the CAD file can be sent, and the recipient merely needs a 3D printer. In due course, there may be a more active role for Trading Standards to address counterfeit items within the jurisdiction.

Where CAD files are copied and released online, there may be specific actions which can be taken to remove the infringing files, and this is easier if the files have clearly been illegitimately obtained. There is also the possibility of taking action against internet service providers (ISPs) which are easier to locate than the owners of websites. Known as blocking injunctions, these have, particularly in light of recent cases in other areas involving ISPs, the potential to become a popular and potentially cost effective remedy against infringement.

The production of items bearing a brand name or logo, even for individual use, may infringe trade marks.

In the fields of patent and design law, the making of spare parts can, sometimes, be considered an exception to infringement, the result being a potential market for exploitation. However, the courts have given clear guidance as to when spare parts can be manufactured without infringing, so careful analysis must be applied to the spare part to be printed so as to avoid any assertions of infringement.

This potential market may conversely result in manufacturers being keener to register a patent that is specifically directed to spare parts and potential spare parts for their products.

In the fields of patent and design law there is also an exception to infringement where it is for personal use, but this exception does not exist in respect of copyright.

In light of the potential difficulties with addressing infringement, and indeed the potential for perfectly legitimate printing of items, there may be many commercial entities which decide to view the increase in 3D printing as a new opportunity to exploit the assets they hold. For example, design owners licencing use of their design files, providing a one print sale where a design is sent direct to the printer, or using 3D printing technology in store, to provide bespoke items for the client.

The content of this article is for general information only. For further information regarding 3D printing, please contact Maria Peyman or a member of Birketts’ Commercial Litigation Team.

This article is from the January 2018 issue of Upload, our monthly newsletter for professionals with an interest in technology. To download the latest issue, please visit the newsletter section of our website. Law covered as at January 2018..

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