3D PRINTING AND IP INFRINGEMENTS

3D printing is on the rise, and with it comes a host of compelling legal challenges. This article briefly explores how 3D printing can infringe on intellectual property rights and which options are available against infringers.

Consumers

One of the big advantages of 3D printing is the possibility to produce spare parts. As a general rule, if an object is protected by IP rights, then copying it will violate those rights. However, there are private (non-commercial) use exceptions, in particular with regard to consumers.

In particular, 3D printing done at home may become a significant problem due to these exceptions.

Commercial 3D printing

Here, copying protected objects might violate a range of intellectual property rights.

Patents

There is a number of factors to consider when deciding whether a spare part can be reproduced without infringing a patent. Those factors are:

3D printing will probably cause manufacturers to register patents that specifically address spare parts.

Trademarks and the tort of passing off

Trademarks may be infringed if, for example, 3D-copied goods feature a brand name on them. Brand owners can claim lost sales due to counterfeiting and might have to prevent the copied products from damaging their goodwill. In addition, the IP rights-holders will want to consider an action under the tort of passing off, which might be particularly useful if the trademarks are unregistered.

Copyright and design

Copyright protection is only available if an object was created for an artistic purpose. This will rarely be the case with 3D replicated functional spare parts.

Furthermore, unregistered or registered design rights might grant protection. However, design protection is problematic where (even small) changes were made to the design.

Printing services provided by third parties and online CAD file-sharing

Those are production networks, whereby a person orders a copy of an object online, which is then produced locally using 3D printing services offered by a company, cheaper and quicker than ordering an original replacement from the manufacturer.

There are a few different avenues that an IP rights-holder can pursue in this scenario. First, they can sue commercial 3D printing companies that assist consumers in infringing IP rights. It has to be noted in this context that it can be difficult to detect and to prove infringement.

Moreover, the end-consumers might be pursued 'directly'. Apart from practical difficulties of this approach (e.g. identification and location of the end-consumer), most companies will be reluctant to essentially pursue their own customers. Other available options are:

In summary, it is safe to say that designers should obtain patent rights where possible and register their designs, rather than relying on unregistered designs or even copyright.