3D Printing: Friend or Foe of the Intellectual Property (IP) Rights Holder?

Covid-19

In the past couple of months, the global population has not only proverbially had their eyes glued on the Covid-19 pandemic, but also their bodies glued to their chairs, at home.

In combating the virus, governments have put in place lockdown regulations which have kept the populace homebound. The lockdown regulations imposed by most governments significantly obstructed the manufacture and distribution of products or, at best, resulted in the increase in lead times to have products manufactured and distributed.

While there were many shortages, a particularly concerning one was a lack of access to medical supplies and personal protective equipment (PPE), which were slowly running out all over the world.  This motivated businesses to find alternative manufacturing techniques to address this challenge.

3D printing comes to the rescue

Fortunately, 3D printing – a technology which has been in existence since 1984, and that has gained popularity and momentum between 2004 and 2019 – could in some cases be resorted to, and was innovatively employed by many companies and individuals to address these shortages.  For the uninitiated, suffice it to say that 3D printing involves successive printing of layers of material, in three dimensions, based on a CAD file, to produce a 3D article/product.

While 3D printing has been hailed a hero at responding to the clarion call for addressing shortages in medical equipment and PPE in the past couple of months, and rightly so, it is not surprising that the sudden need for this technology has again brought to the fore the debate among many legal academics, IP practitioners, and IP rights holders of the impact that its proliferation may have on IP rights enforcement.

Challenges posed by 3D printing to IP rights enforcement

One of the challenges to IP rights holders, arising from the use of 3D printing technology, is its expected decentralized nature, in that one would ultimately expect to see a 3D printer in many homes, as prolific as, say, personal computers.

This decentralised nature – which, in effect, would make the end user both the manufacturer and consumer of the product – lowers the barrier to entry of many products. The traditional approach of manufacturing products in factories at manufacturing hubs and having those products assembled in factories at assembly hubs before their transportation to end users or distributors, may therefore be almost entirely eliminated by the 3D printing technology.

This would make the enforcement of IP protected products manufactured unlawfully, and the detection of IP rights infringement, very difficult. Even where infringement is detected, enforcement may not be financially viable due to the small scale of the infringement.

Another challenge is the ease with which products may be scanned and converted into CAD files, which may then be used by a consumer to produce 3D reproductions without the need for an original CAD file.  This poses a significant problem for IP rights holders since, while they may be able to protect their CAD files, they cannot protect their products against scanning.

Lastly, the ease with which CAD files can be shared over the internet is also another stumbling block which needs to be navigated around by current and future IP rights holders.

Sophisticated approach to IP protection

It may thus be argued that IP law systems may currently be ill-equipped to address the enforcement concerns presented by 3D-printing, perhaps in the same way in which the IP law systems battled with, and arguably still continue to battle with, addressing the illegal sharing of data (including music, movies, etc) over the world wide web.  This is, of course, not necessarily a problem that arises from IP laws as they are written per se.  More so, as noted above, the challenges arise from the decentralised nature of these types of infringements.  Whether there are amendments that may be made to IP laws that may effectively overcome enforcement challenges, is a matter of debate.

In some respects, technology has, and may still, come to the aid of IP rights holders, in making it technologically challenging to circumvent existing IP laws.  These include so-called technical protection services, which comprise examples such as watermarking, encryption, access control, and copy protection (for CD’s and CD devices).  It may well be that, in order to address 3D printing concerns, the same would need to happen, and that one may initially go through a period of difficulty, before technology comes to fill the void.

Until then, it is believed that it remains imperative for IP creators to adopt a robust IP strategy that places them in the strongest position possible, to enforce their rights if the need arises.

This may require a hybrid approach which includes (a) having claims in a patent application which are directed at covering digital twins of an invention, (b) having design protection for the preferred embodiment of an invention, and (c) relying on copyright protection.  These, used in conjunction with technical protection services, strong business practices, and internal business security measures, may assist in keeping the proverbial wolves of 3D-printing at bay.

It remains to be seen how IP laws around 3D-printing will develop in the next couple of years and, with it, technologies for preventing circumvention thereof.  Something to watch as well would be the attitude which will be adopted by courts in interpreting IP rights infringement cases in this field of technology.

Until the law has set clear boundaries around 3D-printing, it seems clear, at least for now, that the current IP laws would have to suffice.

Pieter Visagie
Partner | Patent Attorney
Thapelo Montong
Senior Associate | Patent Attorney
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