Germany: 3D Printers And Intellectual Property Rights

Last Updated: 21 August 2014
Article by Michael Rüberg

Undoubtedly one of the most exciting technological developments of recent years, whose effects on the conventional value creation chain is hard to predict: the possibilities for almost anyone to use a 3D scanner and 3D printer to measure three dimensional objects and then automatically "print them out", i.e. to simply and quickly reproduce them without any own skills in relation to the manufacturing process. Whilst the technological developments in this area are making advancements with impressive speed and the necessary equipment and devices are becoming ever more affordable, some limits are becoming evident in relation to intellectual property law.


The basic principle of an automised manufacture of complex physical objects is not new: for some time now, automatic milling machines, increasingly employing laser technology, have been used to "carve" finished models from blocks of material. The range of possibilities stretches from rough, metal objects for industry to fine, ceramic inlays for dental technology. Now, the innovation in the case of "3D printers" is that liquid or powdered raw materials (in particular plastics but also metals) are sprayed, like in an ink-jet printer, and then naturally harden (or are made to harden through the application of external factors such as heat) to create a solid form. Through vertical and horizontal movements of the printer head, the hardened material can thus be built up, "layer by layer" to make a three dimensional model. This technique is considerably more flexible in its range of applications than the traditional "carving technique". In time, it may enable the creation of almost any physical product at will, once the necessary developments have been achieved in the materials which can be used, in the "resolution" of the printout (i.e. the possible level of detail and complexity of the product to be printed) as well as the possibility of using different materials in a single print run.  

The result of the above process is a precise physical object according to electronic design plans. Thus, 3D printers are particularly suited to copying already existing objects. Accordingly, with the result qualifying as a replica of an existing object, there are legal risks and limits inherent in the process, with as the respective stages of the printing process potentially conflicting with the various intellectual property rights involved.    

Individual production stages   

If one looks at the technical procedure of 3D printing through a lawyer's eyes, two basic steps of the reproduction process can be identified which should each be examined individually:  

Firstly, prior to the actual production itself, a printing plan is created, namely the electronic blueprint on the basis of which the printed product is later made. The printing plan can either be drawn "by hand" (normally with the help of CAD software) or, as will likely be the standard method in future, created automatically with the help of a "3D scanner", which electronically scans an existing object. The printing plan is inherently important from an economic perspective, as it ultimately defines the entire external appearance of the product later produced. It is consequently a valuable asset in its own right which can be independently exploited, for example, by being offered for sale and download on the internet.  

Secondly, the product - the physical object - is then automatically created on the basis of the printing plan, by the 3D printer, upon addition of the required raw materials. This product can subsequently be used or exploited in a variety of ways. As the quality of such products improves, they will likely become valuable economic goods in their own right.  

Conflicting intellectual property rights

In the course of the exploitation steps mentioned above, there is potential for conflicts in relation to all types of intellectual property. In Germany, the following are primarily affected:  

  • Patent and utility model rights (where an object is reproduced, the technical invention of which is protected through the registration of the relevant rights),
  • Copyrights (where an object is reproduced, which is not technical in nature but is, at least in part, also the expression of artistic/aesthetic design),
  • Trade mark rights (where a trade marked object is reproduced, such as the logo of a branded goods manufacturer),
  • Design rights (which are explicitly related to the external shape of the object, as is most commonly reproduced in the case of 3D printing).  

All of the intellectual property rights mentioned are associated with exclusivity and prohibition rights, which may limit the freedom of individual manufacture as follows:            

Creation of the printing plans  

In the creation of the printing plans themselves, it is mainly copyrights which will be affected, if the object used as the template is subject to such protection. In this context, the reproduction of a protected work will have copyright relevance even if it is transformed into another type of work. Under German law, this includes the transformation of physical objects into two or three dimensional models by hand or by means of photography/scan (c.f. BGH GRUR 2004, 855 - "Hundefigur").  

In contrast, other intellectual property rights that may exist in the template object are not usually affected by the creation of the printing plan, as these are limited to the specific embodiment of the protected object itself and do not cover any respective transformation. Also, the creation of printing plans in relation to the later production of the protected object is usually viewed as a permitted act of preparation only (c.f. for patent law, LG Düsseldorf, InstGE 6, 130 - "Diffusor", Mes, PatG, 3rd ed. 2011, § 9 PatG, marg. no. 34).  

Exploitation of the printing plans  

Right from the initial stage of exploiting the printing plans, however, in particular when offering them for sale or bringing them onto the market (e.g. on online platforms), other rights can be affected in addition to copyrights (which expressly reserve for their proprietor, amongst other things, the right of making available to the public). These rights quite possibly include patent rights, utility model rights, trade mark rights and design rights.  

Firstly, supplying a third party with a printing plan for the specific purpose of that third party producing the printed object ("manufacturing on demand") can, depending on the individual case, constitute a contributory act on the part of the principal in the third party rights infringement (c.f. for patent law, e.g. OLG Düsseldorf, InstGE 7, 258 - "Loom-Möbel").   

Secondly, and of greater practical significance, in the case of the act of offering printing plans for sale or bringing them onto the market, this could constitute an indirect act of infringement in respect of patent rights, utility model rights and design rights. This is based on the fact that the printing plan represents a part being brought onto the market which, together with the use of other parts (namely the 3D printer and the relevant materials), contributes substantially and inherently to the manufacture of the protected object (c.f. Sec. 10 German Patent Act, Sec. 11 (2) German Utility Patent Act, Sec. 40 (1) German Design Act). However, in this context there remains the issue that German courts have so far not conclusively declared whether only physical objects can be considered as a suitable means for an indirect (patent) infringement (affirming this notion - BGH GRUR 2001, 228, 231 - "Luftheizgerät", contradicting this - LG Düsseldorf InstGE 1, 26, 32). The printing plans, which are always electronic, lack any physical form. In light of technological advancements and economic comparability of the means involved, irrespective of their physical form, one should however expect a corresponding relaxation of the respective criteria.  

In the same context, there is also the much discussed issue of additional liability for operators of online trading platforms on which the printing plans are offered by third parties. The question can be answered with the help of the criteria developed in German case law over the past few years based on whether platform operators are able to identify specific rights infringements and thus whether a duty of care and resulting liability applies (c.f. e.g. BGH CR 2008, 579 - "Internet-Versteigerung III"). It has yet to be clarified whether and to what extent stricter assessment criteria should, from the outset, be applied to printing plans relating to existing products, which carry the inherent risk of infringing intellectual property rights.  

Creation and exploitation of the printed product

The finished product, namely the reproduced physical object, is, in its manufacture and subsequent exploitation (offer for sale, bringing onto the market etc.) generally subject to all prohibition rights to the extent that it takes advantage of the respective protection rights. Both its manufacture and subsequent distribution are thus generally reserved for the right holders, aside from the exceptions for private use as laid out below.    

One interesting exception from a trade mark law perspective is that the manufacture of a miniature, as is often the case due to the size of 3D printers and the cost of materials, does not, according to more recent case law in Germany, usually constitute an act of infringement even if the miniature contains an unchanged brand logo (c.f. BGH GRUR 2010, 726 - "Open Blitz II").  

Alongside this, however, the question is also raised as to the responsibility of service providers, such as the operators of "copy shops" which merely make 3D printers (and possibly the required materials) available but who exert no influence on the design of the specific objects made. From a copyright law perspective there already exist statutory and judicially developed requirements such as a broader exemption from liability for operators of conventional copy shops on the one hand and a flat rate levy on the copying devices on the other hand (c.f. Sec. 53 et seq. German Copyright Act). The application of these requirements in the context at hand, however, still lacks clarification (c.f. here, Großkopf, CR 2012, 618, 623). For other intellectual property rights, this type of manufacture is largely new and requires regulation, as the conventional criteria – which usually attribute the manufacture to all persons involved in the manufacture either as perpetrators or at least as aiders and abettors in the third party rights infringement, mostly without exception – should not to be applied without sufficient reflection.  

Private use exception

Intellectual property law in Germany has its limit, in different forms, in the purely private sphere, i.e. if the use of the protected product exclusively for non-commercial purposes. If the law is restricted in this respect, the otherwise existing rights to prohibit use are not assertable.  

In respect of the copyrights affected, according to Sec. 53 German Copyright Act, the reproduction of individual (limited in number) printing plans and printed products is allowed, provided it is solely for private use, namely, in particular, for meeting personal needs. However, in such cases, the origin of the reproduction, the source from which the reproduction is taken, may not by "obviously illegal". This raises similar questions in respect of the ability to identify potential rights infringements, as in the case of the aforementioned monitoring obligations for platform operators.    

In respect of other rights to prohibit use, the private user is firstly free to produce protected products outside the course of trade i.e. in the private sphere (Sec. 11 No. 1 German Patent Act, Sec. 12 No. 1 German Utility Patent Act, Sec. 14 (2) German Trade Mark Act). The printed product created in the scope of permitted private use can accordingly even become legitimate economic goods, for example if they are supplied free of charge to closely associated third parties or, in particular circumstances, their sale following their own use, provided this does not constitute a commercial transaction (c.f. for example BGH, GRUR 2009, 871 - "Ohrclips"). Unlike in the area of copyright law, there is no restriction in terms of numbers so that in principle, any number of printing plans or printed products can be produced for private use. However, as soon as a commercial purpose enters the exploitation process, even if only indirectly, the exception is exceeded and a rights infringement is once more possible.  

In the scope of application of the exceptions, "manufacturing on demand" is in principle also permissible, as in this context the private use of the principal is of crucial importance. Due to the risk that rights infringements could nevertheless occur in this area (for example as a result of an excess use by the contractor) the current discussion is at least demanding the principal be advised of the respective restrictions on use or the printing service provider being clearly identifiable as non-commercial in nature.  


The use of 3D printing clearly involves some challenges with regard to intellectual property rights. Additional challenges may arise from potential copyright protection of the printing plans and printed products (as own intellectual creations, for example through modifications of the blueprints) or supplementary protection under the laws of unfair competition/passing off.

Consequently, it will remain interesting to observe developments in this field, not only from a technical perspective but also from a legal perspective and to see how intellectual property rights can adequately provide limits for the increasing freedoms of individual manufacture.  

BOEHMERT&BOEHMERT will continue to monitor technical and legal advancements in this area and inform you - also through these pages - of all relevant developments.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.