3D Printing And Intellectual Property Rights

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Khurana and Khurana

Contributor

K&K is among leading IP and Commercial Law Practices in India with rankings and recommendations from Legal500, IAM, Chambers & Partners, AsiaIP, Acquisition-INTL, Corp-INTL, and Managing IP. K&K represents numerous entities through its 9 offices across India and over 160 professionals for varied IP, Corporate, Commercial, and Media/Entertainment Matters.
The 3-Dimensional printing technique is also known as the Additive Technique.
India Intellectual Property
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Abstract

The 3-Dimensional printing technique is also known as the Additive Technique. Although the process was highly expensive, and not everyone could afford the necessary machines, but now it has become much cheaper resulting in a substantial increase in this industry in recent years. It has become easy for the manufacturers to create products using this technique, the use of it is not only limited to the field of manufacturing but also it has been spread to other industries like fashion, medicine, aero-space, bio printing etc. In future, the world is going to see it's spread in other industries as well and with it's spread challenges to govern it will also increase. There would be need of proper laws to govern it as this technology can be a boon and a bane both. Its use can be done for both legal as well as illegal purposes. From creating clothes to creating guns. The major challenge will be to evolve laws which are in pace with the advancement in this technology. The Intellectual Property Rights law will be most effected by it. This article will address how 3D printing affects many IP law sectors, such as copyright, patents, trademarks, GI tags, and so on, and how these issues can be resolved by taking the necessary measures.

  1. Introduction

Many people may think that this technology is fairly new, but in reality, it has been present since decades. What we see in recent times, is the advancement in the technology. The 3D printing technology first emerged in 1980's for industrial applications. Since, then it has kept on advancing, with the growth in technology. Its application has also spread through a lot of sectors. However, the expiry of patent rights over many of these early technologies has prompted renewed interest in its potential to transform manufacturing supply chains.1 As, the technology is growing and most of the consumers are getting hands on it, it is hard to predict at what height it can reach, in which fields it can go and how many more laws will it effect.

If a century before it would have been told to people that they can get printed ears, printed clothes to wear, it would have been treated as the joke of the century, and people talking about it would have been labelled as fools. But at present time, these things have become a reality via use of 3D printing technology. The technology has become cheaper than some of the other technologies like moulding, forging, and sculpting used for the same purpose.

According to Market.us, The Global 3D Printing Market size is poised for significant growth, reaching USD 24 Billion in 2024.2 The sales are expected to witness a robust CAGR of 21.2% from 2024 to 2033.3 By 2033, the 3D printing demand is anticipated to reach a valuation of USD 135.4 Billion.4 It is estimated that by the end of 2028 the industry is going to become a 100-billion-dollar industry. Many experts are opining that the industry will pioneer the 4th Industrial Revolution.

Technological advancements in all eras were driven by a single motive of humans to do things in instant. Even today, whatever inventions are done, they are done to satisfy the need of humans to do things in instant without taking much time. The 3D printing technology has satisfied just that need. With the help of 3D printing technology large number of things can be produced in lesser time, than it takes to be produced from the machine. Although, it is a boon to the human need, it has become for the IP Laws.

In order to study intellectual property and its relation to 3D printing, we must first define the terms.5 The World Trade Organisation defines intellectual property as 'the rights given to persons over the creations of their minds'.6 Within this falls two categories: copyright, which offers ownership rights to original creations (by people or companies, where the person created it as part of their job) and industrial intellectual property, which includes trademarks, patents, and trade secrets.7

  1. What is 3D Printing Technology?

The very first stage in the 3D printing process is to generate a digital CAD file (Computer Aided Design Files) from which the object to be generated is digitally formatted using a 3D scanner or 3D print software. After that, the file is sent to a 3D printer using specialised software, which builds up layers upon layers of molten material to create the final thing, converting the digital model into a physical object. Another name for this procedure is additive manufacturing. The instructions that are contained in the digital file are interpreted by the printer. Some of the materials, used in the layering process are ceramics, metals, plastics, tissues, hybrid materials etc. For example, MIT's Computer Science and Artificial Intelligence Laboratory recently developed a 3D printing technique to print both solid and liquid materials at the same time using a modified off-the-shelf printer, opening up a huge range of possible future applications.8

The person printing a digital file does not necessarily have to be the individual who created it. It is available on the internet for download, and it can be utilised without the authorization of the individual who created it. It's not an expensive or time-consuming technique. Additionally, people can now obtain it due to advancements in technology and the wider availability of the approach. Within their four walls, the customers can design the things they desire.

The field of 3D printing technology is expanding at an astounding rate, finding applications in everything from fashion and cuisine to prostheses and regenerative medicine. As, the range of materials used for creating objects via the technology is expanding, the fields which will be impacted by the technology is also expanding.

Within the medical field, for example, researchers at the National University of Singapore have found a way to print customizable tablets that combine multiple drugs in a single tablet, so that doses of medicines are perfectly adapted to the needs of individual patients.9 3D printing is also making its mark in the fashion industry, as evidenced by the unveiling at New York Fashion Week in September 2016 of "Oscillation", a multi-coloured 3D-printed dress by three ASFOUR and New York-based designer Travis Finch.10 Even the agro-food industry is exploring the potential of 3D printing for customized food products.11

The 3D printing technology can also be used in bio-printing. Although, the technique of Bio-printing is still in infancy, the researchers have created knee meniscus, heart valve, spinal disk, other types of cartilage and bone, and an artificial ear using 3D Printers.12 The aero-space industry is not behind in the use of the 3D printing technology. In current scenario, NASA is experimenting with this technique, so that in future it can be used in the space station for rockets, satellites launching and manufacturing.13

  1. 3D Printing and IP Laws

One of the major concerns, of this technique is that its's use makes it possible to print almost every object.14 Although, this situation does not involve IP concerns specifically,15 but it can lead to the infringement of many other laws. It can lead to some illegal acts, since the technique has become widespread and accessible, the hobbyists can use it for the manufacturing of guns, weapons, bombs etc. As, these productions are done by hobbyists in their own house, it will not raise attention on the act and these people can manufacture it quite easily and supply these objects in black.

As, the technology can replicate almost everything, it is of uttermost importance that the inventor's and company's rights are firmly assured.16 In this regard, an adequate IP strategy is the best way to avoid any possible infringement from third parties.17 The original creators' rights are currently protected by intellectual property laws. In the current situation, copyright, patents, trademarks, GI Tags, and industrial design rights are sufficient to safeguard the original authors' rights. However, it is not true to say the same about the future. Laws that are in place now might not be able to keep up with the rapid advancement of technology in the future. Legislators must therefore look into this technology more closely and modify current legislation accordingly.

3.1 3D Printing and Copyright

Copyright mainly grants legal rights to the creators so that their original work does not get copied by some other unauthorized person. It is done so that the person who has invented the product gets all the benefits related to it including Monetary benefits. Whenever any person or establishment wants to use the invention, then they have to take the permission of the inventor otherwise they will be held liable under the copyright law. Original works include writing, video, photograph, computer software, audio recordings etc. In short, Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression.18 This protection is granted from the creation of the work and, therefore, requires no registration.19

In the US, the existing takedown system of the Digital Millennium Copyright Act can be applied to 3D printing.20 To protect their rights, intellectual property owners need to create copyrighted files of the products they wish to protect.21 They can also learn from piracy laws regarding digital file-sharing that ban the illegal duplication and distribution of copyrighted files.22

The perspective is unclear on whether the Cad files will qualify for the protection under the Copyright laws or not. Although, in this regard there have been certain successful cases, but these judgements were based on technical grounds, such as flaws in Non-Disclosure Agreements and Non-Compete Agreements.23 Same goes for the instructions given in the CAD files.

Copyrights cover expression and Data is officially not considered as an expression. It is an artificially manufactured information. When the CAD files will be labelled as the literary works then the same can be protected under the copyright laws and the same can be said true for the protection of the instructions given in these CAD files. Till then, the courts will have to decide these questions on case-to-case basis, by looking at the circumstances.

Another question which arose in the courts were, who will be given protection under the copyright law the person who has made the CAD file and uploaded it or the person who has downloaded that CAD file and by using the file generated the object via help of the 3D printers?24After a lot of brainstorming, the courts around the world have come to the conclusion that both these persons will be recognised as original creators under copyright law and their invention will be protected under IP Laws.

3.2 3D Printing and Patents

Patents are usually granted for inventions which are scientific in nature. But for being protected under Patent, it is necessary that the inventor has patented his/her invention with the government. Once, the inventor has the patent of the invention, no other person other than him can have the same technology in the nation. The government will exclude all the other persons, present in the nation from manufacturing, making, using, offering for sale, selling or importing the invention. Patents are given for inventions and not discovery. A patent is another type of protection that covers the technical aspects of an invention in an industrial landscape.25

For an invention to be patented, it is necessary that the invention is new i.e. it is not already existing in the current knowledge of the world. It should be unique according to the standards of people who possess skills in that field. It must be capable of industrial application, i.e. it must be such that it can be used or manufactured in an industry.

A patent may protect an improvement in its 3D printing process.26 While 3D printing technique is not in itself patentable.27 The innovation created using the technique, can be patented if it fulfils the required conditions for an innovation to be patented.

If a company manufactures another kind of 3D printer than it can be patented. However, if a company produces the invention, patented by any other person who has obtained patent for the invention than, it will lead to legal battle which will be costly and tedious for both the parties involved.

Another challenge which may arise, is hobbyists. Hobbyists are the person who pursue a particular hobby. These people produce the innovation using the 3D technology in their own home, within the 4-walls. So, it becomes very difficult to trace the infringement of the patents. With respect to patent law Article 30 of the TRIPS Agreement states that member countries "may provide limited exceptions to the exclusive rights conferred by a patent".28 Some national laws consider that the rights of the patent holder do not include acts performed in private for non-commercial purposes.29 In short, the patent laws will not be infringed if a private person is using it for a non-commercial purpose. Hence, the actions of the hobbyists although immoral, are not illegal as they do not infringe any law.

One alternative, for traditional patent protection, can be open-source 3D printing, which means that the CAD file will be patented but, it will be uploaded on the internet and anyone can use it to create the product. This can help to encourage innovation and competition in the 3D printing industry, as well as reducing the risk of patent infringement.30

3.3 3D Printing and Trademarks

Almost all the time people buy products based on a specific name or mark. When these names or marks, gets registered and legalized than it becomes trademark. For example, the symbol on NIKE shoes is a trademark, and when people see it in stores, they automatically recognize it and know, that the product is from the brand Nike. Many people are there, who copy these marks and brand names, so that they make profit out of it. As, people have a lot of trust in these brands. So, to ensure that their brand name or mark is not being used by some small business, the big businesses get their marks or brand names registered and legalized. Trademarks protect sellers' exclusive rights to use that brand name or mark.

The introduction of 3D printing has increased the potential of trademark infringement.31 Individuals can readily make physical things bearing trademarks using this technology, potentially leading to unauthorised use of registered trademarks.32 The problem is to effectively prevent and respond to such violations.33

A person become liable for trademark infringement, when the mark confuses the consumer. If the identical brand name or mark, has the capacity to confuse the consumer than it will lead to trademark infringement. The digital nature of 3D printing makes trademark enforcement more challenging. Unauthorised duplication can occur on global web platforms and markets. Identifying and punishing infringers, especially those who cross international borders, is extremely challenging.

Unlike traditional counterfeiting, which uses real products, 3D printing of trademarked items produces digital files that may be distributed and printed by many parties.34 Determining who committed the infringement first and proving it in court may be difficult. The process usually involves multiple stakeholders, ranging from the initial designer to the end user. The complexity of the supply chain makes it difficult to determine responsibility, particularly in cases of violation.35 In a multi-party setting, deciding who should be held liable for trademark infringement can be both legally and practically challenging.36

Article 6 of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), which has been transposed into EU law (EU Directive 2008/95/CE, Article 5), limits trademark protection to use "in the course of trade".37 This is another challenge, which is faced by almost all the IP laws, the trademark infringement only happens if the production is done for trade. If any private person is infringing the trademark, then there are no laws to him/her.

  1. Way Forward

The main point of contention between the IP laws and 3D printing is of hobbyists. Most of the IP laws are infringed due to the commercial productions of the objects for earning profit. In most cases, the private production is made an exception. As, these hobbyists, make products via using the 3D printing technology they infringe the rights of the original creator and businesses. Although, they may not be manufacturing these products for commercial use, but they have nonetheless, by not taking prior permission from the owner they have infringed his/her rights. The rules pertaining to intellectual property must be changed, and hobbyist behaviour must be monitored. Laws should be developed to hold them accountable for their deeds as well.

Given that the industry of 3D printing is developing at a rapid pace, governments need to closely monitor its progress. It is necessary to keep a constant eye on the changes that are taking place, and laws should be drafted accordingly. The government ought to take into account the present and future both while drafting laws. Strict regulations must be implemented to ensure that the method isn't utilised for illicit endeavours. Since it has already, become prevalent in many fields, we can predict that it will eventually take over nearly every field. It won't even be surprising if homes made with these technologies are constructed in the upcoming years. So, while drafting laws regarding it the government should keep in mind the future.

The process of 3D printing is multi-faceted, so it is difficult to trace the owner and the infringer in it. The person who has made the file is the real owner or the person who makes the product by using the 3D printer is the real owner. If the co-ownership is granted than, it will not be fair to the person who has developed all the algorithms regarding the creation and if the co-ownership is not granted than it will not be fair on the part of the person who has downloaded the CAD file and places it in the 3D printer who using layering process, creates the product. The later one, has not done any algorithms he has just downloaded the file and put it into the printer.

The infringers cannot also be traced, because of the multi-faceted nature of the process. One person uploads the CAD file and from there on it is downloaded by many as it is available on the internet for everyone to access. It will be quite a time-consuming process for the court to determine who was the first infringer. And if the first infringer is found, it will be hard for the court to find all the infringers. And even if the court finds them all, how many people are they going to convict.

To curb unauthorized use, if the object is protected by copyright, rights holders can make use of technological protection measures, the circumvention of which is expressly forbidden under the WIPO Copyright Treaty (Article 11).38 These measures make it possible, for example, to mark an object and its associated 3D print file with a unique identifier to monitor use.39 Close collaboration between rights holders and 3D printer manufacturers in applying these measures to models intended for 3D printers could be beneficial.40 Similarly, partnerships with sharing platforms that make 3D files publicly available could help curb unauthorized use.41

  1. Conclusion

The advent of 3D printing technology brings both opportunities and challenges to the realm of intellectual property (IP) laws. As the technology continues to advance and become more accessible, it poses significant implications for copyright, patents, trademarks, and other forms of IP protection.

The ease of creating digital CAD files and the widespread availability of 3D printing technology raise concerns about potential infringement of IP rights. Individuals can now easily replicate and distribute objects, potentially violating copyright, patent, and trademark laws. This presents challenges for rights holders in enforcing their IP rights and protecting their creations from unauthorized use.

In addressing these challenges, it's crucial for legislators and policymakers to adapt existing IP laws to keep pace with technological advancements. This may involve clarifying the applicability of copyright, patents, and trademarks to digital CAD files and 3D-printed objects. Additionally, mechanisms for enforcing IP rights in the digital realm need to be strengthened to deter infringement and protect the interests of creators and innovators.

One approach to addressing the issues surrounding 3D printing and IP laws is to encourage collaboration between rights holders, 3D printer manufacturers, and sharing platforms. By implementing technological protection measures and unique identifiers, it may be possible to monitor and control the use of digital files and prevent unauthorized reproduction of protected objects.

Furthermore, the role of hobbyists in the 3D printing landscape must be carefully considered. While many hobbyists may not intend to infringe IP rights for commercial gain, their actions can still have significant consequences for rights holders. Clear guidelines and regulations may be necessary to ensure accountability and fair use of 3D printing technology.

In summary, as 3D printing technology continues to evolve and proliferate across various industries, it's essential for stakeholders to collaborate and adapt IP laws to address the challenges posed by this transformative technology. By doing so, we can foster innovation while safeguarding the rights of creators and promoting responsible use of 3D printing technology.

Footnotes

1. Elsa Malaty, 3D printing and IP law, World Intellectual Property Organization (Apr. 2, 2024, 2:11 AM), https://www.wipo.int/wipo_magazine/en/2017/01/article_0006.html (hereinafter, WIPO).

2. Global Newswire, 3D Printing Market to Exceed USD 135.4 billion by 2033; Amid Rising Popularity of Additive Manufacturing Technologies, Global Newswire (Apr. 2, 2024, 6:56 PM), https://www.globenewswire.com/en/news-release/2024/01/03/2803293/0/en/3D-Printing-Market-to-Exceed
-USD-135-4-billion-by-2033-Amid-Rising-Popularity-of-Additive-Manufacturing-Technologies.html

3. Id.

4. Id.

5. Claire S., 3D Printing and Intellectual Property: Are the Laws Fit for Purpose?, 3D Natives (Apr. 2, 2024, 7:19 PM), https://www.3dnatives.com/en/3d-printing-and-intellectual-property-are-the-laws-fit-for-purpose-150320235/#! .

6. Id.

7. Id.

8. Supra, note 1.

9. Id.

10. Id.

11. Id.

12. Gokul Krishnan, 3D printing and IPR, Ipleaders (Apr. 3, 2024, 3:00 PM) https://blog.ipleaders.in/3d-printing-ipr/ .

13. Id.

14. Supra, note 1.

15. Id.

16. Montaury Pimenta, Machado & Vieira de Mello, A brief overview of 3D printing in the intellectual property field, Lexology (Apr.3, 2024. 4:08 PM) https://www.lexology.com/library/detail.aspx?g=1e70dcd8-ac47-42b3-a9c8-12eba4ead1dd .

17. Id.

18. Id.

19. Id.

20. WiserMarket, 3D Printing Intellectual Property, WiserMarket.Com (Apr.3, 2024, 4:42 PM) https://wisermarket.com/3d-printing-intellectual-property/ .

21. Id.

22. Id.

23. ABOU NAJA Intellectual Property, Implications of 3D Printing in Intellectual Property, ABOUNAJA.COM (Apr.3, 2024, 5:04 PM) https://www.abounaja.com/blogs/3d-printing-and-intellectual-property .

24. Supra, note 20.

25. Supra, note 16.

26. Id.

27. Minesoft, 3D Printing and Patents: A Guide, MINESOFT.COM (Apr. 3, 2024, 06:23 PM) https://minesoft.com/3d-printing-and-patents-a-guide/#:~:text=While%203D%20printing%20itself%20is,construction%20of%20the%20printer%20itself.

28. Supra, note 1.

29. Id.

30. Supra, note 27.

31. Soumyajit Patra, Protecting Trademark in 3 D printing and additive manufacturing, AISHWARYA SANDEEP PATENTING and LAW (Apr. 03, 2024, 07:14 PM) https://aishwaryasandeep.in/protecting-trademark-in-3-d-printing-and-additive-manufacturing/#:~:text=T
he%20introduction%20of%203D%20printing%20has%20increased%20the%20potential%20of,and%20respond%20to%20such%20violations
.

32. Id.

33. Id.

34. Id.

35. Id.

36. Id.

37. Supra, note 1.

38. Supra, note 1.

39. Id.

40. Id.

41. Id.

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.

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