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3D Printing has evolved from a merely hobbyist and scientific use to industrial manufacturing over the last 30 years. This novel manufacturing method allows innovation-intensive companies to reduce their overheads when developing, designing or testing new products or improving existing ones. Without having to pay for prototypes, manufacturers can rapidly and cheaply undertake multiple iterations of complex elements in-house using 3D printers. The printing process starts with a digital file in which the object to be printed is digitally formatted using either 3D print software, or a 3D scanner. The digital file consists of a design model/blueprint, which can also be written as a code on a Computer Aided Design (“CAD”) file. Alternatively, a CAD may be created with a 3D scanner, which can scan any object and create a three-dimensional blueprint The file is then exported to a 3D printer using dedicated software, which transforms the digital model into a physical object through a process in which raw material is built up layer upon layer until the finished object emerges. This process is also referred to as additive manufacturing.
Protecting Intellectual Property Rights in the International Legal System
The novel and multi-dimensional manufacturing technique of 3D printing affects almost all areas of the Intellectual Property (“IP”) law. The CAD file, the scanned original design or a state-of-the-art invention can immediately raise IP law issues for discussion. Copyright law, software law, design law and patent law are some of the most debated areas, when it comes to 3D printing. The main question to be asked is, whether IP laws in their current form can embrace such an all-encompassing technology, protect against possible IP infringement or require an all new sui generis right. Still the standard exceptions and limitations that exist in the international (agreements and conventions) and transnational (Directives, Regulations, the Continental European legal systems) IP laws also naturally apply to 3D printing. For example, with respect to patent law, Article 30 of the Agreement on Trade-Related Aspects of Intellectual Property (“TRIPS”) states that member countries “may provide limited exceptions to the exclusive rights conferred by a patent”. Therefore, some national laws of the member states consider that the rights of the patent holder do not include acts performed in private for non-commercial purpose and does not constitute an infringement of IP rights. In the area of copyright, the rights granted to authors can be limited according to the so-called three-step test. Article 13 of the TRIPS Agreement states that “members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.” Accordingly, some member countries have established a right to private copying authorizing a person to reproduce a work for private use. In this article we will be focusing on the Continental European IP system and its approach to the 3D printing.
The Continental European IP System and 3D Printing
Continental European IP system (also known as Civil Law) relies on legislation rather than judicial precedents. In the IP law, this legal policy prevents ambiguities for which rules to apply in different circumstances. However, strict application of the legislation may misread the necessities of the relevant issue (in this case IP infringement via manufacturing) that may not have caused an infringement if interpreted flexibly. The current IP rights that 3D printing may have an impact on, are copyright, patent and, most importantly, design rights.
Under the copyright law, a 3D CAD file (but not a 3D scan from an existing object) can fall under copyright regime, as it covers technical drawings, diagrams and models. Additionally, 3D CAD can be considered as derivative works from an original work. However, specific materials and shapes with pure technical function are excluded. Software protection, which also falls under the copyright regime is also possible. Still 3D CAD is not executed by a computer as a software but read to manufacture the product. Nevertheless, any other proprietary software used within the 3D printer will be protected, apart from its functionality. Secondly, patent rights may arise, if a patented invention is replicated. The innovation and technology contained in the object would therefore be protected. A CAD file containing a blueprint for the patented technology (if cited I the claim) will be under patent regime. Esthetic lay-out of the object, however, will be excluded. Finally design rights protect the external shape and features of the whole or part of the product in question. The appearance and distinctive esthetic lay-out of the manufactured object will be protected under design rights. Therefore, one can assume that any CAD file containing the design blueprint will automatically be infringing material. However, the raw materials, internal parts non-visible during public use or designs that are commonplace in the relevant technical fields are exempted from design protection. Moreover, design features configured for mechanical connection to another product (ex: spare parts) and features that are only for technical function are not protected under design regime as well.
Intellectual Property Rights (“IPR”) Infringement from 3D Printing
IPR infringement of the abovementioned rights may occur during the creation and dissemination process in 3D printing. Again, legal action is restricted to certain actions by infringing third-party under copyright, patent and design rights.
During the creation of the works, if the CAD file (the 3D model), scanned object, software or graphic user interface is digitally acquired or copied without permission of the rightsholder; the action will be considered copyright infringement. A defense of private use, without valid exceptions are not considered exceptions under the Civil Law IP regimes and only private copying, repair or reverse engineering will fall under copyright infringement exceptions. As stated above, the expression of software is also protected under copyright regime and any attempt to copy, translate, adapt, alter or distribute the software will result copyright infringement. Functional elements of the software cannot be protected, and reverse engineering cannot be prevented by a legal action, unless technical protection measures are present. As for patents, use or producing of the invention, without a patent license by the patent holder, would constitute patent infringement. The restriction includes reverse engineering of the patented invention, as patent law does not provide exceptions to independent creations. Therefore, the CAD file with the copy (blueprint) of a patented invention may be seized or requested to be deleted. However, a novel CAD file that does not copy the claims of the state of the art or copies unpatented parts of the technology will not be protected under the patent regime. Finally, digitization of an object for commercial use, that has a registered design protection would result design right infringement. Unless private and non-commercial use is proved by the infringing party, the rights holder may claim compensation or issue a preliminary injunction against further illegal use.
As for the dissemination process, the same concerns over copyright, patent and design rights continue, whether it be CAD file or the 3D printed object itself. The original copyright protected work cannot be shared or reproduced, without a proper copyright license by the author/creator, by third parties. Additionally, private use of the 3D printed object may also be restricted by the rightsholder, if the CAD file was unlawfully acquired beforehand. Under the patent regime, uploading the CAD file that contains patented invention to public access or selling/trading the 3D printed object would result patent infringement. Unlike copyright, the private use of the 3D printed technology or creating a non-infringing CAD file (which in itself is non-patentable subject matter) would be exempted from any legal action. Finally design rights infringement may take place during dissemination process, if the product incorporating the protected design is put on the market, offered for sale or imported/exported without authorization form the rightsholder. The CAD file itself does not fall under design rights and therefore not applicable for design protection. For 3D products that incorporate a protected design, only private and non-commercial use is accepted to be manufactured by third parties.
Legal Measures against IPR Infringement
To curb unauthorized use of the original work or invention by third party, rights holders can make use of technical protection measures, the circumvention of which is expressly forbidden under international IP regime. These measures make it possible, for example, to mark an object and its associated 3D print file with a unique identifier to monitor use.
Under copyright regime, in case of private use of the original works, the right holder must be able to identify the end-user first. An important question to clarify by courts if and to what extent a CAD file is capable of copyright protection, as it may not per se be eligible. A 3D CAD file could file hereunder because of its technical drawings, diagrams and models. On the other hand, courts need to be aware that no copyright is granted to technological solutions and progress. A 3D CAD file could also enjoy copyright protection as a computer program. On the other hand, unlike traditional software, a CAD file does not control the hardware of the 3D printer. It just represents, embodies the 3D object. The use of the CAD file to print the physical object in 3D, even if the CAD file can be argued to be copyright protected, should not be considered counterfeit because the physical object itself does not carry the copyright that was vested in the CAD file. Patent protection will only be granted if it has been applied for and the conditions are met (such as a computer-implemented invention). Often this protection is not or no longer available.
Design rights could potentially be the most useful intellectual property right for larger manufacturers to challenge commercial 3D printing of everyday objects. The manufacturing of a product incorporating the protected design will be illegal if done by third party for commercial purposes, even without intention and knowledge of the infringing behavior. This right may therefore especially be useful in the pioneer years where high-quality 3D printers are not yet affordable to the large public and where third parties make 3D prints upon the order of end-users. There will however be no design right infringement if the end-user makes the 3D print for personal and non-commercial use. The infringement of design rights through 3D printing moreover raises the issue of fair compensation. Therefore, it may be argued that 3D printers are new modes of copy of designs, which allow for unlimited unlawful copies to be made, and which make, as such, the introduction of a fair compensation mechanism into design law increasingly relevant.
Online 3D printing platforms are still a relatively small phenomenon and the intellectual property issues are limited but they will probably grow. At this stage, it may be prudent not to penalize new technology by acting at the legislative level. Thus, 3D printing should be assessed and examined across the IP spectrum, taking into account the different product sectors affected by 3D printing.
Sinan Erkan
