Current advancements in 3D printing make it possible to duplicate almost any object, with or without authorization from rights holders. This can have legal consequences in light of the intellectual property (IP) protection granted to original works.
While IP law provides a rights holder different options, such as suing a direct infringer and parties who knowingly abetted in direct infringement, this existing system can have many loopholes when applied to 3D printing technology.
According to the WIPO,
The 3D printing process starts either with a digital file in which the object to be printed is digitally formatted using either 3D print software, or a 3D scanner. 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 molten material is built up layer upon layer until the finished object emerges. This process is also referred to as additive manufacturing.
IP law protects the originality of a work and its creator’s right to prevent others from reproducing it. The author or inventor also has the exclusive use of the protected work, allowing them to maximize their economic benefits. Exclusivity of use and reproduction can be threatened when certain parties use 3D printing to reproduce those works that are currently protected by various IP laws.
Many experts believe that current IP laws can continue to protect their owners, authors, or inventors, even with the rise of 3D printing. For instance, Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works provides that copyright owners can object to any form of distortion, mutilation, or modification to their works. This same approach can apply to 3D printed works.
Aside from the above, most national laws may also be interpreted in such a way that IP owners are protected from intentional or unintentional infringement through 3D printing technologies. Thus, when IP owners learn of their works being copied through 3D printing, they can sue for infringement under the applicable IP regime.
Meanwhile, the most important aspects in the evolution of 3D printing technology are those of software, hardware, materials, or their combination. While hardware and materials are patentable, software may be more challenging to patent based on a more stringent standard for software protection stated in the landmark case of Alice Corp. v. CLS Bank, where the U.S. Supreme Court provided the standard for protecting software-related inventions.
Under the Alice standard, many software-implemented inventions cannot be patented if they are directed to an "abstract idea." The software can only be eligible for patent protection when it transcends mere computer code implementation. In the field of 3D printing, the Alice decision may have far-reaching implications. When software is at the heart of a 3D printing technology, it may need to improve existing processes or solve printing problems to be eligible for patent protection.
There are exceptions to IP law that apply to 3D printing, including the treatment of hobbyists. For instance, the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) restricts trademark protection for matters used in the course of business. Therefore, if a hobbyist prints a 3D object that is protected by copyright, it may not be considered an infringement, if used privately. Essentially, those who reproduce any protected material can be exempt from infringement when their actions conform with the fair use doctrine.
Fair use can be a defense in an IP infringement suit. Essentially, fair use applies when the reproduction of an original work is not made for commercial purposes but for private consumption as clarified in Sony Corp. v. Universal City Studios. In that case, Universal City Studios sued Sony Corp. for contributory infringement because consumers had used its home videotape recorders (VTRs) to record commercially sponsored television shows. The Court said that Sony’s VTRs have a legitimate purpose and home recording is not considered infringement.
Recently, fair use has also been applied to 3D manufacturing of a medical device to alleviate a hospital’s need for medical devices. At the height of the pandemic in Italy, a hospital ran short of special valves used for breathing machines that COVID-19 patients needed. Italy has registered one of the highest rates of COVID-19 infections. It wasn’t surprising that its hospitals were being overwhelmed and unable to provide the necessary facilities to all patients.
An Italian hospital used 3D technology and was able to create special valves through the help of local engineers without authorization from the patent holder. Although the original creator of the valve was said to have threatened to sue the startup firm that copied the valve through 3D printing, that creator subsequently denied doing so. This is the first case widely publicized about the possible patent infringement by 3D printing technology of a medical device. The main argument that may have been forwarded in this incident is that 3D printing was used for private reasons, and particularly, to save lives.
To curb unauthorized use of their original work or invention, rights holders must look to technical protection measures, for example, use of a specific identifying mark for an object and its associated 3D print file to monitor use. In creating a 3D CAD file, copyright and/or patent protection must be sought to protect technical drawings, diagrams, and models.
The overarching question here is whether current IP laws can cover such an all-encompassing technology and as such protect against possible IP infringement. The best way to address this is to seek protection using copyright and patent laws, where applicable.