Advances in technology often challenge the scope and reach of existing law, and in recent years, 3D printing has done just that with intellectual property (“IP”). Technology experts estimate that the 3D printing industry will grow to $26.7 billion by 2019, and by that time, the threat to the value of IP assets could reach $100 billion globally.
The DIY (“do it yourself”) nature of the 3D printing process combined with the increased ability to replicate designs present novel IP questions of copyright, trademark and patent enforcement and products liability. Manufacturers, suppliers, artists and engineers are only some of the many players who need to understand the intersection of law and 3D printing.
Copyright Violations. Competitors, consumers, counterfeiters and virtually anyone with access to a 3D printer (either at home or at a local print shop) is able to produce a tangible, usable product out of a digital design files (usually CAD files). CAD files are typically protected by copyright law and, for many business concerns, represent a highly valuable intellectual property asset.
Consider this scenario. An average consumer decides to download a CAD file for the replacement part he needs to repair his car and print it at home using his 3D printer, instead of purchasing the part from the commercial supplier. Unwittingly, the consumer downloaded a CAD file that was obtained and shared illegally. The potential exposure here is broad, but at minimum, the rights of that copyright owner of the CAD file have been violated. Assuming the copyright owner is made aware of the infringement, where is the recourse? Is the copyright enforceable against the consumer? What about the consumer’s source of the CAD file? How far can the trail be traced back, and who should be held responsible? How difficult, and expensive can that become? Now, extrapolate that example across the entire market of replacement parts and the ubiquitous future of 3D printers.
Currently, the DMCA (Digital Millennium Copyright Act), provides a mechanism by which copyright owners can protect their IP. Essentially, the DMCA provides that, as long as copyright owners employ certain protective measures to secure their digital IP, anyone who breaches those measures can be subject to both civil and criminal penalties. Copyright owners who are interested in distributing or licensing their work might consider utilizing dedicated sites and servers, such as Thingiverse or Shapeways, which typically operate in accordance with the DMCA. However, once a protected file is distributed beyond the bounds of these dedicated sites, the DMCA can do little to help affected owners.
Trademark and Patent Violations. Protecting a company’s brand against counterfeiters is hardly a new challenge. However, now the precision with which counterfeiters can pass a product off as authentic is unprecedented. Moreover, as 3D printers become household products, imagine your products, logos, brand names bring printed by end-users themselves. The legal issues of enforcement are not dissimilar from the copyright violations, but certainly do present some profound concerns for consumer goods companies with strong brand identities.
Patent protection stands to take a big hit by the uptick in 3D printing, due to the ease at which the public can access patented IP. This is compounded by difficulties in identifying consumers who privately infringe on a patent, and the statutorily high burden of proof involved when enforcing patent rights against file-sharing sites.
Products Liability Concerns. Take the scenario described above, only this time, the consumer who printed the replacement part to repair his car got into an automobile accident due to a faulty design element in the replacement part. Many states have various forms of strict liability, negligence, and breach of warranty laws in place to protect parties who are injured through the ordinary use of a product. 3D printed products, however, challenge some of the fundamentals upon which these laws are based. Strict liability laws, for example, generally hold manufacturers and suppliers responsible for subsequent harm caused by their products. Given that 3D printers allow consumers to bypass traditional steps in the manufacturing and purchase processes, it doesn’t seem appropriate to impose such liability on either of those parties.
Protect Company Assets While the Law Catches Up. Companies will face, at least for the immediate future, an uphill battle with the legal landscape of 3D printing. The prudent course is to develop a robust and proactive IP monitoring and enforcement policy. Also, you should remain current with 3D printing technology – understanding how it works, how it can be transferred, and who may be interested in using it. The more you understand how the technology works, the better you can come up with ways to protect your products and designs.