3D printing – creating intellectual property breaches
However, this now affordable technology could lead to intellectual property (IP) rights being unknowingly breached, and rights holders having to seek out infringers to take action against them.
Daniel Kelly, a solicitor in our intellectual property team, tells you everything you need to know about 3D printing and IP:
What is 3D printing?
The initial stage of 3D printing is creating a computer-aided design (CAD) file. This is exported to the 3D printer using specialist software, which transforms the digital version into a physical object. The ease in which these CAD files can be shared over the internet means reproduction is simple and can be done on a large scale.
What legal issues can arise?
Sharing CAD files far and wide makes it almost impossible to manage who is using them. Printing for private and non-commercial use is not considered infringement of some IP rights, including patents, designs and trade marks, but it does mean one less sale for the rightful owner. However, as the product created is often for use by the manufacturer, finding and proving infringement cases is difficult.
What IP rights concern 3D printing?
• Design – These rights protect the appearance of the product and can be registered or unregistered.
• Copyright – This can protect multiple aspects of the 3D printing process. For example, the code of the CAD file, the design contained within the file, and the physical object that’s printed.
• Trade mark – This may cover any unique features of the product, such as a word, phrase or symbol on the item, or even the shape.
• Patents – These provide protection for new inventions.
How to defend intellectual property rights
The most straightforward way to defend against IP infringements is by monitoring where the files are distributed. CAD files can be shared almost too easily, so staying in control of who receives them is vital. Using passwords and unique identifiers on files can also prevent misuse and help with identification of copies.
Unfortunately, even if these preventative measures are taken, infringers could still find a way and action must be taken.
What to do if infringement occurs
The first port of call is often a “cease and desist” letter. This is sent to the infringer requesting them to halt production and sale of the product.
What to do if infringement continues even after action is taken
Sometimes sellers refuse to stop the distribution of products even if action has been taken. If this occurs, there are two main options:
• Seeking damages – If an IP rights holder can prove that another party’s sale of a product, without the IP owner’s permission, has caused them to suffer financial loss, the courts could award damages. Registering products and/or IP is wise in order to make this enforcement easier.
• Interim injunction – IP rights holders can apply for this from the court. It prohibits the infringing party from continuing distribution before the court trial. To obtain the injunction, it must be proven that there is a serious issue to be tried and that it could not be remedied purely through damages. A blocking injunction can also be obtained against an internet service provider, requiring them to block access to the website providing the infringing content.
For those who wish to use 3D printing to create products, it is vital that they ensure what they are doing is both legal and safe. Used (and monitored) correctly, the technology is an opportunity for IP owners, not a threat. By protecting IP rights and keeping an eye on the market, rights holders can embrace the positive opportunities 3D printing provides.