Apr 22, 2015

3D Printing and IP Rights

Use of 3D printing technology is not yet commonplace.  However, we are starting to reach a point where private individuals and businesses are seriously thinking about what 3D printing can offer them and whether they should invest in a 3D printer. Recently there has been a trend for filed a patent applications being filed relating to 3D printing (for example, Boeing has recently filed an application for replacement aircraft parts) but what other rights and issues can those using this technology expect to encounter?

3D printing presents an opportunity for rights owners. It may assist the production process and will enable products to be customised to meet individual demand. However, it will almost certainly be easier for counterfeiters to create replica copies and there is a risk that personal printing at home could reduce demand for designer goods and could devalue brands.

IP Rights Affected

Designs, patents, trade marks and copyright are all potentially affected by 3D printing. These are each considered in more detail below.

Designs

Rights in designs exist in registered and unregistered forms in the UK and the EU.  Design rights protect the shape and configuration of products and typically are not "artistic" enough to be protected by copyright (as to which see below).

Registration of a design is relatively quick and easy but is often overlooked.  Designers should always seriously consider applying to register their designs.

The Registered Designs Act 1949 protects designs against copying by third parties. More specifically, it states that registration of a product protects the "appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of the product or its ornamentation". A product for these purposes is any industrial or handicraft item.

Designs may also be protected by unregistered design right, although the protection granted is less than that for registered designs. This right arises automatically. Unregistered design right subsists in the shape and configuration of an item but not its method or principle of construction nor its surface decoration. The design must also be original.

Both forms of design rights have exceptions to allow for the manufacture of spare parts and accessories where these "must fit" or allow a "technical function" to be performed.

Copyright

Copyright laws are largely found in the Copyright Designs and Patents Act 1988 and copyright generally exists in "works of artistic craftsmanship" including original literary, dramatic, musical or artistic works, sound recordings, films and the typographical arrangement of published editions. The work does not have to be original; commonplace works may be protected.

Case law indicates that to benefit from copyright as a work of artistic craftsmanship or as a sculpture, the work must have been created principally for its artistic merit. This is a narrowing of the scope of protection and many every-day articles will not be covered. However, graphic designs on the surface of such an item may be protected by copyright - all of which are relevant to 3D printing.

Copyright also protects some 3D works, such as sculptures. A loophole in the law exploited by certain markets - mobile phone covers being a good example - has now been closed and images used in this way are now fully protected by copyright.

Copyright will also protect the underlying software used to create the computer-aided design.

Patents

A patent will protect the workings of an invention. The use of a 3D printer to make a copy of a patented item will on the face of it constitute patent infringement. However, there are exceptions where the copying is done for private, non-commercial purposes and also for experimentation.

Trade Marks

Trade marks are used to protect a recognisable manufacturer's brand.  It is often referred to as a 'badge of origin'. Words and/or symbols and distinctive shapes, even colour in very specific circumstances, can be protected as trade marks.  Where any trade mark is copied by 3D printing, notably any logos incorporated in or affixed to the product, this can provide protection to rights holders.

Infringement and Enforcement

Risk areas for infringement are various.  The ease with which design CAD files are made available via the internet for file sharing (an issue that has most notably troubled the music and film industry) means that the owner's intellectual property rights can easily be abused. 3D printer operators or bureaux's may find they are exposed to joint liability and claims of secondary infringement if they print products in breach of a valid intellectual property right.

At the consumer end, where the inherent low value of claims may be a deterrent to rights holders doing anything about it, the small claims track in the IPEC is designed to avoid high legal costs and the value at which claims can be brought.

Looking Ahead

It is still early days and there is no guarantee that 3D printing will take off massively.  Currently the technology, at the very least at the consumer level, is relatively unsophisticated. However, the emergence of 3D printing is an issue that rights holders need to keep an eye on and is something that rights holders must continue to bear in mind when considering how best to protect their intellectual property rights.

If you require advice or assistance with any of the matters discussed in this article please do not hesitate to contact us on 0191 281 4000 or legal@mcdanielslaw.com

in: Companies, Copyright, Designs, Digital/Tech, News, Patents, Trade Marks

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