The Perils Of 3D Printing For Intellectual Property
As it continues to evolve, the double-edged sword of technology brings challenges and benefits in equal measure. While it makes life easier for some, it introduces new trials for others. One such technological conundrum is 3D or three-dimensional printing. This marvelous invention helps build 3D objects by using an additive process that creates layers one over the other until the final product is ready. It is best suited for complex designs as it is able to break the product into thinly sliced cross-sections that layer together to create a whole. A vast array of materials like metals, ceramics, resins, and thermoplastics can be used in 3D printers. This ease of product creation within minutes definitely promises to increase efficiency but poses a threat to the protection of Intellectual Property. Let’s find out how.
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The Source of 3D Printing
To build an object using a 3D printer, a 3D model is required, this may be built physically or downloaded from a 3D library. This means that anybody with a 3D diagram of a product can easily replicate it. And it is this ease of operation that is detrimental to intellectual property rights, including copyright, patents, and design rights. While 3D printing is relatively new and it will be some time before it is applied for mass production, the danger is imminent. It is entirely possible for industries to replicate a patented product and use it in-house without authorization. This is a worrisome aspect for patent holders and negates their exclusive rights over the product.
The Effect on the Patent System
Just as the internet and regular printers made copyright violations rampant because anyone could download and print books, music, movies, etc., the 3D printer makes it easy to print a patented product. Due to the decentralized manner in which the 3D printing process works, it becomes difficult to prove direct or indirect infringement.
A direct infringement, in the United States, is said to occur if a person makes, uses, sells, offers to sell, or imports the patented invention without authorization. Now if a person makes a CAD file of an invention and uploads it on the web, anyone can download it and create the product using a 3D printer. So, per the definition of direct infringement who would be blamed for the act in this case? If it is the person who downloaded the file and printed the product, then the task would be to locate them and then legally prove their culpability. However, given the mass proliferation of 3D printers, it is expensive and time-consuming to perform this exercise. On the other hand, if the person uploading the file is held responsible, then too, it becomes difficult to prove direct infringement. This is because technically the said person has not made, used, or sold the physical product. Hence, it is nearly impossible to find the culprit and garner legal proof of direct infringement in such cases.
Indirect infringement involves an act by one party that in some way enables or encourages the infringement of IP by another party. This may appear like a more feasible approach when dealing with 3D printing of patented products, but proving an indirect infringement is not simple either. There are two types of indirect infringement-induced and contributory.
An induced infringement occurs if a party is aware of a product’s patented status and knowingly causes another party to directly infringe the patent. In the 3D printing case, the patent holder would have to prove that the person who uploaded the file was aware of the consequences.
This becomes difficult if:
- The person only possesses the file and has not used it
- The person resides in a country outside not covered by the patent
- The person claims they were not aware that the product was patented
Contributory infringement is a type of infringement by which a person may be held guilty of infringement even if they did not directly engage in the activity. It involves providing a component that may not infringe a patent on its own but has a use as a part/composition of a patented invention. Such actions contribute to a third party infringing the patent. But even in this case the CAD file uploader cannot be held responsible as the digital representation is not the equivalent of a ‘component’. While there is an argument that it should be considered thus, there is no legal precedent supporting it.
The Need For IP Reform
There are some precautionary measures businesses can take to protect their IP assets, like creating a licensing model or implementing other security measures that help in averting or detecting the infringement. An example would be the use of special identifying marks for an invention and its associated 3D file to keep a tab on usage.
But these measures do not hold much weight unless backed by legal reform. The current IP laws need to be tweaked to address the disruptions caused by 3D printing technology. Stronger measures need to be put in place to address the problems that are bound to only increase in the future. IP laws must take immediate cognizance of the situation in order to keep up with the challenges technology will bring as it continues to evolve and develop.
3D printing makes it possible to print anything, anywhere without the need for proper authorization. The loopholes in the present system fail to protect the IP owner from infringers. Since the technology has life-enhancing and revolutionary applications it is likely to be widely embraced and embedded in our daily lives. The widespread use of 3D printing is likely to raise legal questions that seek resolution.
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