Intellectual property and 3D printing: A clash in the rising

By Manisha Singh and Zoya Nafis, LexOrbis
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While 3D printing is increasingly being used as an attractive alternative manufacturing option in different industries across the globe, the application of 3D printing technology has yet to gather momentum in India. This owes mostly to the high operational costs involved and lack of clarity on the right sectors where the technology may be viably utilized.

Manisha Singh LexOrbis律师事务所 合伙人 Partner LexOrbis
Manisha Singh
LexOrbis律师事务所
合伙人
Partner
LexOrbis

3D printing technology often is touted as “greener and leaner”. It has huge potential to stimulate India’s manufacturing sector and governmental initiatives such as Make in India, and is sure to permeate India’s manufacturing sector.

The technology presents a host of legal enforcement and protection challenges pertaining to unauthorized reproduction of products that may be protected by intellectual property rights, thus the issue will definitely gain importance in India in the years to come.

What is 3D printing?

3D printing, also known as additive manufacturing, is the process whereby solid, three-dimensional objects are produced from an electronic file. A 3D printed object is created via additive process. In this process, an object is created by laying down successive layers of material until the entire object is created. Each of these layers can be seen as a thinly sliced horizontal cross-section of the eventual object.

It all initiates with creating a virtual design of the object one wants to create. This virtual design is made in a CAD (computer-aided design) file generated using either a 3D modelling program, which is used to design a totally new object, or a 3D scanner, which creates a digital imprint of an existing object to replicate its design.

 Zoya Nafis LexOrbis律师事务所 律师 Associate LexOrbis 中国

Zoya Nafis
LexOrbis律师事务所
律师
Associate
LexOrbis

3D scanners use different technologies to generate 3D models such as time-of-flight, structured or modulated light and volumetric scanning. A 3D printed object can be created once the CAD file is inputted into the machine.

IP and 3D printing

3D printing technology has until now been limited to industrial markets in India. Affordable, user-friendly 3D printing equipment is increasingly becoming accessible to the individual consumer, and this may facilitate rampant IP violation.

To give an illustrative example, a CAD file which infringes a holder’s IP rights (IPR) in some manner may be created and uploaded to the internet. This file can then be immediately downloaded by consumers across the globe, who can then print the object using a personal 3D printer with or without additional customization of the design. IP theft and violation thus is a major issue when it comes to 3D printing, insofar as it would be difficult to locate individual violators. This needs to be resolved before 3D printing technology can be efficiently exploited to the satisfaction of all stakeholders.

3D printing is expected to impact almost all categories of IP including patents, design, copyright and trademark due to its nature. However, the industries which base their output on manufacturing and design are the biggest IP holders expected to suffer as a result of popular 3D printing availability.

There are many challenges to IPR enforcement in these cases. One of the biggest challenges to be faced by enforcement agencies is identifying the infringer. Most of the infringing activity will be electronic, and this activity will be performed within the four walls of the violator’s residence. Considering this, traditional enforcement authorities such as Customs may be unable to do much in terms of enforcement.

Further, concomitant liability of different actors once IP rights infringement via 3D printers occurs also needs to be determined properly. For instance, there is the question of whether the maker of the 3D printer or the creator of the CAD file would be held liable when an infringing 3D printed product was made by a different actor. Once this scheme is clear, enforcement agencies will more easily be able to prevent violations.

Techniques in common

While the legal framework and enforcement mechanisms to deal with 3D printing infringement cases may vary from other instances of IP violation, the litigation and alternate dispute resolution (ADR) techniques would mostly remain the same.

Like any other case of IP violation or infringement, the initial course of action would be to inform the violators of the underlying IPR and demand that they stop. If there is no response or the violation does not cease, it becomes essential to resort to litigation or ADR.

What needs to be done?

Markets or industries need to be vigilant online, searching for CAD files that infringe their IPR and asking that these infringing files be removed. New IP registrants can also look at ways to extend their exclusive rights protection to include the creation of CAD files of their design, though this may depend on the legal framework.

An adequate legislative response which takes into account the implications of 3D printing on IP rights is the best way to assist IP rights holders and authorities. As of now, there has been no legislative, regulatory or administrative attempt to address the issue in India.

Since 3D printing is an emerging technology, the legal framework needs to be shaped in a way that addresses the issues involved in the most appropriate way. The framework first needs to demarcate the nature and extent of IP protection CAD files would be eligible for and whether this protection also extends to the final printed product.

Next is the issue of those IPR which are likely to be infringed through use of 3D printing technology. Considering that most of the infringement could be personal rather than commercial, private use exceptions in current IP laws need to be evaluated.

3D printing technology is essentially an additive manufacturing mechanism, therefore patent and design holders may be the hardest hit victims. In this context, certain provisions incorporated into copyright legislation to deal with digital reproduction could also be extended to these areas.

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