The machines are here – 3D Printing: A genuine challenge to Intellectual Property laws and rights holders?
25 May 2021
Although 3D printing technology has been in existence for several decades, its recent proliferation makes it clear that never before as much as now, has this technology presented as acute a challenge to Intellectual Property (IP) laws and rights holders and to traditional manufacturing practices.
The prolific rate at which 3D printers are being produced is realistically projected to result in a 3D printer becoming a common household device in the next few years. This could ultimately decentralise manufacturing, by enabling virtually anyone to become a manufacturer in the comfort of their home.
Naturally, such a result would significantly disrupt the general order of business and do so in a far-reaching manner that would affect the economy at large, e.g. with reference to the availability of employment and the collection of taxes.
3D Printing requirements
Generally, to create a product using a 3D printer, one requires:
- a digital file of the product to be 3D printed,
- instructions that would instruct the 3D printer to additively print the product, and
- a material that will be used to print the product in 3D.
A 3D printer also needs to be calibrated correctly to ensure that the printed product has the desired mechanical and physical properties.
3D printing challenges, met
While the second and third requirements identified above may be easily met, the first requirement may be viewed as a barrier to entry. Manufacturers could argue that they can still safeguard digital files containing technical drawings to be used to 3D print their products, whether as confidential information or by relying on copyright.
Such a view is blurred, however, and does not take cognisance of numerous enabling technologies that can be exploited by non-IP rights holders in creating, with minimal effort, a digital file of a product in which IP rights subsist.
One example of such a technology is a 3D scanner, which can scan a product and produce a digital file thereof in a matter of minutes.
It goes without saying that the use of such enabling technologies can not only aid non-IP rights holders to create digital files of IP protected articles for their own use, but could in fact support the establishment of an entirely new market for trading in such digital files.
While one would wish immediately to classify such a market as illegitimate with reference to the counterfeit goods market, a more thorough view would reveal that the matter is not that straightforward and that relying on conventional forms of IP and conventional IP protection strategies may well fall short in providing adequate basis for taking action against such non-IP rights holders.
Re-defined IP strategies
When looking at the broadest form of IP protection available for technological inventions, it is noteworthy that, traditionally, patents for device-related inventions would be drafted with the traditional manufacturing and assembly methods in mind.
However, with 3D printing being on the rise, it would be necessary and in fact essential to consider modifying this approach to cover the new ways of manufacturing products and/or assembling components which may have been manufactured.
Fortunately, there are several patent claims drafting strategies that are taking shape in the world’s most prominent patent offices, that may provide useful assistance to IP rights holders.
In addition, there are other IP rights, such as designs, copyright and trademarks, that should be considered for the purposes of preventing the dissemination of digital files of a product online and/or the illegal manufacturing of IP protected products using 3D printers.
The South African Electronic Communications and Transactions Act could also, in some instances, be used to hold an internet service provider liable for copyright and/or patent infringement for allowing illegally obtained digital files of a product in which IP rights subsist, to be shared and sold on their platforms.
Reinvention of the wheel
As much as 3D printing appears to be the new disruptive technology on the block, there is really no need to reinvent the wheel, as existing IP laws are well-equipped to address the changes and challenges that 3D printing technology brings, provided that their implementation moves with the times.
Contact Thapelo Montong to find out more about IP strategy and laws as they apply to 3D printing.
See also:(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)