Additive manufacturing is a process in which material is added (rather than subtracted) to create a product. The most commonly recognizable form of additive manufacturing is 3D printing, which is a process by which a scanned digital file can be recreated, or printed, as a three-dimensional object. As the technology to achieve this becomes both cheaper and more widely available, it is postulated that 3D printing may change the design and manufacturing industry forever.
For instance, consider the following scenario. Suppose the sprocket on your bicycle breaks. Traditionally, you would repair your bike by purchasing a replacement sprocket at a retail store. However, if you had the ability to simply replicate the sprocket by printing a new one with a 3D printer and simple materials right in your own home, how likely would you be to make the trip to the store to pick up the part? From a consumer standpoint, 3D printing is a great idea and a convenient and inexpensive way to get the things you need quickly. And from a manufacturing point of view, additive manufacturing has many helpful and exciting applications as well.
But, consider this same scenario from another point of view. Suppose you are the person or company who originally designed and manufactured the sprocket. How would you feel about the ability of others to simply replicate your product without compensation to you?
The scenario as described illustrates in a very basic way how the growing technology of additive manufacturing has generated a number of intellectual property (IP) concerns. Additive manufacturing and the issues of IP protection are uneasy bedfellows. Concerns include questions about the ownership of designs, concerns about the possibility of copying parts by scanning and printing them, and concerns about the counterfeiting of component parts of protected designs.
Current legal regimes do not offer resolution to these issues in a definitive way. The legality of copying parts, even for individual use, is a murky area. And the possibilities additive manufacturing offers for counterfeiting parts and products presents additional conundrums for manufacturers and the legal system.
While patent laws protect design concepts in the traditional manufacturing model, additive manufacturing is not so clear-cut. The legal question becomes, "Who really owns the design of a part that is printed?". And regarding counterfeiting of parts, the technology of additive manufacturing makes reverse engineering an unnecessary step, thereby easing the way for counterfeiters to do their work quickly and more efficiently. Add to that the very real concern about the structural integrity of objects produced by additive manufacturing methods, and you can see that counterfeit parts produced in this way may result in catastrophic failure, and, depending on the use of the object, even potentially loss of life.
Also IP issues are further complicated by the possibility of using a basic design and slightly modifying it duringthe additive manufacturing process. Does this invalidate any design patent or trade dress protection afforded to the original product that is being replicated? The answer is not yet legally clear.
Utility patents may be a way of protecting many aspects of additive manufacturing, but this method also has severe shortcomings. Since the process of obtaining a utility patent can take on average almost two years, it is easy to see that advances in thetechnology of additive manufacturing will outstrip the patent process by a considerable amount of time, making it likely that utility patents as they are currently acquired will do little to protect IP rights.
What about copyright protections?
3D printing technology offers previously-unimagined opportunities for rapid prototyping and the creation of new designs. On the downside, those opportunities pose new threats to copyright owners, who now fear that 3d printing and intellectual property infringement will soon go hand-in-hand.
Under copyright law, the creator of a three-dimensional work of art has the exclusive right to make and sell copies of his work, to prepare derivative works based on his original work, and to transfer ownership of that work to another party. An infringer with a 3d printer can make multiple copies of a protected work and distribute those copies in direct contravention of these exclusive rights. (To a lesser extent, 3d printers might facilitate infringement of design patents and certain utility patents, but copyright protection is the main intellectual property right that is impacted by 3d printing technology).
A party claiming infringement of his or her copyright needs to show that the infringer had access to the copyrighted work of art and that this work was, in fact, copied. Access is oftentimes presumed if the original and copy are identical or if they closely resemble each other. The big question in 3d printer intellectual property infringement cases will be whether the copy is too similar to the original.
Courts will use a "level of abstraction" analysis to determine similarity between two products. Consider, for example, Michelangelo's David, the original of which is on display at the Accademia di Belle Arti in Florence, Italy. The copyright that Michelangelo had in his masterpiece has long since expired, but if that copyright were still in effect and owned by Michelangelo he would have the exclusive right to make and distribute copies of his statue. A rival sculptor might use a 3d printer to craft his own statue of David. A court that is charged with determining whether the rival's statue is an infringement of the original work would look first at the highest level of abstraction, namely, whether the two sculptures both depict the Biblical King David. Drilling down into the next level, the court would examine if the two statues each depicted a younger David preparing for his encounter with Goliath. Thereafter, the court would see if both statues showed a slouching David with his weight disproportionately placed on his right leg, and holding a rock to his shoulder with his left arm. Successively deeper levels of abstraction would look more closely at the respective details between the two statues. If the similarities were too excessive at a deep level of abstraction, the court would likely rule that the rival's 3d printed copy is an infringement of the original.
Copyright law provides certain safe harbors that will void infringement claims. A creator cannot use copyright law, for example, to protect utilitarian aspects of his works. In the United States, the Digital Millennium Copyright Act protects infringers that are not actively encouraging infringement. Nonetheless, 3d printers will present a new world of opportunities for infringers to make copies of protected works.
Copyright protection affords protection of a creator's original and creative expression. However, data structures have been determined to fall out of the scope of copyright protection. Hence, unless significant changes are made to copyright law, the process of additive manufacturing will not be affected by this type of protection.
Adding further complication is the fact that enforcement of IP rights varies from country to country. A multi-year international approach to securing patent rights may prove to be too slow to be of much use in matters concerning additive manufacturing. It is obvious that a combination of different protection mechanisms will be necessary to craft acceptable IP protections that are enforceable and effective. Ideally, these protections would be consistent from one country to another. However, this is not an ideal world.
In the US, it is imperative that current patent laws must evolve to encompass additive manufacturing technology issues. Ensuring the protection of data associated with three dimensional objects manufactured digitally should be a priority before the technology becomes widely available to the general public.