3D printing technology has advanced to the level where consumers are able to purchase these printers for their personal use. Just recently, 3D printing was accessible only in limited circumstances. Now, it is possible for consumers to purchase versions of 3D printers which can be used at home to print various articles and objects. In fact, the technology has advanced such that even certain foods can be printed. It is anticipated that many items will be able to be printed directly from 3D printers in the future and the capabilities are endless. However, as the hype continues for this relatively new technology, some intellectual property legal concerns are raised by virtue of its capabilities and potential use that could be made of it. These span across the various IP areas as will be discussed below.
Items which are printed can easily embed the famous trademark of another without permission. The ability to do so is facilitated by the fact that technology has made it so easy to copy such marks. As 3D printing gets cheaper, unlawful use of the technology may be made on a larger scale. Even though in a primitive stage, one may print clothing bearing the trademark of a famous company. 3D printed packaging, boxes or related material may contain a trademark. Various kinds of printed accessories may also include the same. However, many jurisdictions, such as Canada and the U.S. require some form of ‘use’ of a trademark.[1] Therefore not all use may violate trademark laws such as the Canadian Trade-marks Act or the U.S. Lanham Act. Canadian law requires ‘use in association with goods or services’ as U.S. law requires ‘use in commerce’. However, liability under counterfeiting laws may nevertheless attach.
Copyright concerns are also raised by this technology as material which is printed using a 3D printer may violate copyrighted works of art or other copyright material by replicating the same in a manner prohibited by law. Copyright may easily be violated by using this technology to print material at the expense of the copyright holder. Whereas traditional printers are capable of printing copyright works such as those including words, pictures and books, 3D printers can pose many additional possibilities such as artistic work in the form of small statues, moveable objects or other more technically advanced forms of creation over and above that which can be created using ink on paper.
Patent law is another area of intellectual property that may be affected by the 3D printing technology. One example of this is by using ‘CAD files’ or other technology to print patented objects. It is expected that, as the 3D printing technology evolves, it will become possible or even easier to print objects which are covered under a particular patent, without permission. For example, one may prepare the necessary ‘blueprint’ to print a patented object despite the rights of the patent holder.
This year, the USPTO has held conferences and webcasts relating to IP legal issues surrounding 3D printing. Some novel issues raised include the extent of ‘human’ liability where ‘machines’ are in use and doing some of the work. Issues of ‘induced and contributory infringement’ have been raised as have concerns relating to ‘if a new CAD file is created through reverse engineering’. Many questions remain unanswered from the legislative and case law points of view.
However, it is yet to be seen how defences such as ‘fair use’ will play a role in the context of 3D printing. This will require Courts or arbiters of intellectual property disputes to consider how these defences will work in such scenarios, including consideration of any intellectual property utilized and, where relevant, the use which is made of the 3D items printed.
It is clear from advances and expected advances in this area that many intellectual property legal concerns are raised by 3D printing. As far as the future of 3D printing is concerned, it is a matter of time before what violation once occurred mainly in factories would be done right at home on a larger scale. At the same time, it would be interesting to see how current law evolves to adapt to this new technology including how existing defences would play a role in its development.
Rajeev Sachdev is a Professor, Researcher, California Lawyer, and English Solicitor. He also holds several degrees including a Masters in Law and an MBA.
[1] See U.S. Lanham Act 1946 15 U.S.C. §1051 et seq (as amended), and the Canadian Trade-marks Act, R.S.C., 1985, c. T-13.
[2] See U.S. Lanham Act 1946 15 U.S.C. §1051 et seq (as amended), and the Canadian Trade-marks Act, R.S.C., 1985, c. T-13.