3D PRINTING: EFFECTS OF DIGITAL PRINTING ON PATENT LAWS

Synopsis

SUBMITTED BY: SUBMITTED TO:

 IRSHEETA KESHARWANI MS. BHAVNA JHA

ROLL NO. 383 FACULTY OF I.P.R

 VISHAKHA RAJGARHIA
ROLL NO. 417

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 INTRODUCTION

“3D Modelers, 3D scanners, immersive Virtual Environment and Rapid Prototyping are used
to assist both students and teachers to explore and study architectural creativity in a new way
that enables a deeper involvement into design-issues.”

- Mark, Martens and Oxman, 2001.

Three-dimensional (3D) printing – or “additive manufacturing” – technologies differ from

traditional molding and casting manufacturing processes in that they build 3D objects by
successively creating layers of material on top of each other. Rooted in manufacturing
research of the 1980s, 3D printing has evolved into a broad set of technologies that could
fundamentally alter production processes in a wide set of technology areas. This report
investigates, from the perspective of an intellectual property scholar, how 3D printing
technology has developed over the last few decades, how intellectual property rights have
shaped this breakthrough innovation and how 3D printing technologies could challenge the
intellectual property rights system in the future. As in other areas of innovation policy, the
role of the intellectual property system in fostering innovation in 3D printing technologies is
a complex one. It played a beneficial role in some instances, and it may have played a neutral
or detrimental role in other instances. Studying the progress of 3D printing technologies
thereby also informs us about the intricate relationship between intellectual property and
innovation.

Three-dimensional (3D) printing technologies have attracted considerably media attention

over the last few years. Some of the attention may be the result of a media hype. However,
there are aspects of 3D printing or, more accurately, “additive manufacturing” technologies
which could have a transformative impact not only across a large number of different
industries, but also on how products in general are produced, distributed and consumed. It is
important to understand how this technology came into place, how it developed over time
and what kind of innovation ecosystem it produced. It is even more important for innovation
policy research to analyze how this development interacted with legal and societal
institutions whose goal is to foster innovation. Ideally, such insights can inform the policy
discourse on how to design innovation policies for 3D printing and other potential
breakthrough innovations.

This research paper investigates, from the perspective of an intellectual property scholar,
how 3D printing technologies have developed over the last few decades, how intellectual
property rights have shaped this breakthrough innovation and how 3D printing technologies
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could challenge the intellectual property rights system in the future. The research paper is
based on an analysis of technological developments, the existing marketplace for 3D
printing and the relevant innovation policy literature on this technology.

SIGNIFICANCE OF THE STUDY

Around the world, 3D printing is a rapidly emerging and developing industry that impacts
numerous sectors of the society. As it continuous to develop itself as an important industry, it
is an evident fact that 3D Printing industry has big potential in bringing new opportunities
and items that were never sought out and used before. However, while 3D printing brings
opportunities, it also can pose a threat in various aspects of our society, especially around
intellectual property. It constitutes as a patent infringement when it violates the rights of the
owner for the protected invention. In the Intellectual Property Code of the Philippines, patent
infringement is a civil liability if done once, and criminal if it is repeated. These are governed
by the provisions of RA 8393 or the Intellectual Property Code of the Philippines specifically
Section 76 and Section 84.

However, the concept of the 3D Printing is a very new and fresh concept and hence not much
literature available, let alone a special provision to define the 3D printing or define its
punishment. The people around the world are yet to get aware of it. Hence, it will be helpful
to make the people aware of the concept of it, how the infringement is committed and what
are the losses that they are going to suffer by infringement. Also it is very fresh, there is no
strict laws or guidelines related to 3D printing at international level or in any country
individually. Hence, with passing time, strict rules should be framed for any violation.

OBJECTIVE OF THE STUDY

The purpose of this research paper is to provide the society with an analytical view of the
legal intellectual property issues surrounding 3D printing. 3D printing technology is likely to
disrupt the production and distribution of a number of goods in certain industries, while at the
same time creating unseen potential for innovation and consumer involvement. Whether
disruptive or not, the intellectual property rights, if applicable, concerning the production and
use of existing and new products will very likely be affected.

1. The approach taken by law makers

2. The approach taken by courts
3. The approach taken by industry

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1. APPROACH TAKEN BY THE LAW

ITEM QUESTION

Intellectual 1. Which legal frameworks currently govern the intellectual

property rights issues in the field of 3D printing?
2. What is the potential impact of 3D printing on intellectual
property rights in general and design protection in particular?

Enforcement 1. Against which parties’ enforcement can best be achieved?

2. Enforcement against end-users?
3. Enforcement against intermediaries?

Along these lines, the researcher will examine whether we can learn any lessons from current
law/practice in relation to the role of intermediaries in protecting IP infringement. It is true
that the challenges presented by 3D printing and intermediaries are to a great extent similar to
those challenges previously arisen in the context of the digitization of books or music and the
sharing of digital files between end-users. With regard to distribution of files and software via
Internet, the same blocking and content removal obligations as for audio-visual content will
be applicable. In practice, it will be most efficient for right holders to send a notice and take
down request to online platforms to prevent them from relying on the safe harbor provisions
contained in the e-commerce legal framework. According to literature on 3D printing, the
first takedown notice for a 3D printed object would have been served back in 2011 and
several such requests followed in the years thereafter.

2. APPROACH TAKEN BY COURTS

ITEM QUESTION

Specific case law

Is there specific 3D printing related case
law?

Existing case law applied by analogy

Can we apply existing case law from other
fields by analogy?

We are not aware of existing claims for infringement of IP rights via 3D printing before
courts in the EU, but it is likely that such claims will arise as 3D printing becomes more

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 popular On the other hand, one can state that in the past years courts clarified many of the
legal issues relating to the control of illicit copies of items protected by intellectual property
rights in the context of audio-visual piracy, thus making right holders better prepared to face
the challenges of 3D printing.

3) Approach taken by the industry

Item Question

Self-regulation Are there voluntary industry initiative?

LIMITATION OF THE STUDY

In all technology contexts, proving patent infringement can be difficult and costly. In current
legal climate, patent holders who bear the burden of proving infringement and damages face
increased judicial scrutiny of their claims and awards. These substantial challenges hold true
and are enhanced in the increasing complex additive manufacturing realm. While an additive
manufacturing patents validity and claims ultimately turn on its unique facts, certain
prevalent hurdles can make patent protection of this technology inventions increasingly
difficult.

A. THE INVENTIVE CONCEPT REQUIREMENT

A significant amount of additive manufacturing IP exists in the build files and software that
run the printers and scanners that power the technology. While the U.S. Supreme Court has
upheld software patentability generally, it requires an inventive concept apart from the
computer implementation of an abstract idea. Divining what will be sufficient to constitute an
inventive concept in the additive manufacturing context may prove difficult and expensive,
depending on the technology involved. The more additive manufacturing software improves
an existing printing-related process or solves an existing printing-related problem, the more
likely it will be patentable.

B. LACK OF PRIOR ART

The lack of preexisting art also challenges those seeking patent protection of additive
manufacturing technologies. To obtain a patent, an IP holder must describe the art
sufficiently to contain all aspects of the invention. The specification must be sufficient so that
a person of ordinary skill in the art can practice the claimed invention. Technical aspects not
fully explained may jeopardize a technology patentability. In the context of a revolutionary
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technology, this description requirement may prove difficult to meet. Given the
transformative nature of additive manufacturing and, in some cases, the lack of preexisting
relevant technology, prior art guidance on suitable plain language simply may not exist. As
additive manufacturing innovation continues to leapfrog the capabilities and boundaries of
previous technologies, stakeholders must tackle the difficult task of sufficiently describing the
novel four corners of their inventions. The lack of prior art also can impede damage
assessments in infringement actions.

REVIEW OF LITERATURE

Rao Bharat and Matias Elizabeth, in their article ‘3D Printing: On Its Historical
Evolution and the Implications for Business’, (2015) have discussed that Additive
manufacturing technologies have gained prominence in the recent past, and are increasingly
entering the mainstream. In this paper, they briefly describe the historical evolution of
additive manufacturing technologies, highlight current 3D printing applications in both the
consumer and business markets, and evaluate current skill sets of business users and potential
consumers. They have identified five factors that may affect users’ understanding of 3D
printing technologies, thereby influencing users’ likelihood of adoption. The results from an
exploratory study are then presented.

Vogel J. Bryan, in their article ‘3D Printing: Intellectual Property and Additive
Manufacturing 3D Printing: Strategies and Challenges of Applying Traditional IP Laws to
a Transformative Technology’, (2016) have discussed that While the full extent of additive
manufacturing impact remains to be seen, understanding the volatile legal landscape ahead is
crucial to safeguarding the intellectual assets at the heart of this technology evolution. Like
previous disruptive innovations, additive manufacturing will challenge existing legal IP
principles. As traditional laws strain to keep up with revolutionary innovations, ongoing
litigation will continue to push the boundaries of the existing legal framework. Rights holders
must understand and anticipate the evolving legal climate, including the benefits and
limitations of the IP protection they seek. Thoughtful analysis of these issues, including
realistic cost predictions, may prove invaluable. Stakeholders also must appreciate and
acknowledge that despite the most strategic maneuvers to protect their IP, outcomes in this
dicey and evolving climate remain unpredictable. With this appreciation, understanding, and
foresight, additive manufacturing stakeholders can select the most cost-effective and
protective means for safeguarding this disruptive technology’s valuable IP.

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 CASE LAWS:

1. ALIGN TECHNOLOGY V. CLEAR CORRECT PAKISTAN (PVT.), in this case Align

Technology makes INISALIGN braces. The process uses digital models of patient’s teeth
at different progressions along with the treatment plan. Align hen creates the braces from
the digital models with 3D Printing. Align holds numerous patents on this process and the
components produced and used in this process. The respondent allegedly generated digital
models of patient’s teeth by infringing plaintiff’s patents in Pakistan. Respondent then
sent these digital files over the internet to its related company in Texas to make physical
models via 3D Printing. The suit involves patent infringement and the whether it falls
under the term ‘Article’.
2. ESCORTS CONSTRUCTION EQUIPMENT LTD. V. ACTION CONSTRUCTION
EQUIPMENT PRIVATE LTD. & MESHWERKS INC. V. TOYOTA MOTOR SALES,
in these cases, the question of ‘THE PRINTED OBJECT’ was taken into consideration.
Only the visual features as severed from the functional part of the printed object can be
subject to copyright protection. If for instance, there is an intricate pattern in 3D printed
chair,, only that pattern will be protected and not the chair itself.

RESEARCH METHODOLOGY:

Extant research on the technology is typically focused on the mechanics, and user analysis is
largely theoretical. Minimal applied research exists regarding why these technologies
transform underlying business models, and how users, both business and consumer, approach
them as they consider adoption. as the study aims to delve deeper into the legal matters
specifically the laws about Intellectual Property and patent infringement which is very
evident in the 3D Printing businesses; a comparative study will be conducted between the
laws of other countries have and the laws that the other countries developing the art of 3D
printing. Hence, the research is mostly theoretical basing on secondary material.

SCHEME OF THE STUDY:-

This research paper will be divided in chapters, as follows:-

Chapter I- Introduction- Under this, the researcher will be briefly introducing the topic, both
3D Printing as well as the Intellectual Property Rights that it is going to effect.

Chapter II will focus wholly on how the 3D printing works and how the products are made
through this technique.
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Chapter III will focus on the objective of the study.

Chapter IV will discuss on how each section of the IPR will be affected and largely Patent
Laws will be affected.

Chapter V will discuss on the analysis of the data such as the problems arising out of the 3D
Printing.

Chapter VI will discuss the Recommendations and possible solution.

Chapter VII will end with a balanced Conclusion or observation by the researcher(s).

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