The missing piece of your favourite puzzle, a priceless jewel, a spare part to replace… All of these products can technically be manufactured by 3D printers. At the dawn of the era of these “new” machines focus is on those printers which can revolutionize manufacturing systems which are also those likely to dominate the judicial pages of Intellectual Property chronicles.
A 3D printer is a machine that starting from a digital file representing a product (digital model), reproduces it in three dimensions. More specifically, the user “draws” a product using a CAD (computer aided design) and then creates a digital file that will be sent to the 3D printer to obtain the final product. It is also possible to use a 3D scanner, eliminating the need to “create” the product in digital format, and basing it therefore on an existing object.
The scanner produces the digital file required for the 3D Printer to design the product. For example, if a spare part of your coffee maker is broken, it is possible to scan the non-damaged part, send the file to your 3D printer and you will be able to replacement part.
There is talk of additive manufacturing, where objects are created by the depositing of material layer by layer, which differs from other methods that work directly with the matter. According to the specialists, this enables products with a more complex structure to be obtained than those which are achieved through other technologies.
Several techniques exist, the most famous being the FDM which consists of a deposit of molten material, selective laser sintering or, the oldest, stereo lithography (method of solidifying liquid plastic by projecting a UV light).
The name “3D printer” does seem to be somewhat surprising, at least at initially. In effect, the definition of a printer (by the Oxford English Dictionary) is “a machine for printing text or pictures, especially one linked to a computer” which could be lead to some confusion.
But when studying their operation the name fulfils its meaning. A digital document is reproduced using a machine containing nozzles similar to those used in standard printers that move to place the product. Thus, it seems that the origin of the term is a simple analogy for the functioning of the conventional printer…
Even now, 3D printers are mainly used for prototyping. Though some schools are already equipped and the product is not, therefore, new (it was created in the 80s!), their use remains ad hoc, or at least intended for low volume reproductions.
However, in some industries they are already in use, not only at the stage of R&D for prototypes, but directly as a method of manufacturing products. The use of these machines can be sometimes breath-taking, worthy of science-fiction.
Besides the fact that this “new” technology is used in the aerospace and automotive industries to create complex spare parts, its application in the medicinal field is remarkable. For example, a surgical department in Dijon has created custom facial implants, in a plastic material, to recreate their patient’s skulls and, in England a man’s severely damaged face has been restored.
A professor at a Californian University has created a construction technology able to build a wall or even a house in less than 24 hours by means of a crane and the deposit, layer by layer, of reinforced concrete.
More frequently, 3D printers are used to create custom artificial limbs and hearing devices.
As the price of 3D printers and scanners is becoming increasingly more accessible, many products can be replicated at home. Spare Parts, toys, shoes, jewellery, we can let our imagination go wild… anything and everything is possible, providing you own the appropriate digital file and machine.
The issue of the safety of these “home-made” products is also very important. For example, the question of the choice of material or the reliability of the created product arises as well as that of the legality of said product. Remarkably a Texas student succeeded in creating a firearm and firing 6 bullets before it disintegrated.
Numerous commercial products are protected by Intellectual Property rights. Their design may be protected by copyright or model and their technical functions by patent. In addition, the shape of certain products or packaging is considered as sufficiently distinctive as to be protected by a trademark (such as the Coca Cola® bottle).
Although their reproduction may be characterized as counterfeiting, the scope of Intellectual Property rights has its limits. Thus, should the use of 3D scanners and printers be classified as a counterfeiting or should it constitute a lawful exception?
Initially, numerous acts are likely to be considered as counterfeiting, as, naturally, one thinks of the reproducing the original product with the machine. It must be remembered that an electronic file that “transforms” the 3D product into 2D is essential; though we cannot ignore the fact that the creation of the file itself may be considered as an infringement.
For example, it could be considered that the file is either an adaptation of the original work protected by copyright or an imitation of a trademark. However, it is difficult to consider it as the counterfeiting of a patent or model, as the product is not reproduced and its technical functions as well as essential aesthetic characteristics are neither upheld nor imitated.
The availability of these files through either a commercial site or private individual also seems likely to be characterized as counterfeiting.
However, in order to determine whether these acts are lawful, an important question must be asked: in what context is the act carried out? In other words, is the act committed in the course of trade, in a private setting for non-commercial purposes or for experimentation purposes?
In effect, article L. 122-5 al 2 of the Intellectual Property Code establishes an exception to the protection by copyright law, namely for copies or reproductions reserved strictly for private use. In articles L. 613-5 b and L. 513-6 of the Intellectual Property Code protection iss not extend to patents and models for acts done privately for non-commercial or experimental purposes.
With regards to article L. 713-2 of the ICC, it stipulates that there is trademark infringement if the reproduction or imitation of the mark was made in the course of trade (namely “in the context of a commercial activity presenting an economic advantage and not in the private sphere” (ECJ Arsenal 12 October 2002)).
These conditions or exceptions therefore need to be clarified in order to determine whether manufacturing products with 3D printers is lawful.
The exception for private copying of copyrights requires that the copyist and the user are the same person, with a tolerance for family members. However, (in Case Law) the person who provides the means to reproduce a work, as well as the one who selects the content has also been considered as the copyist.
Thus, we cannot ignore the fact that the individual who uses a “fab-lab” (laboratory providing 3D printers) or businesses providing these printers to make a copy of their favourite piece of jewellery could be regarded as infringer, just as much as the “fab-lab” or shops themselves. In addition, if the COPY of the product can, in some cases, be considered as lawful, the providing of the file is not (if it is performed by means of one’s own machines and for oneself). Regarding the provision of the file, it will naturally fall within the scope of counterfeiting.
Exceptions for the protection of patents and models to acts committed in a private setting for non-commercial or experimental purposes must be strictly interpreted.
While the creation of the electronic file itself may not be regarded as an act of counterfeiting as it does not reproduce the product, the provision of said file could be described as ‘providing essential resources for the realisation of the product covered by the patent, regardless of the commercial purpose’ and, therefore be considered as counterfeiting. This characteristic does not exist in model law.
Regarding the reproduction of the product itself by the 3D printer, if it remains in the private and non-commercial setting, it will certainly not be considered an infringement.
Finally, the answer is different regarding trademarks. Counterfeiting is only present if the act is performed in the business world. It is not an exception to the law, but a condition for committing counterfeiting.
Thus, if the created electronic file is made available for sale to the public, there will be infringement, just as for the final product obtained by the 3D printer.
The courts will surely soon have to decide on all these points and to assess, case by case, whether or not there is an infringement.
In any event, this technology risks being so attractive that there is likely to be a loss of consciousness as to the legality or not of these acts on the part of the consumers and internet sites providing electronic files of protected products, not forgetting the “fab-labs”.
In any case we advise you to check that the product to be reproduced is not protected by an Intellectual Property right, and we are available to help you with any necessary research.
Having these exceptional machines available at your fingertips will certainly be a revolution for all individuals and will permit significant progress in many areas that raise the question of the reliability of created parts. As for the Industrial Property rights, it will generate discussions leading to a more precise definition of their scope as with any technological advance.
In any case, we can expect there to be legal disputes in this field and have already anticipated these issues in order to be ready to respond! Please contact us before engaging in any activity using 3D printer technology!
