The Threat of 3D Printing: Blakes Seminar

October 21 — Blake, Cassels & Graydon put on an excellent seminar last week on the threat to intellectual property posed by “3D printing.”

MakerBot

A 3D printer MakerBot Replicator 2 produces a sculpture at the CeBit computer fair in Hanover March, 5, 2013. REUTERS

If you haven’t heard, this is the technology — poised to utterly disrupt the manufacturing sector — that enables a smaller-than-a-breadbox device to create a detailed plastic or metal object right on your desktop.

It’s called “printing,” incidentally, because the most recent iteration of the technology works a lot like an inkjet printer, spitting out a glue-like liquid plastic that dries quickly, allowing another layer to be quickly printed on top … until, of course, you’re left with a 3D object.

As you can imagine, the potential for consumers and small business owners is immense — Lost a button? Wait a second, I’ll just print a new one — but so too is the threat of IP infringement.

Consider designer glasses. Instead of shelling out $500 for a pair of Oakleys (or whatever), a consumer might be able to download the precise 3D schematics via peer-to-peer sharing software and simply print off the frames at home — without paying Oakley a dime. (Have we got your attention yet?)

3D printing has actually been around for a long time. Brett Slaney, a patent agent at Blakes, remarked that the first meaningful patents for 3D printing came out in the 1980s, and manufacturers — particularly auto parts makers — have been using it for decades to construct prototypes.

Because the patents for the technology are so old, many of them have now expired. This has led companies (the big name right now is MakerBot) to leap in to grab a share of the burgeoning market. All that competition has sent prices plummeting. Today, you can buy a 3D printer at Staples for $1,000 — well within the ambit of consumers.

Tony Turco, a litigator at Blakes, says that copyright may afford some protection for IP holders, but not much. So imagine you lose your cuff links:

“The Copyright Act allows you to make copies of so-called ‘useful articles,’ and a cuff link is a useful article because it keeps your sleeves together. By contrast, a broach or a pin, if it’s purely decorative, is not a useful article, so that would be an artistic work, and you would be liable for copyright infringement if you made a copy of that work.”

(So a cuff link would likely not be protected, but a broach would be — it’s undoubtedly a grey area that manufacturers should be cautious of.)

Even something as distinctive as a product’s blueprints, says Turco, would not be completely protected under copyright. Of course, distributing scans of the blueprint would be a blatant infringement, but information within the blueprint can always be expressed in a way designed to avoid copyright infringement.

Manufacturers could try to trademark the design itself, but Turco says this isn’t as simple as it sounds. In order to have a trademark registered for a “distinguishing guise,” a company needs to establish that its reputation is such that the product’s design would be an obvious marker.

“You could say that cuff link is so distinctive that anybody who sees that cuff link knows that it comes from me. That design has become my trademark. The problem with those cases is that they’re very hard to prove.”

Slaney says maybe the simplest way to protect IP might be to file for design patents in markets where the product sells. Admittedly, though, this may not be foolproof. Someone using a 3D printer might be able to tweak the design, and Slaney says there’s some question as to whether a change like this might be enough to avoid a patent infringement.

Does this all sound less than encouraging? Don’t panic, says Turco.

“All disruptive technologies have presented challenges to IP, and IP laws have struggled to keep up, whether it be photocopier, VCR, Internet, digital music. Over time, the law eventually responds, finds a way to keep up.”

Moreover, there are plenty of lessons to be had in the missteps of the recording industry (which brought on a public-relations catastrophe when it began suing teenagers who were illegally downloading music).

“You could go the way of the music industry and start suing people, or you might start to look at different distribution models.”

Instead of suing potential customers, both Slaney and Turco suggest that manufacturers might look ahead to an iTunes model, where designs can be sold online. Consumers might be willing to pay for schematics that have been quality-controlled. Turco says that the manufacturer might even backstop the cost of the design with a warranty.

Ultimately, parliamentarians may have to look at whether the laws for protecting IP from this new threat are sufficient, says Turco. Companies may have to step up their lobbying efforts.

–David Dias

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