Are infringements of IP rights on the horizon with the advent of 3D printers?

When web sites first started to proliferate, owners of intellectual property like music, photos, films, and other visual arts became concerned with the ease of copying their IP. A similar situation is starting to arise for patent, copyright, and trademark owners with the advent of three-dimensional printing (“3D printing”).

For those who think 3D printing is something for holiday cards, that’s correct, but the technology has expanded far beyond that realm. Users have made toys, lamps, chairs, individualized masks for burn victims, and thousands of other objects – including guns.[1] See Network World Slide Show of 3D objects; see also Network World Mar. 21, 2013 Article on 3D guns.

The 3D printing process works by printing layer upon layer of plastic, according to a design that the printer follows. The design can either reside in a library maintained by the printer manufacturer or can be a design that the user creates. Currently, one of the manufacturers with a large market share, MakerBot, offers a desktop 3D printer with a build space approximately the size of a loaf of bread (410 cubic inches).

Research firm Gartner, Inc. found that 3D printing “is already established in industries ranging from automotive manufacturing to consumer goods to the military, as well as the medical and pharmaceutical industries.” See Gartner Press Mar. 26, 2013 Release. In addition, Gartner estimates that “enterprise-class” 3D printers will be available for less than $3,000 by 2016.

Biomedical companies are reportedly using 3D printers for such diverse objects as personalized hearing aids to dental restorations to orthodontic braces. See Smithsonian Magazine May 2013 Article. In fact, in March 2013, following FDA review, a medical patient had 75% of his skull replaced with a plastic implant created with 3D printing. Id. The ability to print skin, tissue and organs could affect health care by decreasing the risk of rejection of transplanted organs, eliminating organ traffickers, and assisting prescription drug companies in testing new drugs on the created organs or tissue. Id.

There have not yet been any cases involving copyright or trademark claims against 3D printing [2], but brand owners may wish to consider adding – even if they are not legally required – proprietary rights notices on their goods. Although they may not be required, proprietary rights notices can serve as a warning to users that replicas may not be authorized. In addition, brand owners may wish to review the design libraries that the 3D printer manufacturers or others may make available on web sites, and, with respect to goods covered by a registered copyright, consider a DMCA “takedown” notice for those designs that potentially infringe the owner’s copyright.

Sources: Michael Cooney, “Wicked Cool 3D Printer Creations,” NetworkWorld, Mar. 8, 2013; Gartner Inc. Press Release, “Gartner Says Early Adopters of 3D Printing Technology Could Gain an Innovation Advantage Over Rivals,” Mar. 26, 2013; Elizabeth Royte, “What Lies Ahead for 3-D Printing?,” Smithsonian , May 2013; Ritani, LLC vs. Harout Aghjayan, et al., Case No. 11-civ-8928 (S.D. N.Y.); Forbes; Defense Distributed.

This article was prepared by Sue Ross (sross@fulbright.com / 212 318 3280) of Privacy, Competition and Data Protection Practice.
[1] “Defense Distributed, the pro-gun nonprofit working to make 3D-printable gun designs freely available to everyone on the Internet, recently inched one step closer toward achieving that goal. The Austin, Texas-based group was recently granted a federal firearms license from the federal Bureau of Alcohol, Tobacco, Firearms and Explosives.” Zach Miners, “Would a 3D Printed Gun Really Be Legal,” NetworkWorld, March 21, 2013. The pro-gun nonprofit’s site has been taken down following a letter from the State Department raising questions about compliance with the International Traffic in Arms Regulations (ITARs). Andy Greenberg, ”State Department Demands Takedown Of 3D-Printable Gun Files For Possible Export Control Violations,” Forbes, May 9, 2013.

[2] A plaintiff that designed and manufactures high-end jewelry alleged that one defendant used a 3D printer to create a wax model of jewelry that plaintiff protected with both copyright and trademark registrations, in a complex case involving multiple claims, including infringement, false advertising, breach of contract, and breach of fiduciary duty. See Ritani, LLC v. Aghjayan, 880 F. Supp. 2d 425 (S.D.N.Y. 2012).