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3D Printing and IP: Can They Coexist?

3D printing, or as engineers sometimes call it, ”rapid prototyping,” has been around since the late 1970s when Wyn Kelly Swainson was granted U.S. Patent Number 4,041,476, “Method, Medium and Apparatus for Producing Three-Dimensional Figure Products.” Swainson’s invention involved a laser that caused covalent cross-linking at the surface of a monomer to produce a three-dimensional figure. Over the years, the technology has developed further with 3D printing being referred to as additive or direct digital manufacturing. The process for producing a 3D object involves uploading a digital blueprint that has been created using computer-aided design (CAD) software. The 3D printer generates the object by an additive process that involves layers of material added to a base by the printer according to the 2-dimensional slices that comprise the digital blueprint of the object. The layers of material being deposited may be in liquid, powder or filament form and are applied and fused together to ultimately form the object depicted in the digital blueprint. The additive process is very attractive to the medical device industry because of: 1) the reduced cost; 2) the waste minimization when compared to the more standard “subtractive” process seen with traditional CNC manufacturing and 3) the ability to make intricate and complex structures.

Essentially, an individual can create a digital blueprint of an object by using a 3D scanner and downloading the collected information into corresponding CAD software. The digital blueprint can then be downloaded into the 3D printer to produce a copy of the original object. The ease by which an individual can create and copy objects causes many potential intellectual property (IP) issues and highlights the uncertainty of the coexistence of 3D printing and the infringement of IP rights.

3D Printing and Copyright Protection
Copyright protection is involved in two aspects of 3D technology: the digital blueprints and the objects being copied. Copyright immediately comes into existence for a creative work that has been fixed in tangible medium (paper, canvas, disk, computer, etc.) or when the physical embodiment is generated. Examples of works protected by copyright include writings, drawings, blueprints, sculptures and other creative objects. With this background, copyright protection applies to objects being copied using a 3D printer that are design oriented. For example, an OEM decides to copy the creative shape of the bearing surface of an elbow prostheses of another company; this act could be seen as copyright infringement. The Copyright Act has teeth, if the creative design has been registered with the U.S. Copyright Office. Specifically, one could collect statutory damage of up to $150,000 each time the work is copied, if it is determined that the copying was willful. An important rule of thumb is that if you are going to copy an object, you must first determine whether the object is in the public domain or permission from the owner is required.

Copyright protection may also extend to the digital blueprints that one used to drive the 3D printer. If the blueprint is independently generated, then this document itself is protectable. However, if the individual has copied the digital blueprint, then this act of copying could be seen as copyright infringement. In addition, if the digital blueprint of the design covers only the useful aspects of the copied object, would copying the blueprint or the object be copyright infringement if these aspects are not eligible for protection? As you see, the question of copyright infringement involving 3D printing has a lot of uncertainty. Some best practices would be to not copy objects that are not clearly in the public domain or blueprints that define the creative aspects of the object. Whenever in doubt, ask permission before copying anything.

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