3D Printers – The technology of choice for creators of Intellectual Property Rights, or infringers?

The benefits of rapid prototyping and 3D scanning and printing technology are obvious.  With the right scanning and 3D printing kit it is possible to copy an object at a touch of a button.  Whilst this technology can help inventors/companies to design and prototype products quickly and efficiently, it also opens up a whole host of issues should a competitor copy a finished product as a stepping stone to production of a marketable reproduction.

David Clark, Partner at Appleyard Lees, looks into this new technology and how it impacts on Intellectual Property Rights.

Over the years, UK legislation on copying has been updated time and again to address new copying technology, right back to the inception of the law of copyright in response to the invention of the printing press.  The good news is that the existing legal framework in the UK already provides a basket of rights to protect against the sort of copying that can be carried out with a 3D printer.

The instant a new design for a product is created, either on paper or as a prototype, UK unregistered design right comes into being, and can give protection against copying of original features of the shape of the design. European Community unregistered design right gives another type of anti-copying protection covering the appearance of a new product.  However, although these rights are automatically arising and do not cost anything, they do not last for particularly long, and proving that a competitor's later design is actually a copy, rather than their independent creation can have difficulties.  Longer term protection which can be enforced without the need to prove copying can be obtained under a registered design, which in the UK and European systems is easy to obtain.  The UK and European systems allow designers to test the market in public for up to one year before deciding whether to invest in registration to extend the protection beyond the period covered by the unregistered design rights.

So far so good, but an important issue in securing the best protection for a new design is the balance between making progress by producing and openly testing prototypes, and the question of confidentiality. Although the UK and European design protection system allows the one year grace period for testing the market then securing protection later, most other countries around the world do not.  Even in the UK and European system there are some risks in using the one year grace period.  More than one type of right can be relevant to a single piece of design work, and if there are inventive technical features in a new design then patent protection might be more useful than the protection under registered designs or unregistered design rights.  Patent protection requires strict confidentiality of the invention up to the point where a patent application has been filed.

This means that care is needed to make an early decision on what to do with the output of a rapid prototyping process.  Testing a single prototype in public can prevent valid patent protection from being available, and the same goes for most international design protection options.  Getting early advice, knowing the extent to which you might be automatically protected and taking an informed decision on whether to invest in further protection while avoiding pitfalls will be beneficial.

In summary, the future is uncertain whether this technology will prove more useful to inventors/companies or for those seeking to benefit unfairly from the work of others, and perhaps as this becomes clear again reactive legislative changes will be needed.  But one thing is certain, good advice from an IP practitioner can set you on the best path for protecting yourself against copying, or making sure that you are aware of the implications of using a competitor's design as an inspiration for your new developments.

For more information on the design, patent and trade mark issues mentioned above click here to view our leaflets or contact David by clicking here.