3D printing has many fascinating applications, such as ‘printing’ replacement organs for humans. This summer the first entirely soft artificial heart was created using a 3D printer, which beats much like a human heart (read more here). Yet this technology also poses challenges for the enforcement of intellectual property rights.

What is 3D printing?

3D printing, also called additive manufacturing, refers to an automated process of producing three-dimensional objects. The process begins with a Computer Aided Design (CAD) file which is a digital file containing the design of the relevant object. The CAD file can then be used with a 3D printer to produce the physical object. The machine ‘prints’ layer by layer to produce the final object, each layer being a horizontal cross-section of that object.

In most cases a CAD file will be created either by downloading the CAD file or by using a 3D scanner and accompanying software to scan a physical object and produce a digital model which can be converted into a CAD file. There are many online platforms dedicated to sharing such files.

Enforcement of IP rights

A three-dimensional object could be protected by copyright, design rights and conceivably also a patent or a trade mark. Replicating this object could, therefore, infringe those rights, although, this would depend on the purpose for which the object is replicated. The CAD file itself is also likely to attract copyright protection.

The current law is already equipped to deal with infringement of IP rights through the sharing of CAD files online. Blocking injunctions may be granted against ISPs to prevent access to online websites which facilitate the sharing of infringing copies of CAD files. The CAD file may be infringing either copyright in the original digital file, or IP rights in the 3D object. For example, copyright in a 3D object can be infringed by making a two-dimensional copy stored in a CAD file by virtue of s17(3) of the Copyright Designs and Patents Act (CDPA) 1988.

Although traditionally blocking injunctions have been granted to protect copyright, Cartier International and Others vs BSkyB and others [2016] EWCA Civ 658 indicates that blocking injunctions are also available to protect other IP rights. In Cartier a blocking injunction was granted against internet service providers to prevent access to websites with trade mark infringing products.

However, online platforms dedicated to sharing digital design files of 3D objects tend to allow users to upload designs as well as save and share edited versions of existing designs. This creative input by individuals means that it is not certain that an injunction would be granted to prevent access to such sites. A court has to consider the proportionality of an injunction before granting it (Article 3 of the Enforcement Directive (Directive 2004/48/EC)), including the impact on lawful users. However, this assessment may be challenging because identifying the proportion of design files which infringe IP rights is likely to be difficult.

Further issues will arise as 3D printers become more affordable and widespread. Consumers may soon be able to replicate 3D objects in their homes and without going online using downloaded software packages and 3D scanners. This might encourage infringement of IP rights day to day and make successful injunctions tricky.