UK: 3D Printing & The Retail Industry

Last Updated: 1 August 2014
Article by Clive Thorne

Ramifications for Intellectual Property...

3D printing is a way of creating solid three dimensional objects by printing, using a laser sintering procedure, micro thin layers of material on top of each other.  The technology was invented in the 1980s and is now widely used throughout the creative industries to reproduce and create products and spare parts.

For example, 3D printing is now used widely in certain industries including architecture, jewellery design, fashion goods such as shoes, toys, automotive, aerospace, healthcare, dentistry and electronics.

Until about 2005, a 3D printer would cost around £10,000.  Nowadays, they are available for retail sale between £1,000 to £2,000.  It is estimated that the economic impact of 3D printing could be up to $550 billion by 2025.

There are significant economic advantages in using 3D printing processes.  Products can be printed locally and thus avoid distribution chains and transport costs.  The printers can be used on a bespoke basis so the printed products are manufactured to order or on demand.  3D modules for particular designs can be transmitted electronically whilst printing takes place elsewhere.

In the case of patents, private use of a 3D printer will not normally infringe the patent.  However, if a patented product is created using the 3D process and made available commercially then an act of infringement may occur.  If a spare part is created which might otherwise infringe the patent then the defence of repair may be available.

Copyright law protects artistic works.  By way of example copyright infringement might arise in reproducing an artistic work such as a vase by reproducing the vase using the 3D printing process.

UK and EU design law protects industrial designs from infringement.  Design law incorporates exceptions which provide that the manufacturer of a spare part will not infringe.  For example, UK unregistered design right incorporates a must fit/must match exception.  This was prompted by a commercial need to liberalise the market for the manufacture of spare parts.

Trademark law is relevant if the 3D printing process results in the printing or scanning of a product, bearing a third party's trademark.  To avoid liability for trademark infringement the registered trademark should be removed from the printed article.  Passing off in some circumstances extends to articles in which the manufacturer has acquired a reputation in the article itself because it is distinctive of the manufacturer.  The classic example was the "Jif" lemon.  Thus the manufacture by a 3D printing process of plastic lemons may by analogy also constitute passing off.

The increased use of 3D printing will have considerable legal ramifications for the consumer-based retail industry.  These will include the immediate access to spare parts for consumer goods, reductions in servicing costs, speed of delivery, reduced warehouse facilities and product liability obligations.  All of these factors will result in different legal obligations including the form of distributorship agreements and in particular tie-in premiums, intellectual property licensing by manufacturers, increased retailer product liability obligations and liabilities for intellectual property infringement.

Other areas of the law are likely to be of considerable importance. 3D printing raises significant competition law issues. In proceedings in United States, anti-trust proceedings were commenced in an attempt to prevent the tie in of resins to 3D printers.

Issues of encryption and data protection will arise when 3D designs are transmitted on the internet.  The process also raises difficult issues of product liability.  For example, if the product of a 3D printer causes damage who should bear the responsibility, the manufacturer, the designer, the scanner or the provider?

It has been argued that the 3D printing process will greatly increase the ability to counterfeit goods on the basis that counterfeit articles produced by a 3D printing process will be available more cheaply.  The lack of an expensive distribution chain means that the rewards for counterfeiting will be greater and the ability to prevent counterfeiting will be less.

In November 2013, the UK Intellectual Property Office set out an overview of the intellectual property issues arising from 3D printing and reached the conclusion that "3D printing is spreading across many technologies and has the potential to disrupt many of them...." It is highly likely that the implications of 3D printing will force major changes in current intellectual property law.

Originally published in Fashion Capital.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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