The European Commission has recently published its report
assessing the effectiveness and efficiency of current European
design legislation. The assessment has been conducted over a number
of years and follows the publication of the commission study on
whether current IP systems are fit for purpose in light of
developments in 3D printing. While the 3D printing study considered
all IP rights and their ability to serve as a tool for protecting
innovation in a 3D printing world the design study more generally
looks at fitness for purpose of current design legislation. The
report concludes that EU design legislation achieves its intended
aim and is popular, if somewhat underused.
The study concludes that current legislation should be updated to
account for changes brought about by the digital and green
transformations. In reaching this conclusion the design study
unsurprisingly leans on the earlier 3D printing study. The 3D
printing study found that a particular concern relates to the
handling of CAD files. Whilst CAD files per-se do not attract
design protection the design the CAD file is based on does. As a
result of this it is presently not clear if acts such as uploading,
hosting and downloading a CAD file on a publically available server
constitutes design right infringement. The 3D printing study
suggested that the scope of protection of European design rights be
changed to better protect digital designs. Additionally it
recommends that the breadth of the private use exception in the
context of 3D printing be reviewed to ensure design protection
strikes the correct balance between securing protection and
allowing individuals a reasonable degree of freedom of use.
An expansion of the scope of protection afforded by European design
protection to capture digital designs would be a welcome
development not only for those creating digital content intended
for sharing but also for more traditional manufacturers that simply
create digital blueprints for the purpose of manufacture. The
sharing of such blueprints can enable potential infringers to
reproduce the product shown in the blueprints using 3D printing
without the need for technical/manufacturing expertise that is
required by traditional manufacturing methods. An adjustment of
design protection that would prevent the sharing of CAD files is
therefore of great benefit to all manufacturing industries.
Design protection is an excellent tool to guard against direct
copying. Over the last decade 3D printing has made inroads into
mass-manufacturing and it is to be expected that over the coming
years this trend is set to intensify, as also anticipated in the
commission's design study. As such 3D printing manufacturing is
unlikely to be limited to slavish copying of existing products but
is likely to be used in manufacturing competing products that,
whilst providing a different appearance from the existing product
(and are therefore not covered by any design protection the
existing product may enjoy), provide equivalent functionality to
the existing product. As such it is critical that it is not only
design protection that moves with the times to guard against
infringement in a digital age but that other IP rights are equally
used in a manner that maximises protection against 3D printing
infringement. As previously discussed patents and trademarks in
particular can provide excellent tools for providing such
protection, albeit only if used with the threat of 3D printing
infringement in mind.
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