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3D printers: Is your IP at risk?

A growing number of construction companies are turning to 3D printing suppliers to produce smaller parts for large-scale projects, but could such activity be putting their intellectual property at risk? 

The increasing popularity of 3D printing, or additive manufacturing, as a viable way to produce parts on a commercial scale is bringing with it a unique set of challenges for innovators wanting to safeguard their creations.

In the construction sector especially, applications for additive manufacturing technology have largely been concerned with the manufacture of large concrete structures used in the housebuilding sector.

During the manufacturing process, concrete is built up in layers by heavy 3D printers covering several square metres of space to form parts for houses, walls or other prefabricated structures. From an intellectual property perspective, the large-scale nature of 3D-printed products used in construction is advantageous, as very few companies or individuals have the equipment necessary to carry out additive manufacturing on such a significant scale.

Patent potential

For now, most 3D-printed parts for the building sector are produced off site by professional manufacturers and then shipped to specific locations as needed. However, smaller parts used in the industry, such as fasteners or seals, are already being produced at home by some private individuals via 3D printing processes.

In recent years, the number of patent filings for 3D-printing applications has increased dramatically and innovators appear to be realising the importance of protecting every aspect of their innovations.

“Expiring patents have fuelled a general misconception that 3D printing manufacturing is a new production method when, in fact, the relatively simple processes involved have been in use for decades”

Patents have a term of 20 years, after which the technologies they protect can be used by third parties and, over the last few years, a number of key patents relating to additive manufacturing, in particular fused deposition modelling and metal laser sintering, have expired. These expiring patents have fuelled a general misconception that 3D printing manufacturing is a new production method when, in fact, the relatively simple processes involved have been in use for decades.

It is only now, as the core patents protecting the technology are starting to expire, that the technology is ripe for wider take-up and that the public is beginning to realise its enormous potential. In view of the above, complications arising from IP rights and additive manufacturing normally concern the sharing and third-party distribution of CAD files that contain images of products relating to protected IP; 3D printers can then be used to effortlessly recreate parts and models included within the CAD file.

CAD care

If an individual with access to domestic 3D-printing equipment obtains and reproduces products contained in such CAD files for private and non-commercial uses, no IP infringement can occur, as many jurisdictions allow non-commercial use of protected innovations as a non-infringing act. This is not to say that sharing of the CAD files in the first place is not treated as an act of infringing IP covering the product defined by the CAD file.

“Once a CAD file is created, the owner automatically owns the copyright and innovators have long relied on this as a first line of protection. In reality, it is difficult to identify cases of infringement where files have been distributed digitally”

For any business looking to protect key IP assets, such as CAD files, the advice is to take care and be prepared. Cases of IP infringement in the realm of additive manufacturing are a relatively new phenomenon and the best approach that any business can take is a proactive one.

Once a CAD file is created, the owner automatically owns the copyright and innovators have long relied on this as a first line of protection. However, in reality, it is often difficult to identify cases of infringement where files have been distributed digitally. File-sharing platforms such as ‘Thingiverse’ have been in place for nearly a decade and could be considered the YouTube of 3D printing.

While file sharing of illegal copies of the IP owner’s CAD files will often constitute a copyright infringement, the use of a 3D scanner to create personal CAD files of a legally purchased product and sharing the latter online may not be such a clear-cut case. In such instances, businesses would be well advised to obtain registered IP rights (patent, design and trademark registrations, for example) to protect their innovations from unwanted reproduction via third-party CAD files.

Evolving case law

In larger engineering companies, it is normal practice to seek protection for each specific innovation through a number of different registered IP rights. However, despite the current lack of case law in the area of 3D printing, any individual or organisation looking to protect their developments should assess the work they are producing and develop an appropriate IP strategy to match the new challenges posed by the rise of modern additive manufacturing methods.

“Anyone thinking that the ease with which CAD files can be shared and used is a reason for not seeking IP protection should think back to the era of prolific file sharing in the music industry”

Currently, 3D-printing technology is often selected to manufacture parts of a mainly aesthetic nature, due to its ability to produce uniform, geometric shapes. With this in mind, it may be appropriate to seek registered design right protection for such innovations, rather than relying on copyrights to protect owners from 3D printed copies.

Anyone thinking that the ease with which CAD files can be shared and used is a reason for not seeking IP protection should think back to the era of prolific file sharing in the music industry.

In the early 2000s it was commonplace for music files to be downloaded and shared illegally. As time went on, musical artists and their producers became stricter in their pursuit of copyright claims and case law evolved to help deal with the problem – in particular, the European Software Directive was introduced.

The same evolution of case law is expected in the realm of additive manufacturing.

For now, however, businesses developing novel 3D-printing applications for the construction sector should invest in patent or registered design protection now in order to preserve any commercial potential they might have in the future.

Frank Harner is a patent attorney, and David McWilliams is a partner, in the advanced engineering group at Withers & Rogers

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