3D Printing and Intellectual Property

Last month, Home Depot announced they would start selling 3D printers in some of their stores. This seems like the next step in the consumerization of technology that began as exclusively for high end users such as automotive manufacturers and architects but is now becoming useable for almost anyone. Even the Toronto Public Library has 3D printers “even for beginners to use.” What effect will the increasing use of 3D printing technology by consumers have on intellectual property and what effect will intellectual property have on the technology?

3D printing is generally a term for additive printing where material is added by a machine to form the desired shape. In some 3D printers, such as the printer I have, plastic filament is melted and extruded layer-by-layer to form the design. This is in contrast to subtractive manufacturing where material is cut away from a larger piece of material.

Many commentators have identified the potential for a revolutionary change due to the technology and compared the possible effect to that of peer-to-peer downloading on digital markets. 3D printing has the potential to change manufacturing from a centralized process with well-known distribution channels, to a distributed system with many points of manufacturing.

Interestingly, one of the reasons identified for the growth in the technology in the last several years was the expiry of several patents on 3D printing technology that allowed smaller companies and individuals to work with the technology. Several patents on laser sintering, another technique for 3D printing, expired earlier this year and may spark additional development.

What intellectual property may apply to the items being 3D printed?

Patents – 3D printers, particularly the higher end printers can easily create mechanical devices out of a variety of materials. For example, Shapeways, a commercial 3D printing company, will 3D print a working 28-geared cube with rotating gears, all printed as one piece. If a design is patented, “making” the invention could be an infringement of the patent.

The Patent Act does not include “fair dealing” or a personal use exemption (although it does allow experiments that relating to the patent under s. 55(6)). Rather than enforcing patents against individuals printing objects on their personal printers, patent owners may try to sue entities hosting the 3D data files used by the printers on the basis of inducing infringement, or companies offering 3D printing services.

Trademarks – Designs having features that are distinctive of source may be protected by trademark law. Trademark law also protects distinguishing guises which may be asserted if the 3D printed objects reproduce the distinctive features. On the other hand, trademark rights and infringement currently require ‘use’, which may not include private non-commercial reproduction. In addition, trade-marks and distinguishing guise do not extend to a “functional use or characteristic” (see s. 13(2) of the Trademarks Act and Kirkbi AG v. Ritvik Holdings Inc., 2005 SCC 65).

Copyright – Copyright law has seen the most debate and application to the online world but it is unclear how successfully it can be applied to 3D printing. The 3D design files used by the printers are likely covered by copyright but the application to the actual printed objects is less clear. HBO has used U.S. copyright legislation to have a 3D printable design for a throne iPhone charging dock inspired by the Games of Throne TV show removed.

There is also a provision of the Copyright Act that design of an article by making the article if a design has been applied to a useful article and more than 50 articles have been made (see s. 64(2) of the Copyright Act), although exceptions exist for trade-marks.

In Crocs Canada Inc. v. Holey Soles Holdings Ltd., 2008 FC 188, the court wrestled with some of these issues on a summary judgment motion considering whether trademark or copyright could be asserted to protect the plaintiff’s Crocs footwear. In the Pyrrha Design Inc. v. 623735 Saskatchewan Ltd., 2004 FCA 423, summarized the application of the Copyright Act:

This legislation provides, therefore, that copyright may exist in a design of a useful article, but if that useful article is produced in a quantity of more than 50, it is not an infringement of the copyright for others to reproduce similar articles. In other words, where copyright exists in such articles produced in what might be considered commercial quantities, an action for copyright infringement may not lie, but the remedy, if any, must depend upon the registration system under the Industrial Design Act, R.S.C. I-9.

Industrial Designs – The Industrial Designs Act protects “features of shape, configuration, pattern or ornament and any combination of those features that, in a finished article, appeal to and are judged solely by the eye”. Unlike copyright arises without registration, industrial designs must be applied for and registered for a 10 year term. Enforcement of a registered industrial design likely would face similar difficulties as enforcing patents, who does the rights owner sue?

What’s Next?

It remains to be seen how the 3D printing ‘revolution’ changes the balance of rights and the ability to enforce those rights. Some companies are trying to jump into the new technology in different ways. Nokia has released 3D design files for its phone shells to allow consumers to 3D print their own cases. Hasbro has recently created a site that allows fans to share original designs based on its My Little Pony brands to be 3D printed and sold.

There is also the rapid consumerization in 3D scanning technology (see for example the Matter and Form Scanner) that will make copying of existing designs more straightforward. The combination of 3D scanning with 3D printing could make it much easier for end users to copy existing objects.

Lots of creative people are pushing the technology and the possible uses in new direction. It remains to be seen how the law helps or hinders the development.


  1. Absolutely fascinating, futurist stuff. Picture a time when you print your own fresh bouquet of plastic flowers. Print off your back-to-school supplies. When you run out of spools of substrate on your home 3D machines, Home Depot’s drones will drop one off to you.
    It’s been the topic of a few conversations I’ve been part of lately around distributed manufacturing and peer-to-peer IP and designs. Could 3D printers spell the end of mass container cargo with auto parts, kitchen wares, dollar store staples, toys, bric-a-brac, and other small goods speeding across the oceans. Would spools or grains of printer materials be the only non-heavy manufacturing industry left?
    It’s all more complex than the “time-shifting” debates of early VCR technology, and more complex than music piracy in the late ’90s, but I wonder if this massive new 3D printing thing won’t just make another Apple/iTunes story out of some big player who can snag the best printing technology, broker the best deal with IP owners, DRM the hell out of it all, and then balance the costs to consumers so keenly that the majority will simply give up trying to steal designs and jail-break their printers and just buy in.
    Who will be this Apple of manufacturing? The ones with the deepest pockets and the most to lose on this could likely be big boxes like Home Depot and Walmart, so it’s definitely predictable to see their interest here.
    And I don’t see any reason why the networked 3D printing machine of the near future won’t be as large capacity as possible. Fridge sized printers? Why not print lawn furniture? Maybe Google and Miele join forces to produce the perfect accompaniment to the automated home, the automated home that auto-populates its own objects! Entire apartment themes could come to life: napkin rings; light sconces; wall coverings, dog bed.
    Perhaps we’ll even see a home 3D printer built on N. American soil.

  2. Its a fascinating field, both from the technology and the IP law implications.

    At the IPOA talks in Vancouver last week there was a great session on the IP implications of 3d printing with talks from IP counsel from General Electric and Caterpillar Inc. as well as several US practitioners with experience in the area.

    The takeaway I got from it seemed to be that yes, 3d printing will be a big deal, and has the potential to drastically change manufacturing (one example being an 80% weight reduction in an aircraft part, another being a reduction in turn around time from drawing board to fabricated model from 8 weeks to 1. However, it is over-hyped in some aspects, in that the materials from 3d printing and the costs will make it impractical for a lot of items (an example given being toy models, which lend themselves to copying with 3d printers, but plush toys, which do not).

    The general consensus seemed to be that current IP laws could be adapted in many cases, but counsel needed to be aware of the implications. There were some arguments that new IP laws may be needed (in particular there are difficulties in applying US patent law to 3d products which could be designed/shipped/produced in different jurisdictions ) but it was hard to envision a one size fits all approach that would be applicable to the field.

    To the extent there was a contender, a DMCA style approach extended to 3d printable files sounded as if it might be a plausible balance between adopting old laws to the new technology, while avoiding a new set of rules that would stifle the development of the field.

  3. Great article. I am currently pursuing an LL.M. and the subject of my research is the IP implications of 3D printing technologies. The point about use in trademark law should not be understated. I would say more, but I am hoping to publish my thesis ;)

  4. What I find troubling about the use of 3D printers by private individuals is the apparent assumption among consumers that that the design schematics will be freely available for download from the Internet. There seems to be no understanding that those schematics took intellectual capital to develop and shouldn’t be free. Will our engineers follow in the footsteps of our musicians and authors? No one seems to want to pay for the knowledge economy, but if no one pays for it all these highly educated students won’t be able to sell that intellectual capital and will be stuck selling their labour to Starbucks for their entire career!

  5. Michele,
    I think most people considering the import of 3D’s advancement can appreciate that designs have inherent value, and cost someone something to develop. I take only at face value the fear or assertion that 3D printing is a slippery slope to engineers becoming baristas. That is a far more likely outcome for barristers.
    Think about the opportunities that could level the playing field. Today, if I develop the next generation Rubik’s Cube, I would need manufacturing and distribution channels to sell them. Costs of manufacturing would only scale in my favour at large numbers, and so would distribution. If I wanted to sell in Walmart, I’d need to sell very nearly at cost until big numbers. I would probably, unless I had personal bankroll, need an investor or have to sell my idea to someone who could scale up. Either way I’d be out equity, capital or in debt.
    In the future, we should consider the possibility that engineers and other creatives might follow more in the footsteps of iOS developers than the dinosaur tracks of record music labels. At this very moment there is a programmer coming up with a new game or app of convenience for the App Store. That person will not have to cellophane wrap a box to sell the app on a CD at Radio Shack. And the App Store (plus the devices, firmware and software that sync with it) offers some balance of price, convenience, creator reward, security and DRM that seems to work.
    I guess I really see the winner of the 3D printer market as holding a similar business canvas for certain consumer goods (toys, housewares, fashion accessories, etc.) as Apple
    holds with media.
    Consider that the iPod wasn’t the first MP3 player, and neither was iTunes the first music app. But this became they became the first viable business model. For a long time you could download music illegally and play it on a Rio PMP300. That sucked for RIAA, and they used every stick they could get their knuckles around to try and bash the tech companies and consumers that threatened their business model. How did Apple drive up the middle and disrupt all that? By changing the marketing and pricing (pricing tracks unbundled from albums), building an unrivaled best device and UI, locking down DRM, and becoming the clearinghouse for IP products. Probably I missed some things there.

  6. In some cases Michele the designs will be posted whether the engineers want them to be or not. Once a physical product is on the market for many products it will be impossible to prevent someone from scanning an image and creating a 3D printable file. While intellectual property laws might be useful to diminish the accessibility of these files, they will be around.

    One other route to the availability of files may be non-official competing products being produced and published by hobbyist, or engineers working in lower costs jurisdictions seeking to obtain representational advantages. In some cases these may run afoul of intellectual property laws, but in many others the competing product should be ok.

  7. and .. .there is open-source hardware and software for 3D operations and applications. One of the better-known is Arduino, which allows people to make just about anything, from tree-climbing robots to internet-connected clothing.