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3D Printing's Main Legal Battles Will Be Over Intellectual Property

JD Supra

According to a recent Business Insider story, the future of 3D printing is now. If recent news headlines are anything to go by, BI is onto something: from saving the life of a child with a custom-made airway tube to creating undetectable plastic guns to supplying the International Space Station with new parts, 3D printing has arrived. So what are the legal implications of this latest and greatest?

First, what are the most likely uses of 3D printing?
“The sky is the limit for 3D printing, and its potential uses are limited only by the limits of human creativity itself. In the coming years, its use in non-commercial realms will likely be focused primarily on art, jewelry, and household items such as dishware. Its commercial uses will be much more diverse. 3D printing will be used to manufacture all sorts of items ranging from spare parts for machines to medical devices to human organs and much more.”

What are the biggest legal issues raised by this new technology?
“The principal legal battles over 3D printing will be waged in the intellectual property realm, especially patents and copyrights. More and more parties are submitting patent applications to cover 3D printing techniques and systems. Indeed, the Patent Office has recently taken notice and hosted an Additive Manufacturing Partnership Meeting where examiners could have an open dialogue with industry insiders about the state of the art, the future direction of manufacturing techniques, and issues the Patent Office needs to consider as it examines 3D printing applications.

As for copyright, 3D printing poses challenges for parties whose copyrights may be infringed either through 3D blueprints made available online or via products that are printed using 3D printers. One of the biggest challenges is for copyright holders to identify individuals who may be infringing their rights, especially when such infringement may be taking place in the privacy of the home via a consumer 3D printer. As a result, the likely focus of rights holders will be on websites that host 3D blueprints or that make available for sale products that are printed using 3D printers. Rights holders who think their intellectual property is being infringed may approach such websites with cease and desist letters under the Digital Millennium Copyright Act. Finally, all sorts of untold regulatory issues will likely arise. For example, 3D printing has been used to manufacture human organs. How will the FDA begin to regulate the manufacture of body parts? How will it enforce any regulations? Only time will tell.”

Is there any legislation in place that could stop this technology from being used for dangerous or harmful activities?
“The most pressing regulatory concern surrounding 3D printing stems from the technology’s ability to enable individuals to manufacture weapons or circulate weapons designs without governmental oversight. This issue came to the fore recently when the State Department ordered the website Defense Distributed to remove a 3D blueprint for a plastic gun. The State Department cited the Arms Export Control Act and related regulations, the International Traffic in Arms Regulation or ITAR, as its authority to demand the designs be taken down for their ability to be downloaded abroad.

With respect to the manufacture of weapons, the Undetectable Fire Arms Act may be implicated. It prohibits the manufacture or possession of firearms that are undetectable by metal detectors. Although most 3D manufactured guns today do incorporate some metal element, the possibility exists to manufacture a gun entirely of non-metallic materials. The Undetectable Fire Arms Act is set to expire this December but at least one New York Congressman has vowed to push for a renewal of the law and amend it to ban the manufacture of 3D printed weapons magazines.”

Who has the most to lose from introduction of this technology? Who has the most to gain?
“3D printing offers everyone risk and reward. 3D printing will make manufacturing faster, cheaper, and more versatile. It has the ability to manufacture things that could never be manufactured before. And it offers businesses the ability to manufacture items in single or small batches and enable rapid prototyping. These advances benefit all of us. In the process, though, we need to ensure that regulations designed to protect the consumer are applied in the new 3D printing realm and also that intellectual property holders’ rights are observed. If we don’t ensure such protections are in place, everyone loses.”

Anything else?
“3D printing is in its early stages and many of the legal issues that will likely arise have not yet been imagined. This is what makes the field so interesting for lawyers. We will have the ability to shape the legal landscape but have to ensure we don’t get in the way of innovation at the same time.”

About Paven Malhotra
Mr. Malhotra’s practice focuses on complex commercial and white collar criminal litigation, including intellectual property, legal malpractice, securities, and antitrust. Mr. Malhotra has been an active member of three trial teams, serving as one of the principal associates in one of the largest trade secrets cases ever tried in California. He has also represented various media companies, news outlets, and production companies in litigation and administrative proceedings, as well as maintained an active pro bono practice.