An IP owner’s guide to 3D printing
3D printers are becoming increasingly popular. Once affordable only to large manufacturers (BMW was an early adopter) or to specialist prototyping bureaus, 3D printers are now commonly owned by product designers, architects and schools. A new generation of (relatively) reliable and slickly designed printers is targeting the home enthusiast.
This popularity has fuelled intellectual property concerns. The nightmare scenario for IP owners is that their products go the way of music and video: rampant online sharing of files for the creation of copies of their products that are printed at home. As if to confirm this, The Pirate Bay, the notorious online collection of pirated music and videos, introduced a ‘physibles’ category for 3D printing files. Gartner, the information technology research and advisory firm, has predicted “intellectual property theft worth at least $16 billion in 2016 due to 3D printing”. As explored below, such concerns may, for now, be overstated.
Finding infringements
IP owners can easily take a measure of potential infringements by searching the leading 3D printing sites: Shapeways, a site selling 3D-printed products, and Thingiverse, a site for sharing 3D files. Shapeways announced its millionth object sold back in 2012 and Thingiverse celebrated its 100,000th “thing” (3D file) in 2013.
Other marketplaces have popped up, including 3D Builder (Microsoft), Exact (eBay) and MyEasy3D (Staples, the office supplies company). These, along with Pirate Bay’s physibles, have very small collections compared to the big two.
IP owners might also be interested in sites such as TurboSquid, which hosts extraordinarily faithful 3D files of a wide range of consumer objects from handbags to sports cars. The files are not designed for 3D printing—they are intended for inclusion in 3D games, architectural drawings, etc—but they could, in theory, be adapted for 3D printing (and they may be of interest to brand owners in their own right).
Shapeways and Thingiverse offer straightforward IP take-down services. But before you fire off a complaint, consider the following.
What can you 3D print?
3D printing is an amazing technology. It can produce shapes with interlocking parts or highly complex internal structures that would be impossible with conventional manufacturing. It can radically reduce the weight of a given object by using internal honeycomb structures, making it popular in the aerospace industry. Moreover, it can produce short-run or one-off bespoke items that would be uneconomical to make any other way. Shapeways allows designers to market original and often highly intricate products, from plastic egg cups to gold necklaces, without the overheads of keeping inventory, sales or fulfilment.
The best designs make you forget the limitations of 3D-printed products: essentially they are formed of a single material with little scope for fine surface finish or decoration. They disguise the fact that even the latest 3D printers, domestic or industrial, are fundamentally unsuitable for mass production and that, for the vast majority of consumer products, a 3D-printed equivalent would be too low in quality, too expensive or simply impossible.
Anyone with a computer can ‘rip’ a CD to create an exact digital duplicate of the music. There is no equivalent for physical products. Scanning physical objects is difficult: it requires specialist equipment, the physical objects need to be prepped (eg, masking transparent areas) and the resulting files may lose fine detail and/or include aberrant shapes that need to be removed. Moreover, whatever the quality of the source file, consumer 3D printers produce objects that no consumer would accept over a conventionally manufactured alternative. Such printers turn out brittle, plastic objects, marred by the unsightly steps or stripes resulting from building up the shape from layers of extruded plastic filament.
Industrial machines produce high resolution shapes by sintering powdered metal or nylon or curing resin with light. Shapes made from metal or nylon may be high-strength and durable: Swedish sports car manufacturer Koenigsegg uses sintered metal turbochargers in its ‘supercar’ engines. However, the printing is slow and expensive and suitable only for short runs (Koenigsegg manufactures each of its car designs in very short runs—in some cases it makes just one or two cars).
Moreover, even industrial 3D printers successfully produce durable, high-quality shapes only in a single material and colour (although there are techniques to produce plaster and paper objects in colour). The vast majority of consumer products cannot be 3D printed at all, let alone economically, due to their complexity—even for an inexpensive object such as a ballpoint pen.
“The vast majority of consumer products cannot be 3D printed at all, let alone economically, due to their complexity—even for an inexpensive object such as a ballpoint pen.”
The range of designs online may give a misleading impression: very few are a commercial success. You can get a feel for the popularity of any results. Thingiverse shows how many likes a design has received, how many collections it has been added to and may include images of user’s ‘makes’. Shapeways includes a ‘first to try’ banner on designs that have never been ordered; it appears a lot.
Luxury brands, for example Chanel and Gucci, produce a small number of hits on Thingiverse but nothing that consumers are likely to actually want. Brand owners may nevertheless wish to take down infringements to demonstrate zero tolerance or to guard against the day that 3D-printed objects are a commercial threat. Indeed, some luxury brand results no longer appear on the site, possibly as the result of takedown campaigns.
Sci-fi loving, techie and male
Searches on Shapeways and Thingiverse suggest that particularly common brand references include Lego (1,404 results on Shapeways, 3,935 results on Thingiverse), Minecraft (1,041 and 959), and Warhammer (686 and 438). This is consistent with the current demographic of the early amateur adopters: predominantly male (a survey by Robo3D in 2014 reported that the owners of 3D printers were 96.3% male), technophile and often hobbyists or part of the ‘maker’ movement. This demographic has two effects.
First, the hobbyist audience accepts, or even welcomes, that the models they produce may require substantial hand finishing: trimming, sanding, priming, painting, etc. This means that IP owners in the front line are those producing gaming figurines, scale models and components for techie-maker interests such as drones.
Second, many of the brands invoked by this demographic have long-established ‘fan art’ traditions. While the owners of such brands welcomed the engagement of fans producing hand-crafted one-offs, they must now decide how to react to fan art that can be easily printed on demand and sold and shipped worldwide.
It may in practice be difficult to eliminate fan art infringements and the attempt may anger fans. The product line of Games Workshop (maker of Warhammer) includes miniature gaming pieces that are lovingly painted by their customers. In 2011, takedowns of related files on Thingiverse generated mixed reactions from the fans (some unprintable) and a number of models quickly reappeared on The Pirate Bay instead.
For some brands fan art satisfies consumer demand that the IP owners are unable to meet. While the majority of their customers may be content with mass-produced, genuine products, a small number of obsessive fans may want to accessorise their figurines with a particular hat, gun, dagger (you name it) that appeared in a specific episode of the tie-in cartoon, issue of the comic, etc.
The brand owners are, at least for now, not geared up to make suitable short-run items. Last year, Hasbro launched a collaboration with Shapeways called SuperFanArt: “A website that enables fans inspired by Hasbro brands to showcase their artwork and sell their 3D-printed designs on Shapeways. SuperFanArt grants the passionate and talented Hasbro brand fan base a licence to create exciting new art and product offerings, and Shapeways brings the products to life with 3D printing.”
Bespoke opportunities
Fan art reflects a wider trend of 3D-printing: the manufacture of bespoke products. The most promising consumer-facing businesses using 3D printing harness the value of customisation to overcome the aesthetic challenges and high unit cost of the technology. The prime example is Invisalign: its bespoke, transparent teeth aligners (manufactured using 3D-printed moulds) have reputedly been used by 2.4 million people. Brand owners should investigate the potential for bespoke products (or just bespoke product inserts, cases or accessories) for their ranges.
Beyond the takedown
If 3D printing begins to make real inroads into traditional product markets, then IP owners and law makers will need to think hard about how to address this.
3D printing is likely to be a mixed blessing in the fight against professional counterfeiting. 3D printers can be much smaller than conventional manufacturing equipment (such as injection moulding machines) and printing on demand, in theory at least, avoids the need to keep finished goods. On the one hand, these factors encourage local manufacturing, which in turn may mean counterfeiters are more exposed to enforcement in IP-friendly jurisdictions. On the other hand, even local counterfeiters will be harder to find and prosecute if they can pick up their equipment and run and hold no incriminating stock.
If domestic 3D printing of consumer-quality goods becomes a reality, the current exceptions to IP infringement may need to be redrawn. For example, non-commercial acts are not generally actionable in the UK as passing off or patent or trademark infringement. The equipment and supplies manufacturers are likely to avoid liability by analogy with past decisions on video recorders and tape-to-tape recorders (eg, CBS Songs v Amstrad Consumer Electronics, House of Lords, 1988). The status of the online files will also need to be resolved: could, or should, these files be a form of copyright infringement, means essential for patent infringement, or infringing materials for trademark infringement?
The experiences of the music and film industries suggest that, should online sharing and printing of 3D products become commonplace, enforcement attempts may give way to new business models. We may one day see the Netflix equivalent for objects, offering subscriptions to stream a range of products for printing on demand in the comfort of your own home.
Matt Hervey is principal associate at Wragge Lawrence Graham & Co. He can be contacted at: matt.hervey@wragge-law.com
