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Protecting your 3D IP

Lachlan Cloak explores the rise in 3D printing and the challenges faced by designers in protecting their creative rights and intellectual property.

3D printing is shaking up the design and manufacturing based industries as there has been a rapid uptake of the technology across a broad range of industries as the technology improves and the cost of printing decreases. The technology first came to prominence in 2012 in America when the first 3D printed gun was made using plastic and the Computer Aided Design (CAD) file for the weapon was posted online for free download.

In addition to concerns about security this type of technology raises, recent technological developments have significant legal implications including the potential for people to easily infringe intellectual property laws by using the technology to produce counterfeit goods at home.

How does 3D printing work?

3D printers work by layering cross sections of a design to build up a 3D object. Designs for 3D printing are commonly made in two ways; they can be generated using 3D modelling software like CAD or by scanning a physical object using 3D scanner. Once the model is generated, the printer is provided with instructions on how to create the object, layer by layer, using an extruder, chemical agent or a laser. Different types of plastic are the most common materials used by 3D printers, applied through a nozzle similar to an ink-jet printer. There are also printers that work with metal and even ceramic.

What can be made using a 3D printer?

The range of objects capable of being 3D printing is seemingly limitless. The most common types of items that may currently be made using 3D printing include:

  1. Medical instruments and prosthetics
  2. Engine parts
  3. Musical instructions
  4. Clothing
  5. Food
  6. Architectural models
  7. Prototypes for industrial design.

Recent advances in 3D printing technology include the ability to print using biocompatible materials and cells to create functional living tissues. This has the potential to address organ and tissue transplants shortages worldwide.

Another example of the usefulness of the technology is the development of 3D printed robotic prosthetic limb prototypes which may lead to prosthetic limbs being made available to consumers for much cheaper than they are currently available.

Keeping up with the technology

The development in 3D printing technology has enlivened similar ‘piracy’ concerns to other online infringements including the illegal downloading of movies, tv shows and music. As a result, people have been scrambling to protect their works. Below is a list of options for protecting intellectual property of 3D printing designs in Australia.

Trademarks

A shape trademark can be registered if the product is distinctive and the shape of the product is functional. There has been a significant increase in applications for shape trademarks with the increase in 3D printing and the testing of the grounds of what is and is not a “functional” shape. A significant benefit registering a shape trademark is that once it is registered, it can be renewed indefinitely.

Examples of registrations for shape trademarks including Weber Barbeque and Hermes Bags.

Design Law

Designers and manufacturers may consider registering their 3D design projects under the Designs Act 2003 (Design Act). Registration of a design application is relatively straightforward and the registration is valid for 10 years. The test applied when registering the design is whether the design is “novel and distinctive” when compared with pre-existing designs which have been used or published in Australia or abroad.

Designs which are “substantially similar in overall impression” and imitations are in breach of the Design Act. The downside with registering under the Design Act is that minor alterations to the design may be sufficient to avoid infringement.

Patents

A patent is a right that is granted for any device that is new, inventive and useful. In Australia, standard patents have a 20 year duration and give the patent owner exclusive rights to commercially exploit the patent for the duration of its registration. Innovation patents have an 8 year duration and are more simple inventions or developments.

Patents can be obtained for products where they are found to be novel or inventive. An example of 3D designs which can be registered as patents include everyday objects such as kitchen gadgets.

Copyright

In some circumstances, original 3D print designs will be protected by copyright as “artistic works”. If copyright is obtained, it is the exclusive right of the copyright owner to reproduce the work in material firm, publish the work and communicate the work to the public.

There is only limited protection provided by copyright in Australia in relation to 3D designs and it applies in cases where it is a “work of artistic craftsmanship”. An example of this may be one-off jewellery items, fashion and clothing accessories.

Generally, the more functional the design the less likely copyright protection is provided. Further to this, the Copyright Act 1968 expressly denies protection to corresponding designs of which more than 50 articles of the design have been produced.

Takeaways

There is no clear answer to the best way to protect your 3D designs with Australia’s current intellectual property laws. Often it will come down to the design of the product, what it is to be used for and the scale of production.

Generally, designers and manufacturers are likely to find the best protection under the Designs Act and some level of protection by registering their 3D design as a shape trademark or patent. Design and patent protection depends on timing of registration so we recommend registering the protections as soon as possible.

If you concerns about protecting your design or believe someone is infringing your work, contact Lachlan to discuss your rights. 03 8673 5522.

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