4 september 2020

Additive Manufacturing and its impact on society and IP

Additive Manufacturing (AM), also known as 3D printing, is a manufacturing method in which products are created by adding material in a layer-by-layer-fashion. AM is generally considered to open up a whole new world of opportunities, while also raising a whole new world of questions, such as how to deal with this development in the field of Intellectual Property (IP).

In this article, we will discuss several topics. We start off by discussing the development of AM and its differences with conventional manufacturing. Subsequently, we go into the opportunities that AM provides over conventional manufacturing. Finally, we discuss how AM is expected to change the IP landscape.

Development of AM
AM was invented and developed by Mr. Charles W. Hull in 1983, who used epoxy resin in thin laminated layers, one on top of the other, and etched their shape with ultraviolet light. Most modern 3D printers still rely on this general principle, which was laid down in his original US patent: US 4,575,330.

Nowadays, AM is applied in many fields, with starting materials ranging from ceramics to metals and even to organic materials such as cells. Further materials are expected as yet to come.

AM compared to conventional manufacturing
As clearly expressed by the name “Additive Manufacturing”, products are manufactured by adding material. This is very different from traditional machining that often encompasses “Subtractive Manufacturing”. This means that material is taken away from an initially larger block of material, e.g. by turning or milling. Relative to such subtractive manufacturing methods, AM provides the advantage that the input of materials is limited to what is really needed for building the product. Thus, contrary to conventional subtractive manufacturing, there is virtually no waste material.

Also, for products produced using AM, the need for post-processing is typically much less. With AM, post-processing is often restricted to processes for removing loose or adhered printing material, or for example performing a finishing heat treatment of a 3D printed metal product.

Significant advantages are also obtained compared to injection molding, which is another conventional manufacturing technique that does not fall within the above classification of “Subtractive Manufacturing”. This particularly relates to manufacturing complex shapes that would not be releasable from a mold.   

Opportunities provided by AM
As becomes clear from the comparison with traditional manufacturing techniques, AM is very different. AM may – in many aspects – be regarded as a real game changer by providing new ways of manufacturing.

In the first place, consumers can become producers when they have access to a 3D printer. And it is noted that, due to developments in 3D printing technology, 3D printers are becoming better and more affordable over time. Secondly, AM opens up a new era that allows tailor-made products to be manufactured anywhere in the world. Initially, AM was mainly used for quickly realizing prototypes or rapid prototyping. However, with the quality of 3D printed products having improved significantly over time, it is now possible to use AM technology to manufacture high quality final products at virtually any place. By manufacturing on-site, spare parts may be made in remote areas to reduce transportation costs and time. For example, the French armed forces have been employing AM to produce spare parts for far-off bases in regions such as Mali. Manufacturing may possibly even take place in space. Structures built in space can be designed for their specific use, and need not necessarily be capable of withstanding gravity or the G-forces experienced during launch; consequently, they can be built extremely lightweight.

AM is currently not able to achieve the speed and costs for high volume production characteristic for mass production with traditional machining. However, AM might replace traditional manufacturing in some areas, especially for small series of highly complex products, or on remote locations.

Closely related to the revolution in manufacturing, AM is also expected to become a key driver in revolutionizing the value chain. For example, local manufacturing may drastically reduce shipping delays and shipping costs. Besides these obvious advantages in view of sustainability, local manufacturing is also less vulnerable than current supply chains. The vulnerability thereof is clearly demonstrated during the COVID-19 pandemic with its associated lockdowns of whole nations and its important producing regions.

Production can also become more flexible. On the one hand, instead of keeping large amounts of parts in stock, products, such as spare parts, may be printed on-demand at a local site. On the other hand, producers are enabled to swiftly react to market demand, and even produce tailor made personalized products, now making relatively small markets also commercially interesting enough to serve.

It becomes apparent from the above discussion that AM has huge potential, which is also recognized by many industries and companies around the world.

AM, due to its inherent flexibility with regard to manufacturing location and its low up-front investment costs, also provide challenges to IP protection. The European Patent Office (EPO) performed a study investigating current trends and emerging leaders in AM technologies. This study showed fast growing numbers on patent filings, especially since 2015. European patent filings in this technical domain showed a growth that was more than ten times faster than the average growth of patent filings at the EPO.

Technical areas that are most active in this field of technology are health, energy and transportation, but a growing number of European patent applications is also seen in areas such as industrial tooling, electronics, construction and consumer goods. Especially in the latter field much more growth is expected in the future.

The study also showed that twenty-five companies accounted for about 30% of all European patent applications related to AM filed between 2000 and 2018. Looking at the geographic distribution, Europe and the United States account for 47% and 35%, respectively, of all AM related European patent applications filed since 2010. Inside Europe, Germany is the biggest player by far, which is also linked to five of the top European applicants in this field being German companies: Siemens, BASF, MTU Aero Engines, Evonik and EOS.

In the Netherlands, DSM is one of the biggest applicants, as a whole accounting for 4% of the AM related European patent applications filed in 2010-2018. Furthermore, the study revealed that about 22% of the applications are filed by relatively small companies of up to 1.000 employees.

The influence of AM on Intellectual Property (IP)
Based on these numbers, AM may also be regarded a real game changer from the perspective of Intellectual Property. On the one hand, it provides many opportunities by being a driver for new inventions in the field of AM. This also stimulates innovations in other technical fields by enabling new products and designs that may only be manufactured using AM. On the other hand, AM poses many challenges, especially in view of potential infringement and enforcement of IP rights, since it becomes easier for a party to infringe IP rights.

First of all, in order to manufacture a copy, a potential infringer only needs a 3D printer and a digital file with the printing instructions to use the 3D printer to print the product. A new era of digital transformation, also known as the fourth industrial revolution, previously turned the entertainment industry upside down, and is now reaching the manufacturing industry by means of AM. There are evident parallels between a digital file containing music or a movie being copied and the potential copying of 3D printing files. Moreover, even if a 3D printing file is not available, existing products may be reverse engineered into printing instructions, e.g. by making a 3D scan of such products, or alternatively by reproducing a 3D file by drawing the design.

Secondly, due to 3D printers being readily accessible at (rapidly) decreasing costs, a proprietor of an IP right may be confronted with many individual infringers. In the past, it was relatively difficult to infringe a patent, requiring e.g. investing in expensive molds or special tooling or skills. Due to the fact that 3D printers are becoming more affordable and capable of manufacturing high quality products, this changes dramatically with AM. And, unfortunately for IP-holders, enforcing IP rights against many individual small players is significantly more challenging than addressing one big factory that produces infringing products.

Thirdly, some IP laws, those in relation to patents and designs in particular, allow copies to be made for private use. Selling such AM manufactured products is not allowed under these laws, but buying one product and making a few spare products would in theory be allowable under current practice. Dependent on the scope of the claims in a patent, it may be defendable that a commercial 3D printing service is infringing, even if it prints a 3D file of a consumer for private use by said consumer, but the law is still catching up with these types of developments.

Furthermore, AM is an emerging technology that evolves very fast. Extreme changes have occurred in the last 15 years, while a maximum lifetime of a patent is 20 years and examination up to grant may easily take four years or more. Currently, there are many patents in force that were drafted well before AM was considered a viable manufacturing method, possibly leaving loopholes in the scope of protection. The optimal way of drafting claims for future patent applications still has to be determined based on jurisprudence.

Thus, with the fourth industrial revolution currently reaching the manufacturing industry, a whole new discussion on IP rights will have to be held. After all, in relation to movies, music and games, only copyright has extensively been discussed. Digitalization of the manufacturing industry does not only involve copyright. It also involves patents and designs, which have in the past generally not been part of similar discussions.

Patent and design rights are however expected to be the most important rights for protecting innovations in AM as well as defending against potential infringement using AM to manufacture counterfeit products. Especially the combination of these rights is expected to provide more effective protection in the future to mitigate (some of) the negative side effects of AM.

By using a combination of patent and design rights it is possible to protect the working principle of a product using patents and simultaneously guard against low-cost AM-manufactured reproductions using design rights. Design rights for a new appearance of a product may thus protect against copies that are reverse engineered such as by using a 3D scanner.

The real challenge for the legislators will be to find a right balance between protection of innovations and accessibility to use of the great opportunities Additive Manufacturing has to offer.

Dedicated experts at Arnold & Siedsma are monitoring the developments in Additive Manufacturing and are available to discuss opportunities and challenges for your personal business.

Highly recommended reading material on the implications of the development of AM on Intellectual Property is formed by this report released by the European Commission.