Additive Manufacturing: Impact on Society and IP

 In this article we will cover several topics. First we will discuss the development of Additive Manufacturing (AM) and the differences with conventional production methods. Then we will describe the possibilities that AM offers compared to conventional production methods. Finally, we will address the question of how AM is expected to change the IP landscape.

Development of AM

AM was invented and developed by Charles W. Hull in 1983. He used epoxy resin in thin stacked layers, one layer on top of the other, and etched its shape with ultraviolet light. Most modern 3D printers are still based on this general principle, which is described in Mr. Hull’s original US patent US4575330.

AM is used today in many fields, based on starting materials ranging from ceramics to metals and even organic materials such as cells. Other materials are expected to follow.

AM Compared to Conventional Production Methods

In additive manufacturing, as the name clearly indicates, products are made by adding material. This is a significant difference to traditional machining, which often involves machining techniques, where material is removed from an initially larger block of material, for example by turning or milling. Machining techniques can be characterised as “subtractive”, which is the counterpart of “additive”. Compared to conventional subtractive manufacturing methods, AM offers the advantage that the input of material is limited to approximately the amount required to build the product. For this reason, in contrast to conventional subtractive production, there is almost no waste material.

In addition, products produced with AM require less post-processing. Post-processing operations associated with AM are often limited to processes for removing loose or adhering print material, or, for example, heat treatment for finishing a 3D printed metal product.

There are also significant advantages over, for example, injection moulding, which is a conventional production method and also does not fall within the area of subtractive production methods mentioned above. For example, with AM it is possible to produce complex shapes that could not be released from an injection mould and therefore could not be manufactured by injection moulding.

Possibilities of AM

As is clear from the comparison with traditional production methods, AM is very different from them. AM can – in many ways – be considered a revolutionary development, as it enables new ways of production.

First of all, consumers who have access to a 3D printer can become producers. It should be noted that due to developments in 3D printer technology, 3D printers are becoming better and more affordable. AM also allows for customised products to be made anywhere in the world. Initially, AM was mainly used for rapid prototyping. With the increasing quality of 3D printed products, it is also possible to use AM technology to make high quality finished products in virtually any location. Spare parts can thus be manufactured on site in remote areas, with lower transport costs and in a limited time. The French armed forces, for example, have already used AM to produce spare parts for remote bases in regions such as Mali. Manufacturing through AM may even be possible in space. A structure made in space can be designed specifically for that particular use and built to be very lightweight. After all, it no longer needs to be able to withstand gravity, or the g-forces during a launch, if it is only produced in space.

AM is not yet able to compete with most traditional production techniques in terms of speed and cost, as required for mass production. However, AM could replace traditional production methods in some applications, especially for small series of very complex products, or in remote locations.

Closely related to the revolution it is triggering in manufacturing, AM is also expected to be a key factor in drastically changing the value chain. Local production can drastically reduce transport time and logistics costs. In addition to the obvious sustainability benefits, local production is also less vulnerable than current supply chains. This vulnerability was well illustrated during the COVID-19 pandemic with the associated lockdowns of entire countries and key production areas.

Production can also become more flexible. On the one hand, instead of keeping large quantities of parts in stock, products such as spare parts can be produced as needed and locally. On the other hand, producers can react quickly to market demands and changing needs, and can even produce customised personalised products, making relatively small markets commercially interesting.

It is clear from the foregoing review that AM has great potential. Many industries and companies worldwide are well aware of this.

However, due to its inherent flexibility in terms of production location and low initial investment, AM also poses challenges in terms of IP protection. The European Patent Office (EPO) has conducted a survey that examines current trends and emerging leaders in AM technology. This research shows a rapidly growing number of patent filings, particularly since 2015. The number of European patent applications in this field showed a growth that was more than 10 times higher than the average growth in applications at the EPO.

The most active technical fields are health, energy and transport, but also an increasing number of European patent applications can be seen in areas such as industrial tools, electronics, construction and consumer products. Especially in this last area, much more growth is expected in the future.

The study also showed that twenty-five companies are responsible for approximately 30% of the European patent applications filed between 2000 and 2018 in the field of AM. Looking at the geographical distribution, Europe and the United States account for 47% and 35% respectively of all AM-related European patent applications filed since 2010. Within Europe, Germany is by far the largest player, which also relates to the fact that five of the largest European applicants are German companies: Siemens, BASF, MTU Aero Engines, Evonik and EOS.

In the Netherlands, DSM is one of the largest applicants, accounting in total for around 4% of the AM-related European patent applications filed between 2010 and 2018. Furthermore, the study showed that around 22% of the applications were filed by relatively small companies with up to 1,000 employees.

The Impact of AM on Intellectual Property (IP)

Based on these data, AM can also be considered a revolutionary development from the point of view of Intellectual Property. On the one hand, as a driver of new inventions in the AM field, it offers many opportunities. It also stimulates innovations in other fields by making possible new products and designs that can only be made with AM. On the other hand, AM also leads to many challenges, especially in the area of potential infringement and enforcement of IP rights, as it becomes easier for a party to infringe an IP right.

First of all, a potential infringer only needs a 3D printer and a digital file with printing instructions in order to use the 3D printer to print the product. A new era of digital transformation, also known as the fourth industrial revolution, has previously rocked the entertainment industry, and is now reaching the manufacturing industry through AM. There are clear parallels between copying a file of music or a film and the possibility of copying files for 3D printing. Moreover, even when a 3D print file is not available, existing products can be developed and reconstructed into print instructions by reverse engineering. This can be done, for example, by making a 3D scan of such products, or by making a 3D file by copying the design.

Secondly, because 3D printers are freely available at (rapidly) decreasing costs, an IP right holder may be confronted with many individual infringers. In the past, it was relatively complicated to infringe a patent because, for example, investments in expensive moulds or special tools, or skills, were necessary. The fact that 3D printers are becoming more affordable and more capable of manufacturing high quality products makes this very different with AM. And enforcing IP rights against many individual small players is, unfortunately for IP rights holders, much more challenging than taking on one large company producing the infringing products.

Thirdly, some IP laws, particularly those relating to patents and designs, allow the making of copies for private use. Selling such AM-created products is not allowed under these laws, but buying one product and making a few spare copies would theoretically be allowed in current practice. Depending on the scope of the claims in a patent, it may be defensible for a commercial 3D printing service to infringe even if it prints a 3D file originating from a consumer and the printed product is intended for private use by that consumer, but the law is still catching up on such developments.

Furthermore, AM is an emerging technology, which is developing very rapidly. Major changes have taken place in the last 15 years, while a patent is valid for a maximum of 20 years, and the substantive examination until grant can easily take four years or more. Currently, there are many patents in force that were drafted well before AM was considered a viable production method, which may have created gaps in the scope of protection. The best way to draft claims for future patent applications still has to be determined on the basis of case law.

Because the fourth industrial revolution is currently reaching the manufacturing industry, it will be necessary to conduct a completely new discussion on IP rights. After all, with regard to films, music and games, only copyright has been discussed extensively. Digitisation of the manufacturing industry, however, does not only concern copyright. It also concerns patents and designs, which have generally not been part of such discussions in the past.

It is expected that patents and design rights will be important rights both for protecting AM innovations and for defending against potential infringement when AM is used to make counterfeit products. In particular, the combination of these rights is expected to provide more effective protection in the future to reduce (some of) the negative side effects of AM.

By using a combination of patent rights and design rights, it is possible to secure the working principle of a product with patents, and at the same time to protect oneself against cheap, AM-produced reproductions by means of design rights. Design rights for a new design of a product may possibly offer protection against copies that have been developed backwards by means of reverse engineering, for example with a 3D scanner.

The real challenge for legislators lies in finding the right balance between protection of innovations on the one hand, and access to use of the enormous potential offered by additive manufacturing on the other.

Arnold & Siedsma’s specialist experts closely monitor developments in the field of additive manufacturing and are available to discuss the opportunities and challenges for your own operations.

Highly recommended reading on the consequences of the development of AM on intellectual property is this report from the European Commission.