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This is a concrete technological revolution, that opens a vast universe of innovative and unimaginable uses and applications, with multiple and actual benefits.  But, also, it installs a profound debate about potential violations to  intellectual rights and use of trademarks.  It is a new legal challenge that could give rise new laws, cases with characteristics never dealt with before and a huge economic and financial general consequence for those aggrieved as well as all the parties involved.

 

3d printers: a “Third industrial revolution”? and a new legal challenge.

• 02 September, 2014
• Gustavo A. A. Sena

 

Parts of airplanes and all kinds of spare parts have been made with it, and its use in medicine is each time more extensive: vascular surgery, cartilages, prosthetics and orthopedic accessories, and they have even recreated “the” actual ear of Van Gogh with cells of a descendant of the acclaimed artist. Exhibitions of art, buildings and houses and several designers have created fashion collections of shoes, accessories and hats, musical instruments and even real food with 3D printers. And even the NASA sent one to space in order to test the printing of bolts, springs and additional tools for scientific experiments at the space-base. They are here to stay and we will have to get used to the new rules.

They introduced themselves to the whole world and the extent of uses for these devices are yet to be discovered. Thus, another new legal debate is created with respect to the intellectual rights over the original version of whatever is afterward duplicated without authorization, economic margins and violations to trademarks and patents rights, which could open infinite conflicts and cases that will set precedent in this new era of technological innovations.

3D printers render multiple possibilities because it is a tool with a wide scope of utility due it its practicality, functionality, low costs and adaptability to any sphere. These printers allow copying from an everyday object to sophisticated elements of design in any industry. Elementarily, these equipments are capable of creating objects with volume.
It is unquestionable that they will render significant changes to societies costumes worldwide, backbone modifications to ways and styles of lives in may everyday activities. The use of 3D printers is expanding at the speed of a formula 1 car and the multiplication of new models, with diverse technologies and printing elements, are new every day. But what about the Law?
The environmental issue
The first printers, which date back 30 years ago, generated small objects or figures, worked with two types of plastic that melt with heat: the PLA, where its filaments issued 20 thousand million ultra-thin particles per minute; and those that used ABS filaments (the majority of them), that issued up to 200 thousand million of particles per minute.
Recently, a new design method of printing steel joints was introduced, that promises to reduce the time and costs required for the construction sector. There are equipments that use an acrylic resin that solidifies with a laser, others that work with rigid plastic, rubber and plastic of low viscosity. There are also projects that comprise the printing being made with waxes and other biodegradable materials. There are, in fact, some prototypes that use plastic recycled from bottles.
Perhaps, we should also contemplate that the implications of the use of these equipments might have some dark spots. For instance, printing with ABS plastic, these particles can deposit on the lungs or bloodstream and might jeopardize the health. Furthermore, when the plastic is melted with heat or lasers, the 3D printers consume a lot of electric energy, about 50 to 100 times the electric energy used by the traditional ink-jet model used to make an item of the same weight. For example, it is calculated that it requires more than an hour of operation to create a design of a few centimeters.
It should also be taken into account that the current models of 3D printers (that in our country may be purchased at a price of about 20,000 to 30,000 Pesos) are, in their majority, very big equipments, thus, they would take a lot of space and its transportation can be quite complicated.
The legal conflict: the right of the owner vs full individual freedom
This issue comprises several angles, since the cons or potential problems that are coming in relation with manufacturing companies and selling stores are not being taken into account. Neither are other implications being considered such as those that could bring the transportation and customs control, in the ecology and, overall, the increase in trademark and patents piracy with the unstoppable reproduction of all kinds of articles, of which millions of people could make copies, exchange, buy and sell daily.
It is undeniable that 3D printers open a world of possibilities, as well as the doors to a black market of illegal products. Creativity is always there in a cataract of ideas and inventions that seem have no boundaries, moreover with the help of these equipments. But, have you considered, for example, to cite one specific field, the fashion designers, whose designs the users could recreate in house without having to purchase them? This picture is quite similar to the manner in which Internet challenged the copyrights in the film and music industries, commercial trademarks and illegal downloads.

Let's think of a work hypothesis where there are 200.000 3D printers in homes. If 30,000 pairs of shoes similar to the best trademark in each country or 100,000 National teem football t-shirts; volumes of pencils or cups, or shirts, and if this were done with a trademark that could be easily reproduced, the losses would be highly significant for the owners of such rights. The same thing would happen with a product that were protected by a patent and could be 3D printed. Clearly, there is a protocol that should be followed and laws to apply, but the easiness is so high that enforcing the legitimacy of the rights will be a path difficult to follow; and the manufacturers will multiply by thousands worldwide.

Add to the above the existence of 3D scanners. I would take an object, scan, and print it. I would be that easy.

One of the most resonating current cases is that one of the Mink printer, the 3D printer that is revolutionizing the cosmetics. Introduced this year by Grace Choi, a 30 years old graduated from the Harvard Business School, this 3D printer for personal use can reproduce cosmetics at home choosing the exact shade of color you wish, according to each consumer's taste and preference. With this innovation, many tremble because it is jeopardizing an industry valuated in 55 thousand million dollar. Imagine for a moment what could mean for any woman to create in a couple of minutes a palette of eyeshadows, eyeliners, lipsticks, blushes, etc. in any shade, coordinating them so that they combine with a certain item of clothing they have just purchase, for instance, instead of having to buy each shade to the manufacturer, such as it is done today. The mind flies with this scenario, as well as the possible consequences.

An apocryphal copy, a real danger

Each advance of science gives rise to debates, discussions about interests of the most varied fields. It is clear that we must continue advancing, but taking certain precautions that would care for the welfare of the majority of the members of a society. In this respect, it is known that a while ago the first 3D weapon was printed, with the implications that this brought. Besides, as it was already stated, you can print spare parts of machines or cars, toys and other products that could endanger the life of the people by themselves or because they were defectively manufactured.

The Industrial Property laws should not be modified as to what can be considered a trademark or which invention may be protected by a patent because the 3D printers have burst in, but they should be modified with respect to the mechanisms of defense, the pursuing of infringements and the penalties for counterfeiting. We will have to adapt swiftly to these changes.

Currently, the issue of the 3D printers is the basis of analysis by the main international Associations related to the industrial property. Thus, AIPPI (Association Internationale pour la Protection de la Propriété Intellectuelle) shall deal with this topic in the next Congress to be held in Toronto in September. INTA (International Trademark Association) has internal committees, such as the Anti-counterfeiting committee, analyzing the subject and also local associations, such as AAAPI (Asociación Argentina de Agentes de la Propiedad Industrial) shall deal with the issue in the next Congress.

Human mind never rests, it is always creating and moving forward. It does it faster than it takes the law to adapt itself to the new reality we face, which -without exaggerating- places us at the doors of a 3rd Industrial Revolution. It is necessary to evaluate, as soon as possible, the impact of these devices in the different areas of the law involved and to pass laws required to maintain the balance between the huge technological advance and the rights of the society as a whole and of each one of its members.

By Gustavo A.A. Sena, partner at Sena & Berton Moreno

SENA & BERTON MORENO was founded in 1937 by ALFREDO SENA and ERNESTO E. BERTON MORENO as a Patent and Trademarks Agency with a stable staff of only four people. Since then, the Firm has grown to reach its current size of forty people, working at our offices located only two blocks away from the Government House and at the heart of the commercial and financial district of the city. Ver más