3D printing and IP in a pandemic

The covid-19 outbreak has seen numerous examples of the technology being used to manufacture much-needed equipment and, as Thomas Prock, Peter Roberts, Daniel Sizer and Matthew Jefferies from Marks & Clerk explain, IP owners can make a contribution while also protecting their rights in the longer term.

The coronavirus is an unprecedented challenge for businesses, governments, healthcare systems and, of course, individuals and families. As the world rushes to find solutions, everyone is being called upon to do their bit, whether that involves manufacturers developing ventilators, governments arranging fiscal stimuli or individuals looking out for neighbours.

In situations like this, 3D printing has a valuable role to play. By allowing for the quick, deskilled and decentralised manufacture of components and devices, the technology has the potential to rapidly increase the supply of vital medical equipment. There are numerous instances of manufacturers doing this. In the UK, for example, Vauxhall and Airbus are engaged in a ‘war time’ effort to rapidly manufacture medical equipment, while amateur 3D printers join the fray to provide much needed protective equipment.

This crisis highlights the many advantages of 3D printing. The technology allows the manufacture of new products with very short lead-times, given that all that is required is a 3D printer and a printable digital representation of the product. Delays usually associated with creating new manufacturing series, such as tooling calibration, do not have to be incurred when 3D printing.

Parties interested in printing products can, of course, set out to create the required digital blueprints from scratch, but doing so takes time and may risk inadvertent design flaws that have already been overcome by the original designer. Moreover, new designs will require regulatory approval whilst a reproduction of an existing design is likely to be available to patients much more quickly.

Technically the sharing of a digital printable file is easy – all that is required is a simple file transfer – but stories in which the owners of a digital printable file were unwilling to share the file in the first place based on legal concerns have been circulating. This is regrettable, given that IP right holders have so much more to offer than merely a file.

In particular, the know-how IP right holders have in ensuring that the manufactured products meet the desired quality and safety requirements could help immensely in rapidly meeting the increasingly dire need for medical products.

The seeming tension between ownership of IP rights and the rapid spread of protected products is not new. Similar concerns were raised in the cleantech field when it came to disseminating environmentally friendly technology to developing countries. One conclusion from that was that innovators are much more likely to share innovation with third parties in jurisdictions with a robust and sophisticated IP system. As such, strong IP is helpful in overcoming reluctance in sharing, given that it provides a level of control to ensure quality and safety and to ensure the goodwill of IP right holders cannot be abused after the crisis has abated.

So, how can companies protect their intellectual property in circumstances such as this, while also doing the right thing? Practically speaking, there are many ways to find a balance between protecting IP and serving the public good.

First and foremost, temporary and/or purpose-limited licences could be granted solely for the purpose of supplying clearly defined products to fight the current crisis. Any such licence should also clearly regulate product liability as well as what should happen with non-disposable products after the crisis. After all, it is hard to accept a situation where your own market is eroded for years to come, even if the reason for it was an initial immense spike in demand.  

As far as manufacturing using 3D printers is concerned, it is conceivable that, even though IP rights cover the finished product, the rights may not cover the digital printable file. As such, it is important to regulate, in any enforceable agreement, what the recipient of the digital printable file is allowed to do with it; in particular, the degree of further file sharing that is acceptable.

Another concern for IP owners is the potential of compulsory licensing, whereby a government might acquire IP rights without the owner’s consent, if it is believed that it is necessary to protect public health or wellbeing. This is an extreme measure but there are precedents for it happening, such as the recent case of IP Com v Vodafone. In cases such as this, it would be advantageous for IP rights holders to be proactive by licensing IP on their own terms before the decision is made for them by the government.

Extraordinary times call for extraordinary responses and thinking which goes beyond business as usual. Intellectual property is often a company’s most valuable asset and should be protected. As we have seen during the current crisis, however, there are creative ways in which continuing to protect IP can be successfully balanced with serving the public good.

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