Co-authors: Oliver Talhoff and Laura Adriana Grinschgl
Additive manufacturing, also known as three–dimensional (3D) printing, is transforming traditional manufacturing companies, revolutionising the way products are made and is poised to have a ground-breaking impact on many industries and economies.
The basic processes for 3D printing were first patented in the 1980s and since then have been used by engineers and for industrial applications, in particular rapid prototyping. But recent advances mean companies can use the technology for serial production, not just prototypes. And manufacturers can create complex designs and parts through additive manufacturing processes; it is particularly useful in the production of medical devices and industrial machinery, and in the automotive, aerospace and consumer product industries.
The value of hardware and software products and additive manufacturing services is still relatively modest (around $7.3bn global revenue in 2017). However, recent impressive growth is expected to continue: analysts expect annual turnover to top $15bn by 2019 and $26.5bn by 2021.
How does it work?
While numerous different additive manufacturing processes and techniques have their own specific benefits and disadvantages, the general process of additive manufacturing is simple: 3D printing builds up, layer by layer, a three-dimensional object of virtually any shape from a digital file. A three-dimensional digital design file is created either by scanning an existing object or by using computer-aided design (CAD) software.
A transformative technology?
3D printing is part of a more general digital transformation process of industry – known as Industry 4.0 or the Industrial Internet of Things – which is expected to fundamentally change the production methods in manufacturing. The ‘smart factory’ will make manufacturing leaner and faster, and provide data on components and products in real time.
Digitisation and 3D printing is making manufacturing more specific – customisation in the context of mass production is becoming technologically possible and economically feasible. 3D printing can dramatically reduce the need for assembly: instead of producing various components separately and then assembling them, additive manufacturing can ‘print’ a complex complete object at once. 3D printing might also change the way supply chains work: it might prove to be more feasible to ‘ship’ data and print parts on site rather than deliver large physical objects over long distances.
In the past, 3D printers have mostly been used to make objects from plastic. The resulting limitations of printed plastic objects (mechanical properties and temperature stability) mean they have been mainly used for illustrative purposes (eg rapid prototyping). Now the technology is progressing from rapid prototyping to advanced (serial) manufacturing, including the production of sustainable and functional components with defined mechanical and thermal properties, made from all kinds of materials, such as metal,ceramics, glass or concrete.
Though 3D printing will probably not become the primary choice for manufacturing in the near future (in particular in mass production), it will play an increasingly important role, especially if it is used in combination with traditional manufacturing methods. For instance, 3D printing might be the right choice for frequently redesigned products – this can be simply accomplished by altering a CAD file without the need to produce new tools. Such designs can easily be adjusted to fit specific needs so 3D printing might become the preferred method in the medical device industry, for example for the production of customised prostheses. As products are built layer by layer, additive manufacturing also allows for the production of much more complex designs than traditional manufacturing methods.
Who is getting involved?
In August 2017, HP – the global 3D printing leader – announced an alliance with Deloitte to accelerate the digital transformation of the global manufacturing industry. The aim is to implement HP’s 3D printing systems in large-scale manufacturing environments to enhance efficiency across the manufacturing lifecycle.
Siemens, which uses the additive manufacturing technology of selective laser melting (SLM) for rapid repair of gas turbine components, is developing the additive manufacturing software module that will be integrated in HP’s multi-jet fusion 3D printer.
The automotive industry is a major focus for developers of new 3D printing techniques. Local Motors, a US-based low-volume manufacturer of open-source motor vehicle designs using multiple ‘microfactories’, can apparently print an entire car in only 44 hours. Porsche prints spare parts for its vintage cars and Honda has used 3D printing to create a single-seater electric car.
German railway company Deutsche Bahn has already tested 3D printing production for more than 500 different parts made from various materials; a number of these parts are already in normal use.
Parts produced through additive manufacturing methods can be 25–55 per cent lighter than those manufactured traditionally so 3D printing is particularly attractive for the aircraft industry. Airbus has initiated a variety of additive manufacturing projects.
Last but not least, 3D printing is also popular in the start-up scene. A recent example is 3yourmind, which is developing software that will more precisely calculate the relative time and cost of additive manufacturing versus traditional methods. Siemens and Porsche are already taking advantage of the software – which according to 3yourmind’s CEO, Alexander Ciszek, may soon become industry standard and enable businesses to make more informed decisions on whether additive manufacturing techniques make commercial sense.
Additive manufacturing technology affects practically all areas of intellectual property law, including patent, copyright, trademark and design laws. Moreover, 3D printing technology creates new challenges for the protection of trade secrets. It also has implications for the allocation of liabilities among the parties involved in the new production environment. The large-scale adoption of 3D printing may be accompanied by a significant increase in disputes around the technology.
An increase in attempts to obtain patent protection in connection with 3D printing technology means the patent space in this area has become very crowded, likely an indication that additive manufacturing is overtaking traditional manufacturing processes.
Not only 3D printers themselves but also certain mechanical parts for computing and manufacturing might be subject to patent protection. Of course, software used for 3D printing (like all software) enjoys copyright protection in most jurisdictions. But software can also be eligible for patent protection in some countries (such as the US).
Thus, new entrants must be careful not to infringe others’ patent rights. When trying to safeguard their own additive manufacturing's critical IP, businesses should analyse their options under patent law and consider securing IP through trade secret protection, copyright and design laws.
Knowhow and data
Additive manufacturing embedded in a digitally connected factory space involves a lot of information and data processing and transmission between the parties involved. Much of this information will be of great value and will, therefore, be increasingly exposed to theft and misappropriation.
Confidential information, data and any know-how related to additive manufacturing (including on the formulation of materials) can be protected under trade secrets laws, some of it under copyright laws (including database protection). However, businesses must make sure that such information, data and know-how stays secret to be eligible for such legal protection. The protection of know-how will be particularly challenging if the know-how is made available to third parties (for instance to allow for the production of spare parts on site). This requires a number of organisational (policies, employee training), technical (IT security, access controls) and contractual (NDAs) measures, which must be tailored to the additive manufacturing set-up.
Businesses venturing into the 3D printing market should check whether their current trademarks offer protection. Typically, this will not be expressly the case. Existing goods and services protections relating to conventional manufacturing processes may be broad enough to provide for some protection for additive manufacturing, but it is advisable to consider whether additional trademark protection is required, especially as the specifications of the goods and services under the Nice classification must be sufficiently “clear and precise”.
Though 3D printing-related trademarks are hard to obtain (and consequently relatively rare), businesses engaging in 3D printing (or the distribution of CAD-files) should also try to ascertain that their products do not infringe third-party trademarks.
Allocation of liabilities (product safety and product liability)
Let’s consider an example: an auto parts manufacturer makes CAD files available to auto parts stores in order for them to 3D print spare parts on site and sell them directly to customers. If these parts cause a defect in a car or a car accident, who is liable? Depending on the facts of the situation the customer may have recourse against the parts manufacturer, the auto parts store or even against the manufacturer of the 3D printer.
Additive manufacturing in digitally connected environments involves a number of players: providers of CAD-files, printing suppliers, suppliers of raw and finished materials, the actual entity manufacturing and assembling the end product, and other service providers adding to the manufacturing process.
Who is responsible when things go wrong? Who will be responsible under applicable product liability laws? Historically, the liability for faulty products was directed towards the producer or manufacturer of the defective product, as it is largely still the case today for product liability and product safety issues. However, with products becoming interconnected – especially through interdependencies between hardware, software, networks and data – existing liability regimes struggle to ensure a clear and fair allocation of liabilities.
As other IIoT manufacturing techniques, additive manufacturing calls for sophisticated contractual prerequisites. Businesses are well advised to carefully adjust the risk and liability allocation in their contracts with manufacturers, suppliers, customers and service providers involved in the manufacturing processes. Contracts and product information sheets should contain a clear definition of what the intended uses and foreseeable risks of a product are, and try to limit liability where possible. This will include the negotiation of indemnities for losses caused by defects attributable to the materials, printing machines or design blueprints and possibly an obligation to provide for respective liability insurance coverage.
Aside from such contractual remedies, stakeholders should also implement practical preventive measures, such as embedding sensors in the product which can check the product’s quality, monitor and alert incorrect product use, and/or track the product’s repair history.
Additive manufacturing has the potential to become a new key technology in many industrial manufacturing sectors. The use of new technologies embedded in a digital manufacturing environment will add complexity and bring new legal challenges for businesses involved in additive manufacturing: an increased awareness and coherent strategy will be required to adequately address issues like the protection of intellectual property rights, know-how, trade secrets and data, as well as increasing liability risks. Businesses are advised to put in place a specific, tailored set of contractual and technical measures.
--- ENDS ---
 Leupold/Glossner, 3 D Printing, 2017, p. 53 et seq.
 f.i. Digital Light Processing, Multi-Jet, Selective Laser Melting, Power Bed Fusion or Laminated Object Modelling
 Generally speaking, there are two established methods of forming metallic objects with the help of metal power and laser beams: Selective Laser melting (SLM) and Laser direct Metal Deposition (LMD).
 In 2016, MIT's Computer Science and Artificial Intelligence Laboratory has developed a 3D printing technique to print both solid and liquid materials.
 Leupold/Glossner, 3 D Printing, 2017, p. 34 et seq.
 M Brüggmann, ‘Wie ein polnischer Start-up-Unternehmer Marktführer für 3D-Druck-Software werden will’ (2018) Handelsblatt, p. 60.