In this article, an insight is given into the work of the technical committee 105.5 (FA 105.5) named ‘Legal Aspects of Additive Manufacturing’, which was formed within The Association of German Engineers (Verein Deutscher Ingenieure or ‘VDI’) in 2016. This technical committee is comprised of legal experts, engineers, technicians, scientists and company managers working in the sector of advanced manufacturing. Jointly, they analyse technical challenges as well as processes in the value chain of additive manufacturing regarding legal implications that accompany production. This is the third and final part of this article. Read part one here, and part two here.
By Klaus M. Brisch, LL.M. and Marco Müller-ter Jung, LL.M., DWF Germany
Legal Issues of Discussions in the Technical Committee 105.5
The above-mentioned issues from discussions are accompanied by complex legal issues.
One key issue to address is the protection of intellectual property which should be considered from different angles: On the one hand, one must consider how patents, design or copyright for products can effectively be ensured and enforced, especially if certain constructions can be copied with relatively little effort and technical know-how by using 3D scanning and 3D printing and if a variety of CAD files containing technical construction data are online available. In this context, the above-mentioned technical-legal discussions, such as components marking etc., become particularly important.
On the other hand, one must consider if and to what extent the technical construction of data/CAD files are legally protected. Since the final product, in this case the CAD data, is available in digital and machine-readable form, the data needs to be protected technically and legally. However, the question that still needs to be discussed by the above-mentioned technical committee is: what component of the construction is worth protecting and what component is it even possible to protect? From a legal point of view, it is therefore important to clarify if a CAD file, for example, is derived from another already existing construction file being protected by patent, design or copyright and is amended in order to integrate new functions into the component for the additive manufacturing process. If this is the case, then an already protected design is being used whose existing rights are infringed by amending it. Alternatively, the technical amendments of the conventionally manufactured component (e.g. the integration of particular functions) could lead to a design that is considered “new” and thus can be protected. Consequently, this design would claim relevant rights which need to be considered in the course of the process chain and, if necessary, need to be licensed in order to avoid any gaps in rights.
In this context, the technical and legal experts of the technical committee also discuss the business models of different parties working together as is common when manufacturing products. It is important to establish early which party might claim (property) rights due to its performances and contributions; therefore, it necessary to examine the additive-manufactured component and its various rights owned by the various parties in order to avoid any license gaps for the consumer of the end product.
Some of the technical issues of discussion lead to a further special legal challenge: How and to what extent the computer-readable data rights of specific contributors to the value chain exist? Substantial economic value is attributed to this (technical) data and also to measured and analytical results, setting and manufacturing parameters, especially when connecting all data sets and assessing them by a software-based system (“Big Data”). The right handling and controlling of additive manufacturing processes is usually highly complex which means that the aforementioned data comprise substantial expertise in processes. Thus, all parties involved have a vested interest in exclusive use of the technical or machine-generated data produced during the process. However, German law does not deal with property rights to data in the same way as property rights to tangible property. Thus, for lawyers, it is a unique challenge to find legal solutions in order to protect the data based on a deep knowledge of the technical processes and data generated within the processes.
Finally, it is important to legally examine the implications of the described conversion of data sets in the context of the value chain. For lawyers, this is where a variety of questions arise: How can one be assured that there is no loss of quality when the data is converted? How is this documented? How can the authenticity, integrity, availability and confidentiality of the data be ensured? What are the requirements of data quality and IT security?
The explanations above show that comprehensive exchange between legal experts, engineers and further technical experts on the field of additive manufacturing processes is essential in order to gain a common knowledge of the relevant issues. The considerable potentials of additive manufacturing and its resulting new business models can only be successful if technicians understand the legal implications when they start to develop a product whereas and if lawyers maintain a deep insight into the technical processes of additive manufacturing, especially when considering the almost completely digitalised value chain.