tHepandeMiCparadoX:3dprintingoFppeaMidCovid-19
Intellectual property Section
Chairs:ElanaFaniel-GreenwayLawFirm,P.A.&PatrickReid-Burr&FormanLLP
thereputationaldamagefrom
denyingproductionof
life-savingppecancripple
andendangera
patentholder’sexistence.
The dire need for
medical supplies
amid the COVID-19
pandemic has caused
shortages of Personal Protective
Equipment (PPE), such as N95
masks and face shields, to protect
front-line workers. The outcry
around the world about the lack
of PPE has exposed major issues
in the global supply chain of
critical health-related products.
This crisis has compelled
individuals, small businesses, and
large corporations alike to seek
innovative solutions, like 3D
printing of PPE, to meet the
medical supply gap.
3D printing, or additive
manufacturing, is a process of
making three-dimensional solid
objects from a digital file. 1 The
physical object is printed based
on a digital model, typically a
computer-aided design (CAD) file. 2
CAD files can be created by
scanning an object, designing the
file yourself, or downloaded online.
While 3D printing PPE seems
to be the right thing to do right
now, particularly when the need
for it is not otherwise being met,
individuals and companies run the
risk of being exposed to patent
infringement liability.
An individual or company can
be liable for direct or indirect
infringement. 3 Direct infringement
could arise when the operator of a
3D printer creates the physical
form of the patented product. 4
Indirect infringement, on the
other hand, can be classified
into induced and contributory
infringement. 5 Induced
infringement can occur when an
individual or company knowingly
causes another to 3D print a
patented product, whereas
contributory infringement can
occur when an individual or
company knowingly provides or
sells a component of a patented
product. 6 In the context of 3D
printing PPE, a supplier of the
CAD file of a patented product
to a 3D operator could arguably
be liable for indirect infringement,
especially when the supplier
derived a benefit from selling the
digital file. However, identifying
potential infringers can be difficult,
if not impossible, in the widespread
adoption and facilitation of
peer-to-peer file sharing.
Larger companies seeking to
3D print PPE may have the ability
to conduct traditional patent due
diligence, but the greatest liability
exposure could be to individuals
and small businesses that may not
have the resources to conduct such
investigation. For example, this can
be especially true in instances
where a small business with 3D
printing capabilities is simply trying
to fulfill a local hospital’s immediate
need for PPE.
This is counter-balanced against
the patent holder’s rights and can
put them in a tough position.
In the court of public opinion,
the reputational damage from
denying production of life-saving
PPE and seeking redress for the
infringement can cripple and even
endanger, the patent holder’s
existence. In such instance, how
does a patent holder’s interest
in protecting their product and
making money
weigh against
the need for
life-saving
PPE? n
1
3D Printing:
Overview,
Practical Law
Practice Note
Overview
w-001-9223.
2
Id.
3
Id., citing 35
U.S.C. § 271.
4
Id.
5
Id.
6
Id.
Authors:
Iva Todorova,
Marisol Ruiz,
and Stephen
Shaw -
McIntyre
Thanasides,
P.A.
4 2 S E P T - O C T 2 0 2 0 | H C B A L A W Y E R