4D printing: how to protect space-age tech

4D printing adds a new dimension to the process: time. Whereas 3D printing technologies allow users to construct a 3D product, 4D technologies allow a 2D product to gradually change its shape over time in response to an external stimulus or energy source. This technique is also known as active origami or shape-morphing.

The technology already has practical applications: a sheet of plastic can transform itself into a cube when it comes into contact with water or a simple string that reveals a hidden message when you add it to water. Both were developed by Skylar Tibbits’ team at Massachusetts Institute of Technology’s Self-Assembly Lab (link with videos of the technology in action). 

Like many futuristic technologies, the prospect of real-life applications of 4D printing are immense, with the most promising (in my view)  being applications for space. 

The organisation of space cargo greatly impacts the cost of rocket launches and the use of 4D printed materials can increase the quantity of cargo that will be able to be transported. This will increase the viability of scientific projects such as the recent James Webb Space Telescope (which used origami technics) or Elon Musk’s plans to colonise Mars, where space cargo needs to be maximised.

Legal conundrums

3D printing created many legal discussions focusing on the scope of industrial design rights and its limits, in a similar fashion to how the introduction of peer-to-peer technologies started discussions in copyright-intensive creative industries. 

New technologies that democratise access to the tools of production or allow creative materials to be freely shared will certainly overlap with the principles of IP. 

Many users of 3D printing tech—if not most—do not breach IP laws, as they share schematics or print products that are new designs in their own right or where said uses are not in conflict with any exclusive industrial design rights, including private uses.

While conflicts between 3D printing and IP rights have already made the news (see, Just 3D Print v Stratasys / Makerbot, Philidelphia), the true impact has not yet been felt to a larger extent because 3D printing machines are not widespread. 

This could change over time as more users get access to 3D printing machines and will start to use the schematics of others with commercial intent. 

As 4D printing technologies build upon 3D technologies, the legal issues relating to the scope of industrial property and its limits will remain. 

From a legal point of view, the most novel aspect of 4D printing relates to the changing shape of its products as they are not static and change over time. In other words, the shape of the product might be different at any given time, depending on how they were programmed to act to certain environmental stimuli.

Changing shapes—shaping laws?

A “design” is defined by article 3(a) of the Community Designs Regulation (CDR) as the “appearance of the whole or a part of a product”. 

This definition is very broad and while it clarifies that the appearance results from its “lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation”, it does not necessarily follow that 4D products are excluded from protection, although it could be argued that the gradual change in shape of a product is not expressly mentioned.

The features that are mentioned, chiefly its material, sufficiently cover different or changing shapes, which means that 4D printed products can be included in the current definition of “design” under CDR. 

Protection can thus be awarded if the appearance does not stem solely from its technical function and if the substantial requirements are met.

A less promising conclusion can be drawn from articles 36(1)(c) and 36(5) of the CDR, as it is still required by the implementing regulations that designs need to be represented in a manner suitable for static reproduction, which includes paper reproductions and specifically paper registration certificates. This forces applicants to file design applications that only use still shots and not animated simulations.

Currently, the European Union Intellectual Property Office allows Community Designs to be filed with the most common JPEG format. It also allows OBJ, STL and X3D formats for 3D dynamic views of static images. 

While 4D products can certainly be registered as a succession of still images, as a way of circumnavigating the current limitations of the system, this is not ideal.
With the most recent updates to the EU Trademark Regulation and the administrative instructions that followed, the types of trademarks that can be registered were expanded and new file formats are now allowed, including OBJ, STL and X3D for 3D trademarks, but also MP4 for motion, multimedia, and hologram trademarks.

Future updates to the EU’s industrial design law framework should take the above difficulties into account and allow more types of files to be uploaded, allowing applicants to protect the changing shapes of products. 

This will also be useful in other areas of design, such as dynamic and interactive graphical user interfaces which are also protected or examined as snapshots.

Both the EU Design Regulation and Directive should be updated to clarify the scope of protection of industrial design rights and its relationship with 3D and 4D printing to foster the use of these technologies without prejudice to designers.

This is a co-published article, which was originally published in the World Intellectual Property Review (WIPR).