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Future Outlook: The Spare Parts Debate in the Era of 3D Printing

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An International Perspective on Design Protection of Visible Spare Parts

Part of the book series: SpringerBriefs in Law ((BRIEFSLAW))

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Abstract

In the preceding chapters we examined the law and policy surrounding the issue of design protection for spare parts. We found it to be deeply divided, a reflection of the stakeholders’ respective interests in the market. The situation has been stagnant but increasingly tense for the past two decades, and while legislative action remains possible, the will for it seems to be lacking. Solutions are being sought primarily by way of court actions.

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Notes

  1. 1.

    The technology is already being applied in the automotive parts industry. Entire cars have been produced by 3D printing. Manufacturers also use 3D printing on a routine basis to manufacture specific parts. Local Motors, a U.S. company founded in 2007, produced an entire car by using 3D printing, based on open-source and crowdsourcing (see https://localmotors.com/); to this, see Anastassacos 2015. The first 3D-printed car was Urbee, a prototype hybrid car whose body completely consists of Acrylonitrile butadiene styrene (ABS) plastic (see https://korecologic.com/). BMW is an example for an established OEM which already uses 3D printing to produce parts, even metal parts. For details on the development, see Sapienza 2015.

  2. 2.

    For a more detailed introduction, see Zukas and Zukas 2015, para 1.1. For details on the history of 3D printing, see Mendis et al. 2015, p. 2. Some scholars differentiate the terminology, using “additive manufacturing” for industrial settings and “3D printing” for media or hobbyist environments. Others use the terms synonymously. See e.g. Europe Economics 2015, p. 127; Huang et al. 2015. For purposes of this book the term 3D printing will be used throughout.

  3. 3.

    For details on the different methods, see Bechtold 2016, p. 519.

  4. 4.

    Cf. Bechtold 2016, p. 520.

  5. 5.

    Bechtold 2016, p. 519.

  6. 6.

    See also Bechtold 2016, p. 520.

  7. 7.

    Nordemann et al. 2015, p. 1265.

  8. 8.

    Nordemann et al. 2015, p. 1265; Schmoll et al. 2015, p. 1042: CAD files may either be custom developed or downloaded from the internet, e.g. special online platforms.

  9. 9.

    See http://www.boeing.com/features/2016/08/record-books-08-16.page.

  10. 10.

    See http://www.airbusgroup.com/int/en/story-overview/Innovators-3D-printing.html.

  11. 11.

    For details, see Bechtold 2016, pp. 524 et seq.

  12. 12.

    Cf. Markets and Markets 2015, paras 7.3, 7.5.

  13. 13.

    Smaller players such as 3D Systems and Stratasys have gained in volume, but large players, in particular Hewlett Packard have begun acquiring 3D printing technology for the industrial sector. See http://fortune.com/2016/05/17/hp-3d-printer-manufacturing/.

  14. 14.

    Cohen et al. 2014.

  15. 15.

    Adler 2014, pp. 24 et seq.

  16. 16.

    Hagel III et al. 2009, pp. 1 et seq.; see also Birtchnell and Urry 2013, pp. 33.

  17. 17.

    Bechtold 2016, p. 518 et seq.; Kylau et al. 2015; Lemley 2015, pp. 461 et seq. For an overview, see Campbell et al. 2011, pp. 10 et seq.

  18. 18.

    Hagel III et al. 2009, pp. 1 et seq., who titled it “The Big Shift”.

  19. 19.

    Hagel III et al. 2009, pp. 1 et seq.

  20. 20.

    Kylau et al. 2015.

  21. 21.

    Cf. Widmer and Rajan 2016, p. 13.

  22. 22.

    Cf. Widmer and Rajan 2016, p. 13.

  23. 23.

    Cf. Widmer and Rajan 2016, p. 3; Reeves and Mendis 2015, p. 14; Giffi et al. 2014, p. 5.

  24. 24.

    Cf. Reeves and Mendis 2015, p. 14: “compressing the supply chain”; Campbell et al. 2011, p. 11: “Manufacturing could be pulled away from ‘manufacturing platforms’ (…) and back to the countries where the products are consumed, from the home to other larger but local facilities”; more skeptical White 2015.

  25. 25.

    See Birtchnell and Urry 2013, p. 33.

  26. 26.

    Cf. Giffi et al. 2014, p. 4; Lemley and Shapiro 2013, pp. 1135 et seq.; Campbell et al. 2011, p. 10. See also the discussion of outsourcing the production to professional printing shops close to end customers in Bechtold 2016, p. 531.

  27. 27.

    White 2015; see also Lemley and Shapiro 2013, pp. 1135 et seq.; Campbell et al. 2011, p. 10.

  28. 28.

    See Lemley and Shapiro 2013, pp. 1135 et seq.

  29. 29.

    Cf. Reeves and Mendis 2015, p. 14: For example, this may incentivize new manufacturers of spare parts for more exclusive cars, whose businesses are based on small-scale production; see also Birtchnell and Urry 2013, p. 27. Early stages of this shift have already occurred. Few would have imagined 20 years ago that the distribution systems of established industries, such as record labels and the movie industry, could be fundamentally disrupted by the internet. Or even five years ago, that the hotel industry could be cannibalized, by businesses relying not on accumulated assets of hotel space, but on the ability to use platforms that capture and employ flows of knowledge about available space among private parties (e.g. Airbnb). See Widmer and Rajan 2016, p. 4; also Lemley and Shapiro 2013, pp. 1135 et seq.; Surden 2013, pp. 1 et seq.

  30. 30.

    E-tailing means selling retail goods online. On the future development, see e.g. Deutsche Post DHL, Global E-tailing 2025, 2014, available at: http://www.dpdhl.com/content/dam/dpdhl/global-etailing-2025_de.html.

  31. 31.

    See Lemley and Shapiro 2013, pp. 1135 et seq.

  32. 32.

    See also Frost and Sullivan 2015, para 8: In 2015, 3D printing in the automobile industry was still mainly (90%) used for prototyping. However, even complete cars have already been produced.

  33. 33.

    See Depoorter 2014, pp. 1485 et seq.

  34. 34.

    See Anastassacos 2015.

  35. 35.

    See Anastassacos 2015; Frost and Sullivan 2015, para 8.

  36. 36.

    See Birtchnell and Urry 2013, p. 27.

  37. 37.

    For example, an average industrial 3D printer costs about $75,000. See Europe Economics 2015, p. 130.

  38. 38.

    To this, see Europe Economics 2015, pp. 131 et seq., 160 et seq.

  39. 39.

    A higher price pressure on OEMs can be expected, see Anastassacos 2015.

  40. 40.

    Moreover, the costs for 3D printing are cheaper for professional users than they are for private consumers, as they are producing on a large scale and employing specialists (Europe Economics 2015, pp. 128 et seq., also for details on the costs of 3D printing). See also Dawson 2013, citing Sandro Piroddi, Supervisor for Rapid Prototyping, Ford: “Piroddi does not expect consumers to be producing and fitting their own spare parts at home either. ‘You will not reach the quality we have here, or on the expensive printers (…) I can imagine if the printer is a low price, you have to pay a high price for your material. The next thing is you need a certain software to design your part, to treat it so that you can build your part on your printer. But perhaps, you can get some files of parts which are already constructed from the internet, and print them at home (…) On the other hand, never say never – I don’t know what will happen in 100 years’”.

  41. 41.

    Giffi et al. 2014, p. 5.

  42. 42.

    See also Europe Economics 2015, p. 130.

  43. 43.

    For customers, it might be interesting to choose the original product if there is no vast difference in prices, as parts produced on the basis of the original CAD files would often be seen as more trustworthy, standing for higher quality and safety standards. Negotiation on the amount of royalties will become critical. As independent spare parts manufacturers would also be interested in such business models, royalties would become one decisive factor determining market positions.

  44. 44.

    See generally Hagel III et al. 2009, pp. 1 et seq.

  45. 45.

    Other elements of the competitive advantage include speed of market launch of products, flexibility, IP rights, customer networks and collaborative customer relations and branding. See Lemley and Shapiro 2013, pp. 1135 et seq.

  46. 46.

    Technological knowledge may in principle be patentable, but often in spare parts does not meet the criteria for patentability. The following references to technological know-how relate to unpatented, confidential information, that would likely be protected under trade secret laws.

  47. 47.

    See infra section 7.4.3.

  48. 48.

    Volvo announced a feature of its electric vehicles: electrically chargeable body parts composed of multiple layers of carbon fiber, which are insulated from each other by fiberglass inserts. The layers of polymer-infused carbon fiber are actually acting as the cathode and anode in this system with super capacitors built into the skin. See Whitwam 2013.

  49. 49.

    Giffi et al. 2014, p. 12; Walter-Hermann and Büching 2014.

  50. 50.

    In the context of intelligent vehicles, mere reverse engineering rarely yields sufficient information to support production of a part.

  51. 51.

    For the special case of the so-called FabLabs (fabrication laboratories) – open, democratic workshops where users can produce things using technologies such as 3D printing, connected with models like open-source hardware, see Anastassacos 2015 (for implications on the spare parts market); also Walter-Hermann and Büching 2014.

  52. 52.

    See generally Beldiman 2015, pp. 104 et seq.

  53. 53.

    See Reeves and Mendis 2015, pp. 14. For details on this principle and case studies from the French automobile industry, see Doran et al. 2007, p. 2 et seq.

  54. 54.

    An interesting segment of the automotive industry that has already adopted 3D printing is the “ultraluxury” segment. See Giffi et al. 2014, p. 11.

  55. 55.

    Examples are: AMG, Brabus and Abarth.

  56. 56.

    See e.g. http://www.autoanything.com.

  57. 57.

    Cf. Reeves and Mendis 2015, p. 20, who state that this will rather be a “long-term opportunity”. Likely this process will require assistance from qualified employees. Depending on the amount of freedom in designing such parts, designs may depart from the standard to an extent that they could become the customer’s own design.

  58. 58.

    Ultimately customers select automobiles for the aesthetic appeal imparted to them by professional automotive designers, carefully harmonized in terms of aesthetics and functionality. Outside input may be perceived as undesirable by the manufacturer and ultimately not result in an appearance pleasing to the customer.

  59. 59.

    Some OEMs offer numerous alternatives within approved parameters, e.g. NHTA crash performance norms. Therefore, replication must be done by specialized entities.

  60. 60.

    See also Mendis et al. 2015, p. 6: ten years; Reeves and Mendis 2015, p. 14: 15 years.

  61. 61.

    Mendis et al. 2015, p. 6; see also Campbell et al. 2011, p. 7.

  62. 62.

    Reeves and Mendis 2015, p. 19.

  63. 63.

    Reeves and Mendis 2015, p. 19.

  64. 64.

    Campbell et al. 2011, p. 7. To this and additional technological limitations of 3D printing, see Ford 2014, p. 23; Bourell et al. 2009, pp. 16 et seq.

  65. 65.

    Reeves and Mendis 2015, p. 19.

  66. 66.

    According to Reeves and Mendis 2015, p. 18, some parts will never be produced in the same quality as it is possible by means of traditional manufacturing. Rather optimistic Giffi et al. 2014, p. 13, providing a graphic that shows which parts could be manufactured by means of 3D printing in the future. On the other hand, 3D printed parts are already being used in the airplane industry (see infra section 7.2).

  67. 67.

    Reeves and Mendis 2015, pp. 16 et seq., also with a list of example parts; skeptical also White 2015. In contrast, according to Markets and Markets 2015, para 6.3.2, components such as the frame and doors will be producible by 3D printing one day.

  68. 68.

    Cf. Reeves and Mendis 2015, p. 18; see also Giffi et al. 2014, p. 17.

  69. 69.

    Reeves and Mendis 2015, p. 19.

  70. 70.

    Reeves and Mendis 2015, p. 19. On the limits of 3D scanning Allen 2013.

  71. 71.

    In future, it can be expected that 3D printing technologies will become faster, raising their potential for mass production in the industry (cf. Kelly Services 2016: “(T)hough 3D printing isn’t yet feasible for use in mass production, it’s probable that in the near future, it will be”). However, this is not the question here, as this section deals with the use of 3D printing technologies at a local level, producing single parts on demand only. Furthermore, next to the above-mentioned costs for printing technologies and materials, there will be labor costs remaining, caused by the necessary pre- and post-printing processing, e.g. polishing and cleaning the product; see Holweg 2015.

  72. 72.

    Reeves and Mendis 2015, pp. 16 et seq., also with a list of parts; see also Allen 2013.

  73. 73.

    Holweg 2015: “3D printing simply works best in areas where customization is key (…) However, we also know that 99% of all manufactured parts are standard and do not require customization”.

  74. 74.

    See also Holweg 2015; Park 2015: “(I)t can not now, and likely will not ever exist in isolation”; Giffi et al. 2014, p. 19: “While (3D printing) will not become the only manufacturing technique in the future, it will nonetheless play an important role in shaping the global automotive landscape”; Timms 2014. For an interesting analysis of factors that will influence the role of 3D printing in future economies, see Birtchnell and Urry 2016, pp. 88 et seq.; Reeves and Mendis 2015, p. 18; Wong and Hernandez 2012, p. 8. Indeed, 3D printing plays a relatively greater role in the “ultraluxury” segment of the automotive industry already today.

  75. 75.

    The contrary argument is that such aesthetic differentiation usually comes at the end of a technological cycle, when functional improvements can no longer be made, e.g. different colors of notebooks. The automotive industry is entering a new age of assisted and automated driving. It might be possible for these developments to overshadow any aesthetically based alternate products offered by manufacturers.

  76. 76.

    This would be a question for the national law of individual jurisdictions.

  77. 77.

    Another challenge to spare part design rights that might be impacted in a 3D printing environment is the functionality defense, as customization of a vehicle’s spare part’s design is likely to be based on aesthetic considerations.

  78. 78.

    Article 110(1) CDR.

  79. 79.

    BMW AG v. Round and Metal Ltd and Philip David Gross [2012] EWHC 2099 (pat).

  80. 80.

    BGH, 2 June 2016, I ZR 226/14 (OLG Stuttgart), GRUR Int 2016, 1057 – Kraftfahrzeugfelgen; OLG Stuttgart, 11 September 2014, 2 U 46/14, GRUR 2015, 380.

  81. 81.

    See the above-mentioned recent referrals to the CJEU: Corte di Appello di Milano, 18 July 2016, Case C-397/16 – Acacia s.r.l. v Pneusgarda s.r.l. (in bankruptcy), Audi AG; BGH, 2 June 2016, I ZR 226/14 (OLG Stuttgart), GRUR Int 2016, 1057 – Kraftfahrzeugfelgen. For details on them, see supra section 5.2.3.

  82. 82.

    Aftermarket tuning services have long been available offering entire body kits or replacements of body panels, bumpers, side skirts, fender flares, spoilers and hoods. However, their scope and flexibility is likely to be considerably enhanced in a 3D printing environment. For examples of aftermarket tuners, see Teslarati Network, Tesla Model S Aftermarket Body Kits, available at: http://www.teslarati.com/tesla-model-s-aftermarket-body-kits/; http://www.revozport.com/tesla/quality-control.html.

  83. 83.

    Exterior spare parts are traditionally hard to protect by patents. However, that may change with intelligent vehicles.

  84. 84.

    Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure, L 157/1; U.S. Defend Trade Secrets Act of 2016.

  85. 85.

    Simple reverse engineering alone of a visible spare part does not ensure its interoperability with the vehicle’s electronics.

  86. 86.

    A possible basis for challenging an IP owner’s market dominance is competition law, in the event it has an adverse impact on consumers. It might be argued that the OEM’s technical information constitutes an essential facility and excludes competitors. See CJEU, 29 April 2004, Case C-418/01 – IMS Health GmbH & Co. OHG v. NDC Health GmbH & Co. KG [2004] I-5039; CJEU, 6 April 1995, Joined cases C-241/91 P and C-242/91 P – Radio Telefis Eireann (RTE) and Independent Television Publications Ltd (ITP) v. Commission of the European Communities (Magill) [1995] I-743. Compulsory license solution actions challenging OEMs’ failure to release proprietary know-how on competition grounds have been brought in various fora.

  87. 87.

    CJEU, 5 October 1988, Case C-238/87 – AB Volvo v. Erik Veng (UK) Ltd. [1988] 6211; CJEU, 21 June 1988, Case C-53/87, – Consorzio Italiano della Componentistica di Ricambio per Autoveilici (CIRCA) and Maxicar v. Régie Nationale des Usines Renault [1988] ECR 6039, 237.

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Authors and Affiliations

  1. Academic Director and Founder, Center for Transnational Intellectual Property, Bucerius Law School, Hamburg, Germany

    Dana Beldiman

  2. UC Hastings College of the Law, San Francisco, USA

    Dana Beldiman

  3. Researcher, Center for Transnational Intellectual Property, Bucerius Law School, Hamburg, Germany

    Constantin Blanke-Roeser

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Correspondence to Dana Beldiman .

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Beldiman, D., Blanke-Roeser, C. (2017). Future Outlook: The Spare Parts Debate in the Era of 3D Printing. In: An International Perspective on Design Protection of Visible Spare Parts. SpringerBriefs in Law. Springer, Cham. https://doi.org/10.1007/978-3-319-54060-3_7

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