The acceleration of 3D Printing into manufacturing production processes (often referred to as Additive Manufacturing) has presented business with a number of enormous benefits – principally the dramatic reduction in time between the design phase and the prototype development/testing phases.
Along with these amazing benefits comes the need for modern manufacturers to carefully consider their confidential information and intellectual property protections, including with their workforce’s working conditions to ensure that they keep pace with the change.
Historically the capital costs of financing and maintaining the complex industrial tooling needed to build bespoke prototypes has created significant barriers to the creation of bold new products or improving existing stock. Many people can dream up an invention or a new part but have had no ability to convert the idea into a tangible “thing”.
However online tutorials and design apps coupled with a 3D printer (even a basic fused filament fabrication (FFF) plastic printer) enables the rapid production of the “thing” for preliminary testing or concept evaluation. The emergence of cheaper and more powerful Additive Manufacturing tools is shifting the balance back towards the importance of creative thought, ideas and design as opposed to industrial designs being limited by what a business’ machinery (and people) are capable of making. Just over 12 months ago GE printed a fully functioning jet engine. Recently Aurora Flight Sciences and Stratasys collaborated to 3D print and successfully launch a jet powered drone.
For Australian manufacturing it is an exciting time that allows for decentralised design and production processes: a new product prototype can be designed by a CAD system operator in Brisbane, shared with an engineering team in Melbourne for a preliminary structural evaluation and 3D printed in Sydney for overnight shipping to Brisbane/Melbourne for testing. The product “blue prints” are an easily transportable electronic file within a business but unfortunately also out of a business. Your product that has been designed in Brisbane, tested in Melbourne could also be printed in Taiwan by a competitor using a metal/laser 3D printer just by them accessing your design file.
Additive Manufacturing outpacing industrial relations governance
The rapid growth of Additive Manufacturing has clearly outpaced industrial relations governance. There is arguably no Modern Award coverage for the highly skilled CAD production specialists and coverage may depend on the blend of work that the employee is asked to do.
In addition, whilst the common law of employment provides generalised protections in relation to the ownership of inventions and intellectual property developed in the course of employment, there are also gaps within the common law – particularly so for ideas generated out of hours.
In the modern age of 24/7 email contact, working from home and remote log ins, there is a blurring that could create a lawyers picnic over who is the registered owner of a design per s13(1) of the Designs Act 2003 (Cth) (see for example Courier Pete Pty Ltd v Metroll Queensland Pty Ltd  FCA 735). The portability of design files also increases the risk that a prominent feature (or printing additive component) of one of your products may have been inappropriately sourced from a P2P file sharing site by a less than motivated staff member. It’s not just Game of Thrones that can be pirated over the net. Are you sure that your new product isn’t going to be killed off by an IP attorney?
Like all rapid advances in technology it is important to stay current and try to think ahead to manage and mitigate risks. Industrial relations and employment law in the manufacturing sector is no longer just about enterprise bargaining for production/warehousing workers along with deploying standard contracts for office staff & management.
Five questions for employers in relation to Additive Manufacturing
In this respect we would recommend that 3D Printing/Additive Manufacturers carefully consider the terms of their employment contracts with key personnel involved in their 3D printing production cycle with respect to:
- Is the employee Award covered? This can be a complex assessment depending on the various mix of work tasks. Eg, is the design work a core feature of their work or a peripheral aspect of the job? Refining the job description may be critical.
- What is defined as “confidential information” and what restrictions or protocols exist as to its authorised dissemination? Are there strict security protocols over designs & additive formula – including downloading information onto mobile devices/cloud accounts.
- Have you covered the ownership of intellectual property developed inside and outside the “worksite”?
- Have you required the return of intellectual property and confidential information on resignation/termination? How do you verify that everything has been returned?
- Do you need to include post-employment restraints of trade? Consider whether the geographical limits on the restraints are sufficient?