With the rapid rise of the additive manufacturing sector, it has become increasingly possible for industry players to make spare and replacement parts in a cost-effective manner. What’s more, the sector lends itself especially well to the fabrication of parts for the customisation of existing products and equipment. As such, all parties in the supply chain need to be acutely aware of the very real risks of IP infringement in this evolving space, says Jason Teng, partner and patent attorney at leading full service IP law firm, Potter Clarkson.
As things stand, different considerations apply depending on the type of IP rights covering a particular part or a complex product that includes the part. For instance, the manufacture of a whole patented product would normally constitute patent infringement, unless certain exceptions apply such as private non-commercial use. On the other hand, the manufacture of a spare/replacement part for incorporation into a patented product could either constitute an infringing “making” of the patented product or a non-infringing “repair”, which would vary on a case-by-case basis. On this note, some guidance can be found in a 2011 Supreme Court decision in the Schütz v Werit case.