According to product liability law in the European Union, producers of products are subject to strict liability if products are defective and this leads to violations of certain legal interests (life, body, health, privately used objects). Persons other than producers are only liable under additional conditions.
“Producer” is therefore a key term in product liability law. If products are manufactured using 3D printing, the roles existing in the conventional value chain (supplier-producer-dealer-user) may change. Wholesalers and retailers may not be part of it, but other players may be added, such as the creator of the CAD file that contains the individual commands for controlling the 3D printer, and the person printing out the end product (a private or commercial user or an additional service provider). Product liability law – this applies to Germany, but equally to all other EU Member States – is based on the conventional value chain, however, and contains provisions which, unmodified, do not take account of these changed roles. For reasons of correctly offering incentives (those who are able to prevent or minimize risks should be given incentives to do so, within economic reason), but also for considerations of fairness, a broad interpretation of the term “producer” is therefore advisable. On the other hand, it seems appropriate to limit the liability of the persons so included to areas that they are controlling.
At the South Philadelphia high-tech makers’ space NextFab, creators of all types work on projects using laser cutters, robots, and a room full of 3D printers.
Walt Barger, who manages the printing operations there, is standing between two printers the size of refrigerators, noting both their power and price tag.
“It’s an older printer, but it’s still a $40,000 machine,” he said, pointing to one. “And the one next to it, the ProJet, is a $100,000 machine.”
Lately, Barger has been extra vigilant about the kinds of things people are hoping to create here.
“Our staff is always monitoring. If we see anything that even looks like a gun, we’re going to stop the person,” he said.
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.
CECIMO believes the current 3D printing intellectual property rights framework is fit for purpose.
CECIMO, the European Association of the Machine Tool Industries, has said the European Parliament risks stifling 3D printing innovation by introducing premature regulatory measures to protect Intellectual Property.
The European Parliament recently released a non-binding resolution entitled ‘Three-dimensional printing: intellectual property rights and civil liability’, with 631 votes in favour, 27 against, and 19 abstentions. It called for sterner parameters surrounding IP infringements and has suggested a potential revision of the Liability and Intellectual Property Rights (IPR) regulatory framework for 3D printing within the European Union, and has also raised the feasibility of national copyright levy systems.
From Freshfields Bruckhaus Deringer LLP:
On 3 July 2018, the European Parliament adopted a resolution entitled ‘Three-dimensional printing: a challenge in the fields of intellectual property rights and civil liability’.
The resolution starts by pointing out that 3D printing – also known as additive manufacturing – could be of great benefit to the European economy.
But the document mainly looks at the legal issues the technology raises. For example, it says more public awareness is needed to protect IP rights relating to 3D printing and calls on the European Commission to consider issues around civil liability. It even suggests the Commission could set up a specific liability regime.
According to the Parliament, the EU may have to adopt new, and amend existing, laws to take account of 3D printing. With the report claiming that Europe can play a leading role in additive manufacturing, it will be interesting to see how quickly the Commission moves to tackle the issues raised.
Imagine a printer in the middle of a construction site programmed with a designer’s plans and specifications to build an entire home from scratch. As concrete is fed into the printing device, a technician hits enter on her computer and a 3D printer starts fabricating the structure’s walls and roof.
The final product will be created almost entirely by pre-programmed software and a movable printer injecting concrete, with no need for human construction workers. This isn’t science fiction, it’s a reality on the cutting edge of construction and technology.
The use of 3D printers in the construction industry will have legal implications that will affect owners, contractors, manufacturers and software developers.
Three-dimensional printing technology has made impressive advances over the last several years. Thirty years ago when 3D printing was first invented, this new technology was rather expensive, difficult to use, and limited to prototyping of only small components. Today, significant developments in 3D printing technology, work flow control software, and materials science have all allowed 3D printing to be used in virtually every technology and business sector—from 3D printing of industrial products and components, to even bioprinting of human organs.
3D printing is also no longer limited to fabricating components from a single material and can today combine multiple printing materials to 3D print fully functional multi-material components, including drones and other electrical and mechanical devices. While there has been great excitement about the many advantages and benefits that 3D printing presents, commentators have pointed out that the proliferation of 3D printing technology will have significant implications to traditional business and legal frameworks, and notably to existing intellectual property (IP) laws. This article looks at some of the ways 3D printing technology fails to mesh with existing IP law and offers possible strategies to address some of these concerns.
From the legal firm, Reed Smith:
“Over the past two years, Reed Smith has published a comprehensive white paper—3D Printing of Medical Devices: When a Novel Technology Meets Traditional Legal Principles—examining the legal issues associated with 3D printing of medical devices. Over that time, 3D printing has become even more widespread in the medical realm as well as the marketplace as a whole. Almost daily, a new 3D printed product is being designed, marketed, or sold.
This white paper, 3D Printing of Manufactured Goods: An Updated Analysis, complements and expounds on the issues raised by the first edition and examines the legal ramifications and risks associated with all aspects of 3D printing and the different products that this novel technology is capable of creating. While the technology is still in its infancy and the law is untested in many respects, understanding the legal issues is the first step to avoiding potential pitfalls for anyone associated with 3D printing, from designers, to manufactures, to sellers, to consumers.
The chapters that follow include a wide range of developing legal, safety, and security issues:
- Constitutional Issues (regarding 3D printed guns)
- Commercial Litigation
- Product Liability
- 3D Printing/Component Parts/Raw Materials
- Insurance Issues
- Intellectual Property Issues
- Data Privacy
- Environmental Safety
This white paper, along with the first edition, is meant to be a comprehensive, up-to-date resource, on the legal issues that are involved in 3D printing. As the law and technology develops, new and updated chapters will be released, with the prior editions serving as building blocks.”
Download the pdf here
Tort and privacy law concerns aplenty as it’s revealed we’ll be able to 3D print new organs by 2023.
It is no news that 3D printing has the potential to change our world as much as the internet has over the last two decades.
The industry — at least in the domestic market — is barely a few years old, but the technology is already signalling an age where we can assemble, out of thin air as it were, tools and toys at the push of the button.
Daihatsu, a Japanese manufacturer of small cars and a subsidiary of Toyota, announced on 20 June 2016 that it would begin offering car buyers the opportunity to customise their vehicles with 3D-printed parts. For drivers with more modest budgets, this offers the kind of individual tailoring of vehicles hitherto restricted to the luxury limousines and sports cars of the super-rich.
Three-dimensional printing can be used to create all sorts of physical objects, from small toys to entire houses. Whole economies may be transformed if it’s cheaper to print products near where they’re sold instead of importing from faraway lands, and the effects on society don’t end there. Three-dimensional printing is also called additive manufacturing. It shapes raw materials into the desired form without the waste caused by subtractive manufacturing, or machining, where machines cut pieces of raw material to create objects.
As it becomes more widespread, 3D printing will affect many lawyers, and not just in the courtroom. “My firm has represented clients involved in 3D printing,” said Maya Eckstein, a Richmond, Va.-based partner and head of the intellectual property practice group at Hunton & Williams LLP. “It isn’t a huge part of anybody’s practice at this point,” she added.