United States: 3D Printing: New Legal Issues Emerge with the Technology's Revolutionary Potential

Originally appeared in Kaye Scholer's Consumer Products: Adapting to Innovation Report.

In his 2013 State of the Union address, President Obama said that 3D printing is a technology that has "the potential to revolutionize the way we make almost everything." That revolution is well underway in the consumer products industry and will result in profound changes to the ways that companies make and distribute products.

Like many new technologies, 3D printing will challenge our traditional legal framework for adjudicating disputes, including product liability cases arising out of injuries that are alleged to have been caused by a 3D-printed product and intellectual property cases alleging infringement.

What Is 3D Printing?

3D printing (aka additive manufacturing) is a process that creates an object by iteratively building two-dimensional layers and joining each to the layer below. Every 3D-printed object begins with a digital design created with computer-aided design (CAD) software or animation modeling software. The design serves as a "virtual blueprint" that is sent to the 3D printer, which "prints" the object.

The American Society for Testing and Materials has identified seven categories of 3D printing, which depend on material and process. Materials—i.e., the "ink" used to create an object—can include powder, plastics, metal, food, wood and/or concrete. Today, advanced 3D printing is limited by the palette of standard polymers and metal alloys. A wider assortment of novel materials, from living cells to semiconductors, is under development.

Although the technology remains in its infancy, it nonetheless offers many advantages to manufacturers. Take, for example, prototyping. Changing designs for a prototype can be expensive, requiring changes to complex manufacturing equipment and mold tools—a time-consuming process with no guarantee of success. By developing prototypes with 3D printing, product designers can change prototypes by adjusting a digital file instead of the equipment used to make the product. Breakthroughs can be made quickly, and if a design simply is not feasible, a designer can fail fast and fail cheap.

3D printing also offers benefits for manufacturing finished products. For example, 3D printing allows for the creation of products with a level of complexity that is not possible using traditional methods of manufacture and can result in cost savings from the elimination of excess material and waste. Perhaps most attractive to consumers, 3D printing brings with it the potential for mass customization. Want a bespoke piece of jewelry or a medical device specifically tailored to your anatomy? 3D printing can make that happen.

How Are Manufacturers Using 3D Printing Today?

On a daily basis, there are news reports of manufacturers implementing 3D printing into their processes. Some exciting examples include:

  • Automotive: BMW and Ford are using 3D-printed production parts, while Mercedes-Benz Trucks accepts orders for 3D-printed spare parts.
  • Aerospace: Cessna, Piper and Grumman are using 3D-printed parts.
  • Architecture: Architects and builders are 3D printing everything from bricks to whole homes.
  • Fashion: New Balance and Adidas are 3D printing sneaker midsoles.
  • Food: NASA is hoping to have astronauts 3D print food in space, while pasta maker, Barilla, is reportedly trying to create a pasta printer. The world's first 3D-printed food restaurant is even set to "pop up" in London in the near future.
  • Healthcare: 3D printing is being used today to make everything from medical models, prosthetics, dental implants and orthodontic appliances, hearing aids, bone, and even drugs and human tissue.

The Birth of Nontraditional Distribution Chains

More than a mere manufacturing process, 3D printing, with its relative accessibility, has the potential to turn the traditional chain of distribution for consumer products on its head. Once a product is reduced to a computer file, it can be "manufactured" by a printer located anywhere. Today, websites such as Amazon and Shapeways allow consumers to download digital design files and print their own products at home, or have the finished 3D-printed products delivered to their door. Colleges and universities make 3D-printing labs available to students, creating a generation of people accustomed to the possibilities of the technology. In the future, as 3D printers and materials become more advanced, point-of-purchase manufacture could become reality, offering convenience and customization to consumers on demand.

Product Liability Implications of 3D Printing

As nontraditional distribution chains emerge, our courts will be challenged with novel questions in what would otherwise be traditional lawsuits. For example, what will happen when consumer product companies sell a digital file instead of a finished product to consumers? Is the file itself a "product" for purposes of product liability law? What theories of liability can be applied to the seller of the digital file?

  • Is a Digital File a Product? The language of product liability law reflects a focus on tangible items. In determining whether something is a "product," courts typically examine whether the item is tangible vs. intangible, as well as the context of its distribution. The line between what constitutes a product, and what does not, can be blurry. Plainly, the physical object that is actually created by a 3D printer is a "tangible" product, but the issue of whether a digital blueprint is a product for purposes of product liability law is a novel question that has yet to be considered by any court. Existing case law interpreting what it means to be a product provides marginal guidance at best. At least two courts have suggested computer software might be considered a product for purposes of strict product liability in tort. Winter v. G.P. Putnam's Sons (9th Cir. 1991); Schafer v. State Farm Fire & Cas. Co. (E.D. La. 2007). There is also a nuanced line of case law under the Uniform Commercial Code: software that is mass-marketed is considered a good (Systems Design v. Kansas City Post Office (Kan. Ct. App. 1990); Advent Sys. Ltd. v. Unisys Corp. (3d Cir. 1991); RRX Indus., Inc. v. Lab-Con, Inc. (9th Cir. 1985)), while software that is developed specifically for a customer is a service (Data Processing Servs., Inc. v. L.H. Smith Oil Corp. (Ind. Ct. App.1986); Micro-Managers, Inc. v. Gregory (Wis. Ct. App. 1988)). If these cases become the foundation for analyzing product liability cases involving 3D-printed consumer products, whether the creator of a digital file can be held liable in strict liability may depend on how the file is marketed. If what is being sold is not a "product," a plaintiff's sole recourse may be under a theory of negligence, which subjects plaintiffs to a higher burden of proof.
  • Who Are Potential Defendants? There are several potential defendants in cases brought by a consumer alleging injury from a 3D-printed product, including the 3D-printer manufacturer, the designer of the digital file, and the entity or individual that printed the object. Imposing liability on the manufacturer of the 3D printer itself is unlikely, unless the alleged injury is caused by a defect in the 3D printer. Imposing liability on the designer of the digital file will likely turn on an analysis of whether the file is a product and the manner in which it is distributed. As for a local entity or person that printed the finished product, liability will likely depend on a number of factors that vary under state law, including the extent to which the entity or person "engaged in the business of selling or otherwise distributing products" (as opposed to a merely "casual" or "occasional" seller) and whether the entity or person falls under the protection of applicable "innocent seller" statutes.

Protecting Your Patents in the Age of 3D Scanning and Printing

Traditionally, consumer-product companies have focused their competitive analysis on their consumer-product competitors; a company would identify the patented innovations that make their products unique and determine if any of the products offered by their competition "rip off" those innovations by infringing their patents. But with the growing popularity of 3D printing, consumer-product companies will have to widen the scope of their analysis to account for new types of patent infringement. Now, instead of simply monitoring the marketplace for products for sale that infringe their patents, these companies will also have to look to the internet for 3D-design files that, if printed, would infringe their patents.

Charles Caleb Colton famously said "[i]mitation is the sincerest [form] of flattery." But, in the world of 3D scanning and printing, imitation left unchecked can be costly. As an initial matter, it is becoming easier than ever to create a 3D-design file from a physical product. To do so, a person only needs to put the object into a 3D scanner and software will automatically produce a 3D-design file that illustrates its exact measurements. While commercial 3D scanners have been available to designers for quite some time, consumer-level 3D scanners have been released more recently. Thus, similar to the problem that the music recording industry faced a decade ago with the digitization of music and distribution via file-sharing programs over the internet, there is a very real risk that anyone can create a 3D-design file from a product and make it publically available to the public on the internet.

However, unlike the music industry, which lobbied Congress to pass the Digital Millennium Copyright Act and gain a mechanism to force website owners to remove copyrighted content (DMCA Takedown Notice), patent owners do not yet have such a specialized mechanism to get objectionable 3D-design files removed from a website. Nevertheless, patent owners can utilize current patent law to create a makeshift takedown mechanism.

If the objectionable 3D-design file is hosted by a commercial 3D-printing company that allows the public to upload files and order 3D-printed models for delivery, then a patent owner can use the threat of a lawsuit for direct patent infringement to force the website provider/ commercial 3D-printing company to take down the objectionable 3D-design file. If the objectionable 3D-design file is merely hosted by a website that allows the public to download the 3D-design file and print out a model at home with their consumer-level 3D printer, then a patent holder can use the threat of a lawsuit for indirect patent infringement to force the website provider to take down the objectionable 3D-design file. In communicating with the owner of the hosting website, the patent owner should make sure to (1) identify the objectionable 3D-design file hosted on the site, (2) notify the website owner that the design, if printed, infringes their patent(s) and (3) ask the website owner to remove the objectionable 3D-design file or face the risk of a lawsuit for indirect patent infringement.

The consumerization of 3D scanning and printing creates the very real possibility of large-scale patent infringement by reducing a physical product to a 3D-design file and distributing it via the internet for 3D printing. Should that future come to pass, patent owners will be best served by new specialized patent laws to combat this new threat. But until then, patent owners should be on the lookout and be prepared to deal with any objectionable 3D-design files using the capabilities of our existing patent law.

Conclusion

Because law often lags behind technological and scientific advancements, the presence and impending proliferation of 3D-printed products raises more legal questions than answers today. While the questions addressed above are theoretical now, they will soon become reality and it is unclear how the courts will rule. One thing, however, is certain: our legal system does not allow perceived "wrongs" to be left without remedy for long. Attorneys who defend consumer product manufacturers must prepare as diligently as they can to develop defenses and be prepared when the first product liability and intellectual property cases involving 3D-printed products are filed.

Originally appeared in Kaye Scholer's Consumer Products: Adapting to Innovation Report.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Foley & Lardner
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Foley & Lardner
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions