Product Liability in 3D Printing Processes – part three

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This is the third part of the article Marco Müller-ter Jung, LL.M. and Klaus M. Brisch, LL.M. – both lawyers at DWF Law in Germany – wrote  for 3D fab+print. The two lawyers focus on the topic of product liability in the field of additive manufacturing.

The authors tell about how within the production process, errors can occur at many stages, e.g. when using a faulty file, incompatible raw material or incorrect settings on the 3D printer. Did you miss (one of) the previous parts? Here you can read part one and part two here.

Specific Issues of Product Liability in the Field of 3D Printing

Due to the complexity of the value chain, the question usually arises which parties are identified as ‘manufacturer’ and are thus liable for potential claimed damages. Under the German Product Liability Act, for instance, the term manufacturer includes ‘quasi manufacturers’, producers of parts, importers and suppliers. However, further definition is needed in each individual case of value chain and collaboration to determine if the term ‘manufacturer’ includes parties such as the producer of materials, subcontractors, assemblers and developers of printing templates or printing services. Equally important for the legal assessment in the context of product liability is the question of who distributed the product, meaning which party initially put the product on the market.

It is also necessary to discuss what the term ‘product’ means, especially in connection to the question of whether CAD files are considered a digital form of the product thus making it susceptible to product liability. When providing printing templates on online platforms, such a qualification might be appropriate since products on these platforms are usually digital products necessary for producing physical products and marketed accordingly. Consequently, one would need to determine if the platform operator and further parties such as the uploader can be defined as manufacturer.

Legal issues in light of 3D printing

Most of these legal issues are not new, however, they do need to be revaluated in light of 3D printing and the different supply and performance relationships within additive manufacturing. In addition to the question of responsible party in case of liability claims, questions such as negligence, burden of proof and possible recourse, play a significant role in legal discussions.

Moreover, it is important to mention that the German Product Liability Act, which is based on a European-wide policy and, in contrast to the legal manufacturer liability, is not subject to fault, has almost no scope of application in connection with liability between two companies. Primarily, the Act supports the consumer in making the manufacturer or distributing company liable for a product. A product containing a defect due to faulty components or material can only trigger the manufacturer’s liability as defined in the Product Liability Act if the product was meant and primarily used for private use and consumption.

Liability for material damage is excluded in business between companies however, because in this case there is no consumer. Thus, in cases between companies, only liability for personal injuries are considered which leads to a limited scope of application. Apart from this, liability for material damage is only possible under the stricter conditions of the manufacturer liability which is subject to fault.

“Most of these legal issues are not new, however, they do need to be revaluated in light of 3D printing and the different supply and performance relationships within additive manufacturing.”

Another problem which has less to do with product liability law but should still be addressed is the potential of 3D printing technology to enable and facilitate third parties to produce illegal and often low-quality copies of a product. From a legal perspective, this leads to the question of infringing intellectual property (such as patents, copyright or trademark rights) and damaging the reputation of a company. Should products such as replacement or accessory parts be copied and distributed by unauthorised third parties, the original manufacturer is generally not liable for the product since he did not bring the product (that might be substandard and not appropriate for its particular use) to the market nor did he distribute it.

Nevertheless, it is possible for the damaged party to initially bring claims against the original manufacturer if the fact that it was an imitation was not immediately identifiable. Although the damaged party bears the burden of proof to determine whether the product is an original product or a counterfeit, the company may be involved in protracted lawsuits. This, as well as the fact that (counterfeit) products are on the market and associated (although unlawfully) with the original company could substantially damage the reputation of the original manufacturer.

The fourth and final part of this article will appear online in week 38.