This is part two of the article that Klaus M. Brisch, LL.M. and Marco Müller-ter Jung, LL.M., both lawyers at DWF Germany, wrote for 3D fab+print. The authors concentrate on the subject of product liability in the field of additive manufacturing. They 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. Missed part one? You can read it here.
Defining ‘product’ and the basics of liability
One basic condition for understanding the special requirements of product liability in the field of 3D printing is a good understanding of the term ‘product’ as well as the existing liability system. The term ‘product liability’ refers to a manufacturer’s liability for damages that are caused by a product that was produced by the manufacturer.
A product shall mean any commodities or goods or anything sold, supplied, constructed, installed, repaired, serviced, processed, stored by or on behalf of [the company] or any structure constructed, installed or contract work executed by or on behalf of the [company].
Based on the above definition, this means that liability may apply not only to finished or completed products and their specific end manufacturer but also to the manufacturing and supply of components or raw materials needed for production which may also entail considerable liability risks. Thus, all parties of the production chain may be liable.
A liability obligation can arise on various legal grounds. First, one must consider contractual liability, e.g. liability claims brought by the end consumer (the purchaser) against the contractor that printed, processed or assembled the end product (the manufacturer). Thus, contractual claims are those which arise from an associated contractual agreement. Within the process chain, or perhaps ‘contract chain’, involving various parties and their respective contractual relationships, liability claims can only be brought forward within such respective contract relationship; meaning, contractual liability claims cannot be brought against a party unless there is a contract between the parties.
Statutory liability claims stemming from national and European liability regulations may also arise. In such cases, damages arising from a breach of contract that are fully attributable to the manufacturer need to be compensated by the manufacturer; however, fault will need to be proven in these cases.
Furthermore, under English law, it is considered negligence if reasonable diligence or expertise were lacking in the product design or manufacturing. This is based on the assumption that a product, which is free from defects, is less likely to cause damage. Claims for compensation can be brought against any party of the supply chain who breached their duty of care.
“In the context of liability in connection with 3D printing, the characteristics of this technology and its value chain lead to specific legal issues which need to be tackled.”
By contrast, German law (as mentioned above) recognizes strict product liability meaning personal, unlimited, joint and several liability to the manufacturer or the distributing company of the product, regardless if there is a privity of contract between the claimant and the manufacturer (more about this next week).
Complexity and digitalisation
In the context of liability in connection with 3D printing, the characteristics of this technology and its value chain lead to specific legal issues which need to be tackled. One should bear in mind that supply chains are usually quite complex in this industry, leading to potential faults and errors at different levels of the chain. Due to CAD files (containing the design of the product in digital form) and the completely digitalised process chain, further factors need to be considered that might lead to legal obstacles in connection with claims against other parties of the chain as well as the burden of proof.
This makes it even more difficult to define the areas of responsibility and eliminate any sources of errors. Therefore, the first question which often arises is against which party a claimant should direct their claim. Additionally, the variety of parties within the supply chain could make it difficult to prove at what point faults or defects occurred.
Furthermore, it is necessary to protect designs or CAD files from unauthorised access. Such files should not be publically accessible or else should be protected against cyber-attacks, otherwise these files might be modified and distributed which would immediately become subject to a legal dispute on product liability.
Part three of this article will appear online on September 12, stay tuned …