Product Liability in 3D Printing Processes – part one

Product Liability in 3D Printing Processes – part one
Klaus M. Brisch, LL.M.

Just a few weeks ago, Klaus M. Brisch, LL.M. and Marco Müller-ter Jung, LL.M., both lawyers with DWF Law in Germany, provided an insight into the work done by the technical committee 105.5 (FA 105.5) of the Association of German Engineers (VDI), which focuses on the interface between technology and law with a special focus on legal issues in connection to additive manufacturing.

In this new article 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. This is part one of three.

Who’s the ‘manufacturer’ in AM?

Under German law, more than one party could be technically defined as the ‘manufacturer’ of the product, therefore the complexity of the value chain and the number of parties involved (such as powder supplier, designers/translators of CAD files, plant manufacturers or service providers) bring up a variety of questions in connection to product liability.

It is crucial that each party in the process chain has a comprehensive understanding of the existing liability system in order to facilitate early detection of potential liability risks and ways to possibly reduce such risks by implementing appropriate provisions in the contracts between the parties. Furthermore, it is important from the outset for each party to identify to what extent he could be liable, particularly, in cases where a party does not view himself as ‘manufacturer’ and believes he is not responsible for liability claims.

To this end, it is necessary to ensure clarity as to which party is responsible in case of claims and to establish necessary provisions for liability claims or take liability risks into account from the outset.

Legal sources

In order to clarify the issue of product liability, it is important to take into account various national and European regulations determining the conditions of liability. However, it is crucial to differentiate between regulations for business between companies and business between companies and consumers.

Under English law, the Consumer Rights Act 2015 and the Consumer Protection Act 1987 (implementing an EU guideline) are the legal basis for business between companies and consumers. While for companies doing business with other companies, the Supply of Goods and Services Act 1982 and the Sales of Goods Act 1979 apply.

These legal sources are outlining basic legal schemes, however, they might not be fully convincing on a legal basis taking into account the particularities of modern productions. Thus, there is an urgent need to clarify on a national and European level if the existing legal regulations need to be simply modified or if their scope of application requires a complete overhaul due to significant technical progress.

Determining product liability

In Germany, the current system for determining product liability is a result of various legal sources based on German law. If there is a contractual relationship between a party claiming damages and the associated company, there are conceivable grounds for a liability claim. Additionally, statutory liability, which assumes the occurrence of fault, might apply if there were an infringing act in connection with legally protected interests.

Moreover, there is a risk for liability claims based on the German Product Liability Act which is regulated under European law. Under German law, product liability is designed to favour the consumer, leading to a more limited scope of application. Furthermore, breaches of duty may arise from the General Product Safety Act which is also regulated by European law. There is also the fact that special legal provisions regarding product liability may exist depending on the specific industry in which the product is used.

These provisions may modify the requirements of product liability or determine specific (security) standards reflecting the peculiarities of the specific market; not to mention, liability conditions can also differ based on jurisdiction. In Germany, for instance, technical standards and norms may be deemed ‘vaguely-defined legal concepts’ (German: unbestimmte Rechtsbegriffe) and yet are the determining factor for the assessment of (product) liability. In such cases, claim merits are determined on a case-by-case basis, meaning each claim and the extent of its potential damage needs to be investigated individually.

Part two will appear online on September 5th.