Originally appeared in Kaye Scholer’s Fall 2016 Consumer Products: Adapting to Innovation Report.
—By Angela Vicari and David Soofian
» Click here to read more articles from our 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.
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.
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