Until recently, manufacturers required a factory for mass production, a substantial investment in equipment, inventory and materials, and a brick-and-mortar retail site to sell their products. All this has changed with the advent of 3D printing. This disruptive technology will change the way we live because it will enable consumers and small businesses to manufacture products that previously could be produced only by large manufacturers.
What Is 3D Printing?
When they hear of 3D printing, most people think of a desktop printer. But a 3D printer is much more, and isn’t really a printer at all. While a desktop printer prints ink onto paper, a 3D printer is guided by an electronic blueprint or design file to fabricate threedimensional objects that you can hold in your hand.
How will this revolutionary technology affect our legal system? What will it mean when you can manufacture your own handbag, auto part, drug or even your own gun? How will the legal system keep up with these developments? This article provides a legal analysis of these issues.
3D printing enables manufacturing to move from the regulated factory to the personal home or office. But what will happen when a consumer is injured by a 3D-printed object? Who will be liable? Some possibilities are:
- The manufacturer of the 3D printer.
- The computer-aided design (“CAD”) software designer.
- The manufacturer of the laser scanner.
- The supplier of the material for the 3D printer.
- The seller of the 3D-printed object.
Obviously, many of the cases will be fact-dependent and different answers will be given for different facts. 3D printer companies and their suppliers will soon need to develop standards and certifications that may protect them from liability in the event of an accident. Governments will be called on to develop rules for the safety of 3D printers and related materials.
Trademark counterfeiting is a serious problem for the world economy, and the introduction of 3D printing will only exacerbate this problem. Imagine a world where the consumer or small business can use a 3D printer to replicate a designer pocketbook. An electrical device. A camera. An auto part. A medical device. The possibilities are endless.
The 3D printer can also replicate the manufacturer’s trademark, thereby making the faux product virtually indistinguishable from the genuine product.
3D printing is already the subject of patent litigation. Stratasys, a leading manufacturer of 3D printers, has sued Afinia, a popular 3D printer, for patent infringement. Also, 3D Systems has sued Envision Tec and Formlabs for patent infringement. The US Patent and Trademark Office has received more than 6,800 patent applications related to 3D printing technology, and legal experts expect that there will be many battles in the future between 3D printing companies.
There have not yet been any patent lawsuits regarding objects made on a 3D printer, but it is inevitable that such lawsuits will occur, especially when 3D printing technology makes it possible to copy a patented product, even a complex product. When that happens, who will be liable for patent infringement? Some possibilities are:
- The manufacturer of the 3D printer.
- The individual operating the 3D printer.
- The designer of the CAD files that are used to create the object.
However, it may be more difficult to prove liability for patent infringement than it is to prove for product liability when someone is injured by the product. This is because product liability can be shown through negligence, while indirect patent infringement requires knowledge of the patent and the direct infringement of that patent. This high standard, combined with the substantial costs of patent litigation, may make it difficult to bring a patent infringement lawsuit against manufacturers of 3D printers.
Companies that manufacture copyrightable objects like sculptures, toys, figurines and home designs will doubtless object if 3D printers are used to create unauthorized copies of their goods. The copyright law allows awards of statutory damages of up to $150,000 per willful infringement, plus the award of attorneys’ fees to the successful party.
Copyright owners need to be watchful for infringements of their rights, especially when CAD files are used to create the infringing items. Copyright owners will need to watch the Internet for distributors of CAD files that can be used to create objects that infringe their rights. It will be a laborious process that can be aided by software that automatically patrols the Internet looking for infringing designs.
As President Obama said in his State of the Union address, 3D printing “has the potential to revolutionize the way we make almost everything.” It may erase the distinctions that currently exist between manufacturers, distributors, wholesalers and retailers. Accordingly, it will also revolutionize our legal principles. Governments and legal authorities need to be ready to create and adopt new rules for this disruptive technology that will change the way we live. Manufacturers and inventors are wise to work with experienced legal counsel to develop a plan to protect their most valuable assets from threats posed by new technologies like 3D printing.