3D printing, which can make products as varied as firearms, auto parts and medical devices, is posing new and thorny questions for lawyers scrambling to protect clients from lawsuits.
James Beck, a lawyer at Center City’s Reed Smith, is one of them.
Beck is part of a Reed Smith team focused on 3D printing and the novel legal issues raised by this new manufacturing technique. The process is so new that as far as the Reed Smith team can tell, no manufacturer has yet been sued. Nor is there much case law.
The technology employs software that instructs a “printer” to layer heated materials that are soft as they are applied but harden into finished products. When purchased from a supplier, or downloaded as a shared file from the internet, the process has made it possible for individuals to make relatively complex devices on their own.
But courts have had little to say so far about who is responsible when one of those products fails.
“This idea of the end user becoming the manufacturer pretty much turns everything on its head,” Beck says.
To help manufacturers sort through the issues, the Reed Smith team recently published a 55-page report delving into the issues raised by 3D printing, touching on national security, constitutional law, and product liability.
Beck has spent his career representing medical device and pharmaceutical makers, and he became interested in the legal implications of 3D manufacturing through some of the changes he observed in the life sciences industry. Hospitals and physicians already are using 3D techniques in care.
But the technique is relatively new. 3D products have come widely into use only in the last five years.
Thus, many of the legal issues remain unresolved, Beck says. Traditional liability law typically provides protection for software makers, and courts have long held that printed materials are generally protected by the First Amendment.
But there is the possibility that this is changing. Some case law suggests that computer aided design software is so integral to the product that its makers might have some legal exposure when something goes wrong.
Typically, purely electronic data does not constitute a product, under the law, but electricity does, the Reed Smith lawyers point out, underscoring the uncertainty in this new arena.
Beck says traditional liability law likely will apply for conventional manufacturers that use 3D printing to make products for sale to their customers. If a product has a defect, and the manufacturer could or should have known of the potential harm, then it is subject to “strict liability,” meaning it makes no difference what the customer did: The product was unsafe and never should have been put on the market.
But if the user of the 3D printer is a hobbyist in a basement, making parts for, say, an antique car or a firearm, the equation is different. Under traditional liability law, the home-based hobbyist would not have the same exposure as a traditional manufacturer because the hobbyist does not manufacture in the traditional sense, with a product that is systematically sold to a market for a profit.
But 3D printing, in the hands of the home-based hobbyist, could greatly increase the danger of defective products because of the vast number and variety of products that can be made.
Typical of such entrepreneurial initiatives at law firms, the 3D practice area has not generated that much work yet. It’s too new, Beck says. A handful of traditional manufacturers have asked the firm for advice on how they might protect themselves from lawsuits involving 3D products, though nothing yet in the way of big-ticket litigation.
The bet at Reed Smith seems to be that will change, and soon.