3D printing comes of age

We have all read of them in the papers: 3D printed handguns, musical instruments, grandfather clocks (with full machinery), robotic insects hovering on their own – you name it. It seems that with enough time and effort almost anything can be 3D printed these days, and 3D printing has become the weapon of choice for DIYers.

But what are the legal implications of 3D printing and how will this technology impact your business? While you may not do it yet, it is possible that you will start buying and selling products using 3D printing technology at some point in your business cycle.

Who is at fault for product liability?

One area of law where 3D printing may have potentially far-reaching ramifications is product liability. A 3D printed object can prove to be defective for a whole battery of reasons, such as:

  • Faulty original object
  • Faulty model file
  • Corrupted copy of a model file
  • Faulty printer
  • Faulty printing material
  • Human error

You do not need to be a fortune teller to predict that courts will be asked to shed light on some tricky liability questions in the not-too-distant future.

Protect yourself through contract

Consumers are naturally protected by imperative provisions that sellers cannot contractually deviate from. But in the business-to-business context, it is possible to have a say on your liability position in both individual contracts and chains of contracts. As a vendor, you should negotiate a disclaimer, non-liability clause or cap – or otherwise limit your liability. You should also seek an indemnity for third-party claims. Be sure to include an arbitration clause so that any possible dispute remains confidential.

If you are the buyer, the indemnity clause should function the other way around. It is in your interest to minimise the vendor’s limitations of liability and try to achieve liability caps that still provide some comfort if liability is eventually triggered.

Attempt to get a guarantee and certain key warranties by the vendor concerning the characteristics of the products. And if in doubt, seek advice – preferably beforehand. In the long run, it is normally the most economically advantageous thing to do.

Who owns the rights to the model and end product?

3D printing also has several implications in terms of intellectual property law. The main ones are as follows:

Copyright. The digital models used for printing a three-dimensional object may constitute subject matter protected by copyright. Under the Finnish Copyright Act, descriptive drawings and graphically or three-dimensionally executed works are considered literary in nature. Future case law will show whether parallels can be drawn between such a literary work and a physical object. The physical object may be copyright-protected in and of itself, but the high threshold of originality for articles of utility mean that protection is more difficult to attain than in the area of fine art.

Designs. Anyone who has created a design may, through registration, obtain the exclusive right to it. The exclusive right to a design implies that no person other than the right holder is entitled to use the design without a licence, except for private use for non-commercial purposes. The right holder’s entitlement to prohibit usage such as 3D printing, however, is restricted by the fact a design right does not cover features of appearance of a product solely dictated by its technical function.

Trade marks. Any kind of mark that can be represented graphically, including the shape of goods or of their packaging, may be a trade mark. The effect of the rights in a trade mark is that only the proprietor may use it in business. It follows that manufacturing an object that in one form or another reproduces other proprietor’s two- or three-dimensional trade mark requires a licence, provided that the object is manufactured for business purposes. As with designs, however, the exclusive right in a trade mark does not apply to any part of the mark mainly dictated by functional considerations.

Patents and utility models. Functional considerations belong to the realm of patents and utility models. The exclusive right conferred by a patent or utility model implies that only the proprietor may exploit the protected invention for commercial purposes. Since the term “exploit” covers, among other things, the act of making a protected product, unauthorised 3D printing of such a product is a prima facie infringement. A person distributing protected model files might be liable for a secondary infringement, assuming that the files can be considered the “means” of working an invention referred to in the Finnish Patents Act.

New industrial revolution?

Last year a writer for The Economist argued that the consequences of all the changes that will be brought about by the widespread use of additive manufacturing, more commonly three-dimensional (3D) printing, will amount to a third industrial revolution.

The first revolution began with mechanisation in the late eighteenth century and the second with the introduction of the assembly line in the late twentieth. Now, goes the argument, we are on the threshold of a new era, as the digitisation of manufacturing will transform the way goods are made.

3D printing is a process of making physical objects of virtually any shape from a digital model. The final product is achieved using an additive process where an object is manufactured by depositing material layer by layer. No separate mould is required – the digital model is the virtual mould. A number of different additive processes are used, and the materials that can be printed range from various plastics and ceramics to metal alloys. (Rearden Metal still remains unavailable, but Chinese scientists have begun printing organs with living tissue.)