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Whose fault is it if a 3D-printed product fails?

June 13, 2016
And how can you protect your designs? Intellectual property lawyer Maya Eckstein shares her perspective.

Maya Eckstein is head of the intellectual property practice group and the 3D printing practice group at Hunton & Williams LLP, based in Richmond, VA. She has authored articles on the legal ramifications of 3D printing, including intellectual property (IP) issues that arise with design files and the evolving landscape of product liability. She spoke with Plant Services about how 3D printing is changing sourcing of spare parts, growing counterfeiting threats, and the tough questions that manufacturers need to ask themselves as the adoption of 3D printing in industrial settings accelerates.

PS: Can you talk a little about 3D printing’s legal and liability issues among the user, the manufacturer, and the designer, especially in the event that something goes wrong?

ME: That’s the biggest question out there right now, and it’s still unanswered. Products liability law traditionally looks to the manufacturer for liability. But who is the manufacturer?

When you get a (custom) order for a specific type of part, with specifications, measurements, and so on that go beyond just the standard, who is the manufacturer in that situation? Is it the entity that supplied the CAD file, or is the entity that printed from the CAD file? Or is it even the 3D printer itself and the company that sold that printer? Now, if I’m the 3D printer manufacturer, my agreement with my customers when I sell that printer is hands-off on liability. As long as the printer is working in the way that it’s supposed to be working when I sold it to you – there are no malfunctions in it – then it should be hands-off for me.

But then if you go down the line a little bit, then you have the shop that’s doing the printing, and they received the specifications from somebody else, and then after it’s printed something goes wrong, then where does liability lie? That’s a grayer area.

PS: Where is the body of knowledge when it comes to finding obsolete parts? With a distributor?

ME: I don’t know the answer to that specifically, but let me raise a related issue. Once we go this route fully, where we’re not keeping obsolete parts on the shelves just in case somebody needs them one day, everything gets wrapped up into the CAD file that’s used for 3D printing, and that CAD file becomes extremely valuable – it becomes potentially the most valuable piece of IP. It’s kind of like, for certain items, the formula for Coca-Cola.

How do you protect that? How do you prevent others from improperly accessing that? And if you’re going to have somebody, whether it’s a distributor or whomever, who maintains the files for printing obsolete parts, how do you ensure that they will maintain them appropriately so that they can’t be improperly accessed or they won’t be given to a counterfeiter?

So you’ve got the IP issues involved with the CAD file itself and then the security issues for the file, but then there are the cybersecurity issues, too. There’s a site called The Pirate Bay, which is a torrent site – it has all sorts of downloadables that you’re not supposed to be able to get – they have a section devoted to 3D printing files.

PS: Let’s say on The Pirate Bay, if they’ve got a CAD file for a stainless-steel cable tie and the OEM doesn’t have that part in play anymore, what’s to stop a company from seeking that out? It would seem to put the onus on the manufacturers to write the appropriate contracts whenever they give out that file, because really it’s theirs.

ME: Absolutely, they have to protect it. But is that enough? For certain products, companies are not going to be comfortable saying, “I have a contract, so if this other company lets it out, then I have a breach-of-contract claim against them.” OK, you have a breach-of-contract claim, but your product is now out there; the file is accessible to anybody. The damages go beyond breach of contract. Do you find ways to provide access to the appropriate parties that don’t put the file in their hands? Do you put anti-circumvention-type technology on the files themselves?

Companies really do need to consider the IP and liability rights within these relationships regardless of where in the chain their relationship stands. The other thing is counterfeiting: I think counterfeiting is going to be a bigger problem than it already is. Any sophisticated counterfeiter is going to be able to purchase the right machine and get their hands on the files and then start printing off these counterfeit parts that are going to look really, really good.

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