Jusletter IT

Key topic at this year’s World Economic Forum¹ was the 4^th industrial revolution². It includes additive manufacturing. I would like to share some thoughts on liability for damage caused by 3D-printed objects. First I discuss some legal aspects under product liability law. Then I offer five 3D printing scenarios.

Traditional manufacturing relies on a design-build-deliver model, where roles and responsibilities are well established and delineated between various participants: designers translate needs, producers manufacture the designs, suppliers deliver the products, and end users consume the goods. The manufacturer’s production relies heavily on subtractive manufacturing methods, e.g. grounding, cutting, drilling, milling or lathing. 3D-printing, on the other hand, uses computer-generated designs to reproduce an object through consolidation of materials with an energy source, e.g. polymers, metal or ceramics with a heating element, laser or electron beam. Design and manufacture have expanded beyond the traditional supply chain. With 3D technology, consumers can download designs of objects online³ and so-called prosumers produce and consume their own products.⁴

Product liability means liability of a manufacturer for damage caused by a defective product. It is a liability based on causality⁵, whereas (other) liability law requires fault. There are various requirements under the Product Liability Act (PLA)⁶ giving rise to liability, such as, e.g.: damage, defective product, causality between defective product and damage, qualification as manufacturer,⁷ bringing into circulation, commercial purpose, and professional capacity:⁸

• Damage: The PLA protects against (i) death or injury, or (ii) damage to private property used mainly for personal purpose, caused by a defective product; it does not protect against damage to the product itself (art. 1 PLA). Liability for damage to the product is covered by warranty⁹.
• Defective product: A product is defective if it does not meet legitimate safety expectations, e.g. for its reasonably expected purpose (art. 4 para. 1 lit. b PLA).
• Causality: According to the requirement of adequate causation, a cause only gives rise to liability, if, according the normal cause of events and life experience, it can be expected to cause damage, or at least foster it.
• Manufacturer: The definition of manufacturer is purposely broad so as to extend liability within the supply chain as far as possible. Any person who produces the end product, base material or sub-products, as well as any person delivering the product if this person does not disclose the name of the producer or distributor, is a manufacturer (art. 2 PLA). An assembler of third party sub-products also qualifies as manufacturer. Furthermore, doctrine defines designers as manufacturers, provided their intellectual work is materialised in a product.¹⁰ This definition therefore also includes the supplier of 3D printers, the supplier of 3D printer consumables, the designer of a 3D object, and the seller of a 3D object.
• Bringing into circulation: The manufacturer must intentionally release the product from his domain (art. 5 para. 1 lit. a PLA). As the PLA also covers damage within the supply chain, base material or sub-products are qualified as released into circulation once they have been delivered to a sub-producer or the (final) manufacturer.¹¹
• Commercial purpose and professional capacity¹²: The manufacturer is not liable, if the product was not produced for sale or any other commercial distribution, and if the product was not produced or distributed in the manufacturer’s professional capacity (art. 5 para. 1 lit. c PLA). Commercial purpose means manufacturing for any direct or indirect profit (e.g. advertising). Professional capacity means any profit-driven main or minor occupation.¹³ Liability of private persons is excluded under the PLA.¹⁴

For the PLA to apply, these requirements must be fulfilled cumulatively. The following use case shall be discussed in five different scenarios: X has a 3D-printed bottle that leaks (= defective product). The spilled fluid runs across the table and damages a mobile phone (= damage). It is assumed for this discussion that (i) the causality between the leaking bottle and the damaged mobile phone is given, and (ii) the value of the mobile phone is higher than the deductible of CHF 900.– (art. 6 PLA).

Scenario 1: X designed the bottle himself and printed it on his own 3D printer. The bottle is used by X privately and not sold. Can X claim against the suppliers of the 3D printer or the consumables? Not based on the damage to his mobile phone caused by the leaking bottle he printed. There is no bringing into circulation, no commercial purpose and no professional capacity. But if the 3D printer is defective, catches fire and damages his (private) mobile phone, or if X suffers injuries due to the fire, or if the 3D consumables (e.g. polymer material) are of inferior quality and therefore damage the 3D printer (e.g. printer head), X could claim against the manufacturers of the 3D printer and the 3D consumables based on the PLA.

Scenario 2: X designed the bottle himself. In his free time, X prints a few bottles on his 3D printer and sells them to his friends. A friend suffers damage to his (private) mobile phone due to the spilled liquid. Can his friend sue him for damages? Not under the PLA. X brought the bottles into circulation and sold them, but he did it privately, not professionally.

Scenario 3: X designed the bottle himself. He prints 10’000 bottles professionally and sells them. A customer suffers damage to his (private) mobile phone due to the spilled liquid. Can this customer claim for damages against X under the PLA? Yes. X is the designer and manufacturer of the (defective) bottle. He sells the bottles professionally and for profit.

Scenario 4: X downloads the 3D design of a bottle from a community site based on a creative commons (CC) license (e.g. BY-SA). He prints 10’000 bottles professionally and sells them. A customer suffers damage to his (private) mobile phone due to the spilled liquid. Can this customer claim for damages against X under the PLA? Yes. X is the designer and manufacturer of the (defective) bottle. He sells the bottles professionally for profit. Can the customer also claim against the designer (i.e. supplier of the CAD file) if the bottle defect originated from a design error? Only if the designer used the community site to distribute the design in his professional capacity. Publishing a work under a CC license on a community site does not render the designer’s activity non-professional. The (professional) designer might be advertising his designs, which is qualified as indirect commercial purpose.

Scenario 5: X downloads the design of a bottle from a proprietary platform and pays a license fee. He prints 10’000 bottles professionally and sells them. A customer suffers damage to his (private) mobile phone due to the spilled liquid. Can this customer claim for damages against X under the PLA? Yes. X is the designer and manufacturer of the (defective) bottle. He sells the bottles professionally. Can the customer also claim against the designer (i.e. supplier of the CAD file) if the bottle defect originated from a design error? Yes. According to doctrine, the intellectual property of the design materialised directly in the shape of the 3D-printed bottle and therefore the designer is a sub-producer within the supply chain.

Daniel Ronzani