3D Print Legal Task Force with Farah Tabibkhoei of Reed Smith LLP

 

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3D Print Legal Task Force with Farah Tabibkhoei of Reed Smith LLP

 

Farah, thank you so much for joining us today.

My pleasure, thanks for having me.

I know this sounds weird but we actually like to talk about 3D print legal issues. I know that sounds really strange, doesn’t that?

It does. Do you have a legal background?

No. We have a bit of legal experience, way too much. We’re curious. We were pretty excited about getting to talk with you today because I think you are doing some interesting things. Let’s start there. Reed Smith and you are a founding member of a task force on 3D print legal issues, if I’m correct, exploring what’s the 3D print legal issues and what the impact is going to be on the legal system overall.

Yes, that’s correct. We started this task force about two years ago. How it started and how I got involved was I didn’t know anything about 3D printing and my husband actually brought it one day and said, “There’s this YouTube video, you should check it out. Have you heard of 3D printing?” I said, “No.” I can’t really wrap my head around it. I watched the YouTube video and it was of Dr. Atala from Wake Forest talking about potentially one day being able to 3D print organs and working on a 3D printed kidney. It really peeked my interest to find out that there’s this technology that’s really changing the way we can make products and skin and organs. That’s how I became interested in it.

Is your legal background in the medical side or in product liability? What is it more on?

I’m in the complex litigation group so I do a lot of litigation around business disputes. Most of my career, I would say starting from the beginning, I’ve always done product liability defense. Anytime a medical device manufacturer has a product recall, I’m defending them in that litigation.

Now we’re even more excited. We’ve been saying for some time, we’ve been doing this podcast for more than two years now. It’s one of our areas of interest, the fact that we are product designers who utilize 3D printing. We see a lot of the effects. We’ve been designing products for mass market retail, for consumer use so we don’t really do it in the medical. In fact, that’s our area we have no experience. We don’t do anything that requires FDA approval. We’re like, “We just don’t do that,” but the reality is because it takes so long and there’s so much liability and there’s so much complexity to it. That’s why we chose not to do it. It was a conscious choice. We pretty much do any other kind of product. We’ve been doing that for 25 years in product design and development so we’ve seen a lot of things go wrong. We’ve seen a lot of issues.

We’ve even helped clients who had massive product recalls that almost cut $20 million out of their bottom line for a year’s revenue. We see those things happen and that’s when we’re called in to help. We’re on that side of it. We came to using 3D printing going, “I think they don’t even know the possibility,” because you’ve got a bunch of designers right now when you look at the stuff on Thingiverse and Shapeways and other places. These are designers in a garage some place or in their home office and they don’t necessarily have the background we have. The idea that kids might choke on this or things might fall apart or somebody could get injured, it probably hasn’t occurred to them yet and the laws haven’t caught up yet either. This is a tremendous interest to us, there’s not a lot of information from what I read in your white paper, that it’s even clear because there hasn’t even been a case put forward yet.

As lawyers, we recognize and we’ve seen this over and over again with the internet, with music streaming, drones, self-driving cars. The law really is slow to catch up with the technology but we really want to be on the forefront of it, monitoring and at least thinking based on traditional product liability principles; what claims could plaintiffs potentially bring and how do companies or anybody using 3D printing defend themselves. With 3D printing, we’ve really seen it change the supply chain. Now you have a bunch of new actors in the supply chain who could potentially be liable depending on what route you go. There could be the service bureau that prints the device, like Shapeways or Sculpteo. There could be the consumer who actually presses print on the printer, the CAD file designer and on and on and on. This is something that’s really of interest to us. We haven’t see a lot of laws or regulations with respect to products other than I would say, guns. I think the government, state and federal, are starting to look at this issue and being somewhat concerned with the safety ramifications that are there.

I wrote an article about California’s law changes that they made to reference 3D printing as a potential gun source. I thought that was really an interesting way to go about it. I’m not coming out on either side on the gun lobby or whatever you want to call it. I thought they realized that they had archaic legal language in the way the law was written. It wouldn’t cover 3D printed guns at all. They wouldn’t be regulated so they wouldn’t be able to arrest anyone or do anything if they didn’t change the language. They just changed the minor part of the language to accommodate that and broaden the law. I thought, “That was a fast and interesting way to do that.”

I’m just wondering how they’ll be able to enforce it because I know part of that law is that you have to engrave a serial number and then have a metal chip in there so that it can be detected through a metal detector. Unless somebody is there actually searching bags, they could see the shape as it’s going through security and TSA, but I’m just wondering how effective it will be in really monitoring and regulating these weapons.

I heard an interesting take on that, which has really surprised me actually. I heard from someone in law enforcement that they were thrilled about it because when everything happened in San Bernardino with the shooting that happened there, they were really afraid that they were going to go into a garage and open up and find a 3D printer and guns. Sometimes they don’t know what they’re going to find when they conduct a raid. If you were to find something like that and then not be able to arrest them, because technically it’s not categorized as a firearm? Because that was the way the law was written, it wasn’t specified, it wasn’t technically a firearm. It was plastic as far as they were concerned. Because of that, it made them so that they would be able to press charges if there was that kind of a raid situation. They actually were quite pleased with the expansion of that law. I agree with you that the idea of it being regulated in another way probably isn’t likely at this stage.

I’m sure the regulations will evolve if we see people printing different types of weapons. They’ll have to take that into account as well. I heard a story about them using 3D scanning and printing that prints somebody’s fingerprint to unlock an iPhone. It’s just amazing what this technology is doing in terms of forensics as well and helping solve crimes.

Did that work? Were they able to successfully 3D print someone’s fingerprint and have it unlock an iPhone?

They didn’t say that in the article. I think they just said that the FBI had asked that it be done but I don’t know how effective it actually was.

I think in some processes it might be. I wonder if the reason we haven’t heard about it is because they’re trying to keep it quiet. The FDA came out with their role in 3D printing and they call it the 3Rs: regulate, research and resource. I think that’s an interesting thing that may happen in the regular product liability overall in general. When a regulation is going to happen or is there going to be some amount of self-regulation and that’s really the biggest thing because right now we’re just sitting in a bunch of research stages here.

I know that the FDA had a symposium in October of 2014. It was really an effort for them to understand the risks behind 3D printing. They invited executives from companies, academics, scientists, all to get together and talk about the technical considerations behind 3D printing. I think that’s a great first step in really understanding the technology and how to regulate it. Since then they issued a technical guidance. It’s not law, it’s not regulation or binding but it does provide some technical guidance on design and manufacturing, which is great. I think we’re hoping to see more of that but I think at this point the FDA is treating 3D printed medical devices just like any other medical device in terms of clearing or approving them for the market. Until they really see something innovative that doesn’t fit within their framework, that’s when will start to see more clear guidance from them.

I’m curious, can you think of any particular really surprising event or story that you’ve experienced regarding 3D printing and the application of the law that really was not appropriate. Obviously, the law didn’t consider it. Can you think of a real good example of one that you’ve seen?

I can think of a bunch of hypotheticals. As far as monitoring these pieces, we have seen some instances of 3D printers causing injury. For example, there was a story about a 3D printer in a Massachusetts plant that was using combustible powders that exploded and injured some workers who were working at the plant. OSEA actually stepped in and charged the company and they were subjected to about $64,000 in penalties. That’s something that I could potentially see happening. What I haven’t seen happen which I anticipate may one day is when you’re dealing with medical devices and 3D printing and potentially sending someone’s confidential medical information from a computer to a printer. That could be things like their measurements for a medical device or anything like that. You’re really dealing with sensitive information that’s regulated by HIPAA.

We’ve been hearing more and more about cyber security attacks and Ransomware. I think that is something that companies should really be paying attention to, how do you keep that data safe when you’re working with 3D printing? Because now, it’s not just the product that might malfunction. The data is really the product now and it’s being transmitted digitally so quickly. It’s very vulnerable. I think that is definitely an area that we should keep an eye on in terms of vulnerabilities and high risk.

Not just from data privacy, but manipulation of the data could also occur which could be criminal at that stage. We hear this all the time, intellectual property issues of course of having the transfer of data happening when you’re printing somebody at some other source. Are they in control of that data? Is that data at risk? Are my design files, because I’m working on a pre-launch and it’s not quite public record yet, right?

Yeah, exactly. When you’re talking about a product that you’re just working on a prototype, you want to make sure that your IP is safe, especially when you’re sending it to be printed remotely. My husband, he’s an inventor and he has used 3D printing to print his prototype. Not having a legal background like a lot of consumers, I don’t think those are issues he’s really thinking about but they’re certainly out there. When you’re using a service bureau, it’s really hard to monitor what they’re doing with your data, who is having access to it, etc. I think that’s where the contracts and non-disclosure agreements really come in to play.

We’ve actually dealt with this on and on over the course of our 25-year-career in product development, so we have issues all the time with factories in Asia and other places. We’ve seen it happen, which concerned us with some of the 3D print bureaus too. We’ll go to a tradeshow and we’ll be like, “Wow,” and they’d say, “That’s one of our clients’ designs.” I was like, “Did you get permission to print that and show it here at the show?” Because I don’t want to then photograph it and put it on our blog because that’s perpetrating that further along. We want to honor the original designers, that’s part of our mission here. You look at all of that and that’s a big issue that they don’t even think twice about it. They’re like, “It was a really cool design we printed.” “Yeah, but it didn’t belong to you,” ownership and all of that.

I read in your white paper where you defined five grey areas, I guess would be the way I would talk and the law does not like grey areas, I’m sure. Definitions of these items are really what is going to have to play out at some point along the way but right now they’re grey areas. Number one, what is the product? Is the product the final print? Is the product the data? Where’s the product? Secondly, where is the sale occurring? It’s in commerce that the liability tends to happen, that’s where the money is. Who’s making the money off of it? Is it the service bureau? Is it the designer? Who’s getting a piece of it? What percentage is there? Who’s the real manufacturer? Is it the consumer themselves if they’re just downloading a file or is it a service bureau? Who’s the person? Identification, we know on products that we design that IDs are required by law like country of origin and certain materials require identification, materials and warnings are required as well. Are there any regulation or compliance requirements at this stage? These are all unknowns.

I don’t know if a lot of people know that if you’re talking about strict liability for example, there is this certain definition of a product that’s usually thought of as the tangible item. When you’re dealing with a digital design that’s no longer really tangible, it becomes a question. Is that the product? Is it the end product that actually gets printed? We’re also talking about commercial sellers. It’s not clear what it takes to be a commercial seller. There’s definitely no bright line. I’m sure you’d have to take into account some type of revenue and the volume of sales and marketing efforts. There’s really no test. It will definitely be interesting.

I know people may have an Etsy page or use Sculpteo to sell their products there. It’s not really clear exactly when they crossed the line and become a commercial seller for purposes of that doctrine or if they really consider the manufacturer when you have so many players and somebody else is coming up with the design and somebody else actually handling and making the end product. I think it’s great that 3D printing has come at such a great time because we’re really seeing this maker culture where it’s now really cool to make things. People want to get involved and learn how to create unique items with their own input. If you’re an inventor and you don’t know anything about prototyping or injection molding, you can just walk to a brick and mortar 3D printing store, go online and figure out how to make your actual product come to life. As much as there are legal questions, it’s really spawned a lot of creativity I think.

It definitely has spawned a lot of creativity. I think making more realistic and functional prototypes and things much more reachable to an average person where it used to be you have to be a serious corporation that had a lot of resources to hire traditional model makers and things in order to make something. I remember back when Tracy worked at Herman Miller, the model shop that they had there, they could have made a handmade car with all the tools they had. But it was a small army of people that were employed and millions of dollars of equipment are invested. Now, you can do things really in a much less expensive way. It has democratized that in a way, which I think is wonderful.

I still get concerned, and not that I want to scare anybody off from 3D printing because I don’t at all but there’s going to be a legal case at some point that’s a huge can of worms where even though Shapeways may have sold it, that the material manufacturer gets dragged into it, the manufacturer of the actual machine that Shapeways use gets dragged into it. Then the person that came up with the original design did it. I guarantee you that designer is probably not going to have errors and omissions insurance. It seems like a disaster waiting to happen.

We’ve talked about this before actually quite some time ago. You mention on your website that there are insurance issues related to 3D printing and we’ve significantly found that. We’re fairly savvy on product liability and other things, we investigated what would our insurance cover if we 3D printed some items and sold them to a client. They were like, “If you’re 3D printing, we can’t even cover you. We don’t have an insurance policy to cover anyone who manufactures by a 3D printing.” It was really an ordeal. The traditional systems, if it’s unknown, it’s a risk.

Definitely. Did they have a 3D printing exclusion in the policy or was that what they were telling you?

Basically, they wouldn’t issue a policy. They wouldn’t even quote a policy. This was about two years ago, I know a lot has changed since then and I’m quite sure that they’ve resolved these issues. 3D printing was just so new, they didn’t have a box they could check off in their underrating system that said, “3D printing, we know what the risk is. Here assign this rate to it.” It’s like they weren’t touching it with a ten-foot pole. It was not only 3D printing but actually if we had a business that had a blog, that was the other thing. They wouldn’t give you general liability coverage if you had a blog. We were like, “We have a podcast and we technically write down what is said on the podcast.” It is technically a blog but our site is not a blog. It was the weirdest thing ever. We were like, “These companies are really behind the times, behind the technology.”

That’s interesting that you’ve said that it was two years ago, because I think they’re still at that point where they’re grappling and struggling with how you ensure 3D printing risks. I was just talking to a client who said they met with their insurance company and insurance agent, which is what we encourage our clients to do, is really to have that talk with them, have a discussion so they’re aware. She said, “We felt like we were really teaching them more about 3D printing and the risks and they really had no idea what those were.” It sounds like there hasn’t been much change but you can still look at your traditional insurance policies and have them review to see what in there can cover your losses. I think we’re going to start to see more 3D printing exclusions before we start seeing 3D printing specific policies.

That’s not good, that’s worse. At least if it’s gray and they didn’t say it. I’m sure that a site as big as Thingiverse, which is MakerBot’s file repository, and for the most part the vast majority of files, people can download and print on their own for free. I’m sure they have terms of use and some limit of liability stated on the website, “If you’re going to use the site, you’re going to download these files, then we’re not responsible if you get hurt or whatever.” Still, at some point you’d think that having hundreds of thousands of files on there that people are going to be able to print on their own and interact with would be a potentially huge liability.

I would think so too. I think the insurance companies are going to catch on at some point. They’re going to see nobody’s really insuring these risks. Then there will all of a sudden be this market and this need for that type of policy. That’s when they’ll step in. It doesn’t mean that there isn’t coverage. If you have a loss, I think that it’s something that you just have to look at your current policy and then see whether it really can fit and get insurance that way. Then definitely make sure that your contracts are tight with your vendors, your customers and whoever you’re doing business with.

I think that’s where from the individual designer side is, we talked about this maker community, that they really don’t realize that they’re not covered. We don’t sell our designs on any site for really good reasons. One is that those sites push back on to the designer to be liable for it as well as to the user to be liable. Actually they push out in both directions. It leaves up this gray area of, is the user going to sue you as the designer or what’s going to happen there if something goes wrong?

Also for us, there’s an IP loss situation where they’re just giving files for download and we like to protect our intellectual property in a different way. We want to make sure someone can’t change the settings on the machine and then potentially make that product more dangerous, weaker or able to break apart into pieces. When we can’t control the final file that goes to the 3D print machine, then we really cannot control the quality of that product output. We’re really sensitive to that. I think that most people don’t understand that they actually are probably accepting the liability when they’re posting their stuff up on Shapeways or Sculpteo or any one of these service bureaus, Thingiverse especially. I’ve read their terms of use pretty recently.

I’m sure a lot of people just don’t read it and they click yes to be able to use the site. They’re not really sure what they’re agreeing to there.

Just this idea of what the product is. At the end of the day for us, it’s whoever prints it out. That’s the product. We care about its integrity all the way through the process. From the standpoint of intellectual property, we sat back and really looked at that and we actually wish they would treat it less like a product in that state and allow us to create to have our code, our file, be able to be copyrightable rather than having to file a patent on things. That’s really where we wish the law would go the other direction from a designer standpoint.

The reality is that it’s impossible for us to patent every 3D print design we were to do if at the end of the day they’re functional and not just sculptural. Because there are just too many and there are too many iterations and too many variations on them and not cost effective of course. Design patents, we’re just not a huge fan of them. We really see that as a big issue. We’ve had this problem with our products in Asia where we had what was a decorative design of a chair, a stitch pattern that we created on an office chair. It was being sold in Staples by our client, so they had been selling there for maybe eighteen months, almost two years, something like that.

The buy plan from Staples said, “We want to buy this exact chair pretty much not exactly the same so we don’t trip over the liability and put out a buy plan and a direct buy into Asia,” and of course, the factories all just duplicated it. We have no say, we have no way to stop it because in this case, filing design patents they would have just changed one minor thing and it wouldn’t have been the same. Our clients never do that. Even if we recommend it, they don’t do it. It happens all the time. We can see with the speed of iterations and the minor modifications you can make in 3D printing, it would be impossible to deal with the design patent levels.

Copyright I think does apply in a lot of ways but it’s not that clear that it applies to us. It needs to be tested. I actually feel pretty confident that copyright is probably the digital designer’s friend more than not. It’s yet another gray area, another yet to be defined.

Definitely a theme here. Do you ever use open source software or put a design out there and then encourage other people to make improvements to it?

No, we don’t. We have put one design out there as part of a promotion that people are allowed to download and use from Thingiverse. It was a particular promotion. We didn’t sell it. We’ve been really cautious and really sitting back but we also feel very confident in that one of the things that we do really well here is that we understand the product world and the digital design world. Being able to combine those two things to make safer products make products that retail actually might carry on in an on demand world in the future. I think we’re a likely source for that and that’s really where we wanted to position ourselves as designers in this marketplace, where a lot of people are more on the maker side of things or on completely the commercial side of things using it for prototyping only.

We sit in the middle of that and we really think that the future is a world in which that product is printed on demand by whoever it might be. It might be by Target, it might be by Walmart, it might be by a service bureau, who knows what it is. It might be in their warehouses at Amazon. To us, at the end of the day it doesn’t matter and so our goal is to make sure that we design products that have the structural integrity, the inability to adjust them when you print them so that they can be printed as designed. That way that’s the least amount of liability. Of course, as designers we either have contractual liability clauses with our clients and/or we carry errors and omissions.

In terms of structural integrity, I think the technology is just moving at such a fast pace. There’s going to be so much more potential for different types of products and materials and strengths that these products will have. I think because the laws behind, that’s also in a way encouraging innovation because there aren’t that many regulations so it’s like the wild, wild west. We are seeing that some groups, like Underwriters Laboratories, they are starting to put together committees built around safety standards for 3D printing, which I’m sure you’re aware of or are abiding by. It’s such early stages right now, I think there’s definitely a need and they’re definitely working on it.

I think there’s just big a need though. We’re very familiar with all of UL standards and stuff on the various product types and categories. But I think that most of the people out there putting out design files or putting out designs and printing them is they don’t realize that they’re subject to a whole other set of test regulations because they never made products in the toy world before or things like that. That is really where an awareness in the 3D print community needs to happen a little. There might be test standards out there that you don’t even know about, choking standards and things like that, regulations for creating toys. There’s a lot higher in that area for us in the world of furniture. There’s a whole load of test standards in furniture. We live that world and know how hefty it can get.

I just hope that as we come out of this unregulated Wild West as it may be today that there is some understanding and allowance, if you will, for individual makers and independent designers. I’d hate it if we have this wonderful technology that brings manufacturing of parts to your desktop out of whatever material, it opens up this great opportunity for people that just gets shut down by being required to have insurance that’s so expensive, you might as well have manufactured it in an old traditional process in the first place. Errors and omissions is really expensive.

Even if you take the sales component out of it, if you’re just a hobbyist who loves 3D printing and you’re using it in your garage, there are still these dangers out there. I’ve heard about a teenager using a 3D printer for an art project. He sprayed hairspray on to the build platform to make the product stick and then it exploded. Even if the law says, “We’re going to make an exemption for individual makers who are not using 3D printing for commercial use,” I think it’s still really important to have those standards and warnings out there for people who are not thinking about legal issues but just for their safety and kids and 3D printed toys. I think it’s great seeing 3D printers being used at schools right now. I think that generation is going to go grow up and this stuff is going to be easy for them, versus now I think it’s taking a longer time to take hold among consumers than it is with commercial industries and companies.

It’s so funny you say that, Farah, that just made me smile because my daughter uses a 3D printer. She’s eight. She uses a 3D printer to create these little tiny polar bear figurines for some school project she was going to do. We downloaded them and she printed them off. She made one really tiny one and then one bigger ones, so it was like a mother and a baby. We have a three-year-old at home and she caught the three-year-old with the little one in her hand and she said, “You can’t have that. You’ll choke on that.” We have her so paranoid that there are rules. We actually have a little tube, we got it at a tradeshow somewhere from UL. It was a little plastic tube and you can drop the parts in there and if they’re too small they drop to the bottom of it and if they’re not then they don’t fit in the tube, they’re perfectly safe and not a choking hazard. She actually has used it before. I thought that was so funny. They’re going to just grow up in understanding this is okay and this isn’t okay.

When I was growing up we had the easy bake ovens and I think Mattel actually had a toy that was similar to a 3D printer but it used a Play-Doh or something like that. It’s great to see these toys coming back and it just being normal for these kids to be using this type of technology to create art projects or whatever it is they’re working on.

It’s interesting you mentioned Mattel because their 3D printer was supposed to come out last year. It was supposed to be earlier last year, then it was the end of last year and it still hasn’t shown up. The reality is that they’re applying the same standards that they apply to all their products. As you get into the complexities of that, that means a lot of testing and a lot of exploration and making sure that the products that are produced on there and the variations that the user has with it doesn’t allow for something to become very dangerous. This is our point to why we’re cautious, is that because they have intimate understanding of those rules and regulations and all of those things they have a higher obligation to comply, even though it may not be clear today but to set that standard. That’s how we feel personally about the product liability as well, we have a higher degree of commitment to our community to make sure that we’re designing the safest products possible.

I think now with there not being clear rules, it’s so important that we use our judgment and be almost overly cautious when making things and making sure that they’re complying with industry standards.

Farah, I am so happy we got to talk to you about all of these today. Please keep us updated and send us messages if there are some cases that comes up or anything. We’d love to chat again about it. We’re always curious as to what might be going on in the legal system here.

I definitely will. We’re definitely monitoring it from all angles with our task force in all areas as you saw on the white paper. I’ll definitely keep you posted.

Thank you so much.

Thank you so much for having me, Tom and Tracy.

3D Print Legal Task Force – Final Thoughts

When 3D printing meets traditional insurance and traditional retail, that’s what we’re having; disruptive technology meets traditional manufacturing meets traditional and it’s causing chaos. Hasn’t that happened many times in history? It has to. It happened in the music industry once as recorded music came to be. The laws didn’t work and they did have to rewrite the laws. Now, it’s probably happened with computers when all sorts of issues with computers that didn’t exist when laws were written. Now, 3D printing is another disruptive technology that is going to necessitate new approaches to laws, insurance, regulations, safety issues, all sorts of things.

That’s exactly what they’re studying over at their 3D print legal task force at Reed Smith, the implications of commercial litigation, what’s going to happen when your company versus company, you’re litigating that, product liability issues, insurance issues, intellectual property issues of course as we’re well aware. Data privacy, I wouldn’t have considered it as much but I guess once you hit into HIPAA in medical, it gets much more serious there. I think of data privacy as a concern for everyone overall but you don’t really think about it in terms of greater liability but it should be on everyone’s forefront with what’s going on in the world today.

3DHeals, they’ve got to be dealing with this on the forefront too. Of course, we’ve talked about before, OSEA, environmental safety, all of those issues of regulations and an importance of creating a safe workplace and things like that and really thinking even about going as far as if you’re going to put in a retail installation of a kiosk that prints or something, when you’ve got to have it be safe. It can’t be leeching out any kind of toxins. You have to be thinking about all these things. There is an application and that’s really where we want people to say, “Go ahead and experiment and have it at home.” It’s fairly safe for those things.

We’re personally cautious about ABS in our home office environment because we have kids and we just don’t want that kind of exposure and we don’t have quite the proper ventilation for it. I don’t even want it for me. I don’t want to smell it and I get headaches as it is when I smell some chemicals. We’re really cautious about that from that standpoint but we just use practical knowledge about obviously, if you’re melting something, something is going to off-gas. It seems very practical there but maybe not everybody thinks that way. As Farah was saying, maybe don’t spray something flammable like hairspray near a heated bed. Can you imagine if that ended up being litigation? It’s like the Aqua Net case.

We’ve actually used and tested that hairspray on a build plate to help the material stick when you start printing. But you don’t spray it when the plate is on directly at like all the electronics, maybe that’s what happened in that particular case. You’ve got to be thinking about these things. Certainly, we wouldn’t spray a heated bed because then you’d be smelling that hairspray, it would be horrible. There are also those considerations.

This is something we’ve learned over years and years of doing products, you cannot account for the misuse of your product that will happen. You cannot be thinking about it. That’s what insurance is for. That’s why we have unfortunately a lot of legal system things going on in various industries. That’s why these things come about because that misuse teaches you about how you should warn people, about how you didn’t even think your product might be used. It also really comes to, at the end of the day, somebody is going to be liable. That’s the way our world works unfortunately. Especially in the United States, those of you in other countries that don’t have quite as big of litigation problem as we do here, you’re lucky. In the US, there’s too much litigation. It does come down to it and we have a whole industry of attorneys that make a living out of it. There are these all sorts of issues.

I do think that there is a very real need though for companies maybe who are selling and now they happen to be using 3D printing even in the development process of a product. Maybe the product isn’t manufactured using 3D printing but it was developed using it. That’s even got to inject a little bit of uncertainty there and insurance industry hates uncertainty. The movie Sully, there they’re pointing out that they’ve got these computer simulations. They have all these data that was recorded by the flight recorders and initially when they analyzed the data, the data said the pilot could have landed the plane back at the airport. He didn’t have to land it. It was the pilot error that caused the accident. We discovered that actually no, it’s the data because the data doesn’t account for real world situations. Even some of the data was just flat out wrong.

We see that in all the time. We see a lot of this happens when they do the plastic simulations of how the plastic’s impact will be, like an FEA within a CAD program. We’ve seen that wrong so many times. It’s not a bad thing to do when you are uncertain about something and you think, “Should I make this bigger? Should I make it smaller?” and just be in consideration of it. But to use it as a hard and fast guideline of, “It’s going to work,” we’ve seen it go both ways. We’ve seen an FEA result that the product never failed at and even though it failed in the FEA. We’ve seen the FEA say it was going to work perfectly and we’ve seen it absolutely completely fall apart in the product world.

When you don’t understand the real world, how someone’s really using that product, how it’s really being applied, you don’t have that kind of understanding of it. You cannot risk analysis it through just a simulation. It doesn’t work like that. I think it’s so important that they’re out there looking for applied cases, they’re looking for case law, they’re looking for things that are happening out there and they’re being aware. It makes them much better advisors to their clients. I think this is really smart.

They’re out there researching, trying to be in front of potential issues that are going to help them defend their clients or fight for their clients’ rights. If somebody says, “You’re liable. You didn’t do your job.” They may be able to say, “Wait a second, no, they did their due diligence. They did the best they could. They’re not liable.” Whatever the case may be, I’m sure they end up prosecuting some cases for clients and defending other cases for clients in other areas. Them being more knowledgeable about it is absolutely what they need to do.

I think it makes them really competitive as a firm to consider when you’re looking at, “Should I hire a firm for our corporate attorneys? Should I hire a firm for my liability or advisors?” You’ve got someone who’s really looking at what the future impact might be on your industry or on your particular product lines and things like that. I think that’s really critically important nowadays. I think we have to get into a situation at which this isn’t just about makers, while it’s wonderful that makers have really helped make things, but it’s the application of this in the future. It’s really going to change things and in that application comes a lot of things that have to work themselves out. Hopefully it doesn’t hinder creativity and exploration and experimentation. That’s what I hope it doesn’t hurt.

Just to be thinking about that, there’s no money in it right now for the makers. For most of the makers, there’s no money. There’s likely not to be a lot of heavy litigation unless something’s really agreed as a danger or something like that. I have to say that most of the makers out there are fairly safe. But again, that’s why we tread on the side of being a little more cautious than most, because we have knowledge. Because we have that knowledge, that would make us more liable and it makes us need to be more responsible for our clients and for the people we advise.

It’s great to meet Farah and talk with her about 3D print legal issues. I look forward to having her as a guest on the show again in the future especially as we see things change and develop. A lot happens in a half a year or a year. There’s been a lot of case law coming up in all sorts of areas that are impacting intellectual property and many other things that have been going on recently. I’m definitely seeing that there may be more coming up in the future and we should keep an eye on that. I am looking forward to that as well.

You can find us on social media, @3DStartpoint. We’d love to hear your thoughts and views on insurance liability, the legal system, let’s keep it at 3D printing though. Thanks so much for listening, everybody. We’ll be back next time. This has been Tom and Tracy on the WTFFF 3D Printing Podcast.

Important Links

• Reed Smith
• YouTube video of Dr. Atala
• Thingiverse
• Shapeways
• Sculpteo
• Reed Smith white paper
• 3DHeals
• Tracy’s Inc article – Guns: The Dark Side of 3D Printing Arrives in Reno Airport

 

About Farah Tabibkhoei

Farah is a senior associate in Reed Smith‘s Complex Litigation Group. She represents product manufacturers and health plans in areas of product liability, 3D printing, and managed care. She is a member of Reed Smith’s 3D Printing Task Force and closely monitors the complex legal and regulatory issues arising from additive manufacturing, affecting clients across a wide range of industries from healthcare to manufacturing to automotive, to identify risk, develop risk management strategies, and help shape laws and regulations surrounding 3D printing.

Website: www.reedsmith.com/

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