One of my favorite things to do to relax is to head to my basement workshop and make something out of wood. It’s only a few feet below the real world, but heading down there is like being teleported to a peaceful and tranquil alternate reality. A reality where twitter and cellphones and complaints don’t exist. Just me and a bunch of lumber. And a collection of extraordinarily dangerous tools.
The modern workshop is a veritable smorgasbord of implements that want their pound of flesh. There are miter saws and bandsaws and routers and thickness planers, and all are quite dangerous. But the king of dangerous power tools is the table saw, and the way modern table saws are sold (and how they SHOULD be sold) tell quite a torts story.
A table saw is just what it sounds like, a small table with a large spinning blade emerging from its center. To use it, a woodworker pushes the material he or she wants to cut directly into the teeth of the spinning blade. Even upon immediate inspection a table saw’s danger is immediately apparent. It is a snarling tiger, not a cuddly persian kitten. But the real dangers of a table saw are not immediately apparent.
Most people would think that the way to stay safe is to just steer clear of the spinning blade of death, an enormous amount of accidents every year are caused by a phenomenon called kickback. That’s where the already-cut portion of the wood catches onto the back end of the spinning blade and hurtles at blinding speed towards the operator. And because kickback results in the uncut portion of wood being pulled toward the blade, it also tends to pull the operator’s hands towards the blade. It’s a little hard to describe, so it might be worth watching this video to see kickback in action (note! This person tries to induce kickback on purpose. Which is...an absolutely terrible idea!).
So it’s probably no surprise that over 30,000 people go to an emergency room in the United States every year due to table saw accidents. And according to a study in an emergency medicine journal, table saws are the second leading cause of amputation injuries a year behind doors.
As a result of the melee happening in workshops around the country, a table saw purchased today comes adorned with a variety of safety devices intended to reduces the chances of kickback and other injuries. The most important of these is called a riving knife, which is a stationary blade that attempts to keep cut wood from binding with the back of the spinning saw. Next come anti-kickback pawls, which are little spring-loaded claws that push the wood down towards the table. On top of that there is a blade guard, which is a metal and plastic housing that provides a barrier between a user’s fingers and the saw.
Both the table saw and its instruction manual are absolutely plastered with warnings saying that the saw should never be used without these safety devices. Unfortunately, those warnings represent something of a legal fiction: the manufacturers know very well that saw users will remove these safety devices because they often make it impossible to perform the cuts called for by a particular project (particularly the pawls and blade guard). Responsible operators like me always use the safety devices when we can, but it is not always possible, and the manufacturers seem to acknowledge this by making safety device removal incredibly easy.
If only there were a technology that would allow woodworkers to perform the cuts they want safely. If only. Ah, but there is! A company called SawStop uses an amazing flesh-sensing technology to halt the progress of a spinning blade the moment it touches a human finger. The demonstrations are amazing, and I strongly suggest you see for yourself. If all saws had SawStop technology, literally thousands of amputations a year would be saved. So why don’t all table saws have them now?
Patents. SawStop is the only manufacturer in the United States that is legally allowed to sell such saws due to its intellectual property in the invention. In fact, when Bosch tried to introduce a competing technology called Reaxx, SawStop successfully sued them for patent infringement and prevented the Reaxx saws from reaching the market. Patents and other intellectual property are a form of government-established monopoly, but companies can choose the extent to which they enforce their monopoly. And SawStop has gone to great lengths to enforce their monopoly.
As a result, the least expensive way to buy a table saw that will not amputate your appendages is a $1300 SawStop portable model. Portable table saws without the technology can be had for literally 1/10th the price, with even high quality table saws costing closer to $500. So in the table saw world, safety comes at an extraordinary premium.
And that premium might be spread across the market if SawStop has its way and the United States Consumer Products Safety Commission makes rules requiring all new table saws to have flesh-sensing technologies. From a consumer products safety perspective, this is as close to a no-brainer as possible. There is a technology that can save literally thousands of people a year from being permanently disfigured. Juries have found that the absence of such a technology by default makes a manufacturer negligent. In a recent Massachusetts case, the victim of the table saw accident successfully sued Ryobi for designing a saw that does not use SawStop technology (although the jury did determine that he was 35% responsible for the accident because he disabled all of the safety features). His lawyer argued that because Ryobi passed on an opportunity to buy the underlying SawStop intellectual property in 2000, it rendered all of its future designs defective. Given that a jury would deem tools without this safety feature defective per se underlines how impactful the technology is, and should make the decision by the Consumer Products Safety Commission easy. With absolutely no pun intended, the decision should be clear cut.
But because SawStop has a monopoly, they would be able to effectively control the market until their patent expires in 2021. The company claims that they would only charge a reasonable royalty, but there is no way to enforce that claim. And government bodies are rightly wary of mandating that a technology be used when that technology is kept under strict lock and key by a company founded by a patent attorney. It doesn’t have to be this way. Auto manufacturer Volvo never enforced its patent for the seatbelt because they thought that safety mattered more than the competitive advantage they would have by being the exclusive provider of seatbelts. But that does not appear to be SawStop’s modus operandi.
So until 2021, consumers like me will be faced with a choice: risk owning one of the the 1 in 229 table saws that sends somebody to the emergency room each year or pay an extraordinary amount of money for safety (and in doing so, enable a borderline patent troll). I often say that our torts system is far from perfect. This is an instance, though, that the torts system has been almost completely sidestepped by a competing field of law, intellectual property. It’s a reminder that our discussion of duty, breach, cause and harm hardly exists in a vacuum and that it is only a piece of the tangled landscape that is American law.