Repairing Medical Equipment in Times of Pandemic

Abstract

The COVID-19 pandemic that has gripped the world since early 2020 has underscored the need for an effective right to repair medical equipment. As healthcare systems have been pushed to the limit, keeping critical medical equipment (such as ventilators) in working order has become a matter of life and death. Unfortunately, the ability of hospitals and other health care providers to service and fix their medical equipment is often hindered by the tight control that original equipment manufacturers keep over repair of their products. On top of direct contractual restrictions on repair, one of the major difficulties encountered by hospital-based and third-party service providers is the lack of access to service manuals, service keys, schematics, replacement parts, and repair tools. The ability to block access to these critical items is abetted, in large part, by intellectual property laws.

In August 2020, a new federal legislation was introduced to address this problem—the Critical Medical Infrastructure Right-to-Repair Act of 2020 (the “Act”). The Act is designed to facilitate repair of critical medical infrastructure during the current COVID-19 pandemic, and to do so, it addresses various relevant intellectual property issues. This Article provides a critical analysis of the Act and examines the extent to which it could serve its prescribed goal. We also investigate the role that courts could play, alongside such legislation, by using policy levers that already exist in intellectual property law to provide relief to hospital-based and independent service technicians and mandate manufacturers to cooperate with them in certain circumstances.

Keywords: repair, intellectual property, exhaustion, environment, sustainability, patents, copyright, design, replacement parts, medical devices, fair use