Intellectual Property Law and the Right to Repair

Abstract

This Article posits that intellectual property law should accommodate consumers’ right to repair their products.

In recent years, there has been a growing push towards state legislation that would provide consumers with a “right to repair” their products. Currently 18 states have pending legislation that would require product manufacturers to make available replacement parts and repair manuals. Unfortunately, though, this legislation has stalled in many of the states. Manufacturers have been lobbying the legislatures to stop the enactment of these repair laws based on different concerns, including how these laws may impinge on their intellectual property rights. Indeed, a right to repair may not be easily reconcilable with the United States’ far-reaching intellectual property rights regime. For example, requiring manufacturers to release repair manuals could implicate a whole host of intellectual property laws, including trade secret. Similarly, employing measures undercutting a manufacturer's control of the market for replacement parts might conflict with patent exclusivity.

Nonetheless, this Article holds that intellectual property laws should not be used to inhibit the right to repair from being fully implemented. In support of this claim, this Article develops a theoretical framework that justifies the right to repair in a manner that is consistent with intellectual property protection. Based on this theoretical foundation, this Article then explores, for the first time, the various intellectual property rules and doctrines that may be implicated in the context of the current repair movement. As part of this analysis, this Article identifies areas where intellectual property rights could prevent repair laws from being fully realized, even if some of the states pass the legislation, and recommends certain reforms that are necessary to accommodate the need for a right to repair and enable it to take hold.

Keywords: repair, intellectual property, patent, design, trade secret, copyright, trademark, exhaustion, preemption, replacement parts, consumer electronics, labor theory, personality theory, social planning theory, state legislation, counterfeiting, consumer safety