How Much Fuel to Add to the Fire of Genius? Some Questions about the Repair/Reconstruction Distinction in Patent Law

27 Pages Posted: 1 Nov 2019

See all articles by Arthur Gajarsa

Arthur Gajarsa

affiliation not provided to SSRN

Evelyn Aswad

University of Oklahoma College of Law

Joseph Cianfrani

affiliation not provided to SSRN

Date Written: 1999

Abstract

Does the right to exclude in patent law give patentees the right to prevent repairs of their inventions? Typically, patentees are considered to have given to the purchasers of their patented devices the authority to use the patented devices. Generally, such authority also includes the ability to repair the device. This grant of authority, however, does not include an unrestricted license to “make” another device. At some point, repairs may be so extensive that they constitute a reconstruction, or unauthorized “making,” of the patented device. The distinction between minor repairs and extensive repairs that result in an impermissible reconstruction is not always clear. This Article raises issues for discussion with respect to the distinction between permissible repair and impermissible reconstruction. Part I explores the emerging inconsistencies in the repair/reconstruction jurisprudence. Part II discusses problems patentees may face in attempting to redefine what constitutes “impermissible reconstruction” through private contracts with purchasers of their patented goods.

Keywords: patent law, repair & reconstruction, the right to exclude

JEL Classification: K12, K19

Suggested Citation

Gajarsa, Arthur and Aswad, Evelyn and Cianfrani, Joseph, How Much Fuel to Add to the Fire of Genius? Some Questions about the Repair/Reconstruction Distinction in Patent Law (1999). American University Law Review, Vol. 48, No. 1205, 1999, Available at SSRN: https://ssrn.com/abstract=3474127 or http://dx.doi.org/10.2139/ssrn.3474127

Arthur Gajarsa

affiliation not provided to SSRN

Evelyn Aswad (Contact Author)

University of Oklahoma College of Law

307 W Brooks
Norman, OK 73019
United States

HOME PAGE: http://www.law.ou.edu/content/aswad-evelyn

Joseph Cianfrani

affiliation not provided to SSRN

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
9
Abstract Views
110
PlumX Metrics