Right or wrong to repair: an IP perspective

For the past few years, there has been an increased focus on working towards a more circular economy. Ending the model of ‘take, make, break and throw away’ by ensuring consumer products are designed to be repairable is a fundamental step towards achieving this.

The EU and the UK are pushing policy towards repairability of consumer products and goods [1]. Allowing, and even encouraging, end users and / or third parties to repair products raises several potential problems associated with factors such as IP, product safety, regulatory compliance and product design or functionality.

In this article, the possible role IP may have in the right to repair space is discussed, and some challenges which may need to be addressed or overcome are presented.

Right to Repair

The UK introduced ‘Right to Repair’ Regulation [2] in 2021 which aims to extend the life of white goods and electronic displays and provide professional repairers and / or end-users with access to spare parts and technical information for repairing these products. There are now calls for the regulation to cover more appliances, for example laptops and smartphones.

The EU published a ‘Right to Repair’ Directive [3] in 2024 as part of its sustainability strategy (called ‘the Green Deal’). National courts determine the rules regarding the right to repair in each jurisdiction of the EU such that they are in line with the goals of the EU ‘Right to Repair’ Directive. On a similar note, the European regulatory framework on batteries was governed by Directive 2006/66/EC [4] and this was mainly focused on aspects relating to the collection and recycling of batteries. However, this appears to have been implemented inconsistently across the EU. To harmonise legislation across the EU, a new Regulation (EU 2023/1542) [5] came into force in early 2024 aiming to make the battery life cycle more sustainable. In particular, the Regulation specifies that from 2027, portable batteries must be easily removeable and replaceable by end users (unless exemptions are given), requiring companies to consider and implement new ways of achieving this.

The right to repair space is rapidly evolving, and companies will be considering the potential impacts on all parts of their products.

IP opportunities

The right to repair movement creates new opportunities for inventors and businesses to provide innovative solutions to some of the technical issues that currently prevent the repairability of consumer products. Examples of possible technical areas of focus may be:

• new methods to allow for easy disassembly of products for replacement parts;
• methods to disassemble products while maintaining waterproofing or protection against ingress of water or other liquids;
• new thermal designs to allow for good contact when removing / replacing heat generating items; and
• safety features that prevent mis-assembly or dangerous actions being taken by the end user, particularly in cases where mechanical systems, mains voltage or batteries are considered.

Solutions to these examples, and other innovative solutions may be suitable for patent protection, and inventors should consider such protection early on in the development process and ensure that they keep their inventions secret in the meantime.

IP challenges

The aim of the Right to Repair Regulations may find itself at odds with IP rights. In short, if a patented product is put onto the market by the patent proprietor or by a third party with the proprietor’s consent, there is an ‘exhaustion’ of the patent rights meaning that IP rights cannot be used to stop the further distribution or resale of those goods. However, unauthorised new manufacture of the product is not covered by exhaustion and the patent proprietor maintains the patent rights. In general, simple repairs of a patented product may not cause a problem, but it can be difficult to establish whether it is a simple repair or an infringing act of manufacturing the product.

Infringement is dealt with in individual EU states. According to established German case-law [6], the purchaser of the product has the right to maintain and restore the functionality of a patented product if the functionality is affected by a deterioration in the product. If it is expected that a particular part will need to be replaced during the lifetime of the product, an analysis into whether the part reflects the technical effect of the invention needs to be carried out. If it does not reflect the technical effect of the invention, then replacement of this part is considered to be a permissible repair, however if it does reflect the technical effect of the invention, the replacement of that part is considered to be a re-construction of the product and therefore a patent infringement.

In the UK, the Supreme Court [7] determined that the right to repair should be allowed if the part to be replaced is a subsidiary part of the product and there are four factors indicating this:

1) if the part has a low life expectancy;

2) if the part does not include any aspect of the inventive concept of the patent;

3) if the part is a free-standing item of the product; and

4) if rebuilding of the product is required by the replacement of the part.

Based on the German and UK case-law, there seems to be a balance between protecting consumer rights to allow repairs and allowing patent proprietors to enforce their patent rights to prevent re-construction of the product. However, there may be complex issues associated with the new requirement that third party replacement parts must be available for products. For example, if there is patent protection on parts or aspects of the part and / or their interface with a device or product, this may cause challenges for the supply chain of third party replacement parts, which may undermine the aim of the right to repair policy. Further, safety features which are essential to providing safe repairable products may be patent protected, and thus may hinder right to repair.  A scramble for IP capture of feasible designs or methods to allow for repairability of products may also effectively lock out or hinder some companies from being able to comply with regulations.  This is also further confounded by the new incoming EU product liability directive [8], which may create far more serious consequences for not complying with any EU product safety legislation.

Thus, IP and regulatory requirement appear to clash in this new right to repair landscape and issues around several areas may need to be resolved through policy and lawmaking, and the process of this occurring may cause challenges to businesses in the short term.

What to do?

In this complex situation where IP and legal regulation intersect, there may be quite a long period of turbulence for companies and the IP industry to ensure that the interests of IP, consumer protections, market competition and environmental sustainability are managed effectively by legislation, regulation and law. A complicating factor may be that, as has been seen in the past with EU regulations (e.g. USB-C adaptors on mobile phones [9]), companies may be obliged or want to harmonise global designs with EU requirements. However, even if IP law and EU legislation are successfully brought into co-operation, there is no guarantee that IP laws in other jurisdictions will follow suit. This may cause a headache for manufacturers or providers of goods who wish to produce one product to sell into several jurisdictions.

Companies should ensure they keep abreast of changes to global regulations regarding right-to-repair and ensure that they have IP protection to allow them to operate in the immediate future regardless of how IP law or regulations may change to adapt to each other in the longer term.  Filing IP in this area may also allow capitalisation regarding any innovation which is taking place in this space, in particular to gain advantage over competitors who hold back to see what may happen before taking any action.

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[1] Proposal for a Directive on common rules promoting the repair of goods – EU – 22 March 2023

[2] The Ecodesign for Energy-Related Products and Energy Information Regulations – UK – 1 July 2021

[3] Directive (EU) 2024/1799 of the European Parliament and of the Council of 13 June 2024 on common rules promoting the repair of goods.

[4] Directive (EU) 2006/66/EC of the European Parliament and of the Council of 6 September 2006 on batteries and accumulators and waste batteries and accumulators.

[5] Regulation (EU) 2023/1542 of the European Parliament and of the Council of 12 July 2023 concerning batteries and waste batteries

[6] German Federal Supreme Court, “Flügelradzähler” – 4 May 2004 Case No. X ZR 48/03

[7] UK Supreme Court, Schutz (UK) Limited v Werit (UK) Limited – 13 March 2013

[8] Directive (EU) 2024/2853 of the European Parliament and of the Council of 23 October 2024 on liability for defective products

[9] Directive 2014/53/EU of the European Parliament and of the Council of 16 April 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of radio equipment