Patents can be used in different ways, but for the most part provide a deterrent to prevent competitors from copying patented items.  Patents define a legal monopoly so that manufacture or sale of competing products which are covered by the patent is an infringement of the patent holder’s rights.  When an infringement occurs, patent proprietors have a variety of legal remedies available to them to prevent losses.  Hence patent proprietors can protect their investments and stop sales of copy products.

Whilst the intellectual property regimes including the patent regime seek to encourage and promote innovation through the registration of rights, there are also rules around fair competition which stand in contrast to the rights of patent proprietors.  Fair competition laws seek to prevent anti-competitive practices.  For example, under the principle of exhaustion, a proprietor’s patent rights are exhausted once a product is sold.  This means that after the initial sale, customers are generally free to resell products without restriction, creating a market for second hand goods.  What happens however when a repair is required?

The infringing act of making an item usually refers to the initial manufacture of goods.  However, making an item might also include compiling parts which have been separately manufactured, or adding an element or otherwise altering a pre-purchased product – such acts of making an item might also infringe a granted patent.  A more difficult question arises around repair.  Is it an infringement of a patent if a consumer seeks to repair a purchased item which has been damaged?  On the one hand, patent proprietors may wish to prevent repairs to encourage sales and/or to maintain quality in the goods.  However, there is a wider consumer interest in a right to repair, for both economic and environmental reasons.

In the UK, the Supreme Court has considered the extent to which patent holder’s rights can be enforced given the public interest in repairing items to extend their lifespan.  The Court has decided that whilst consumers should have a right to repair, in practice this right to repair will be limited to certain types of repair (Schütz v Werit judgement from the Supreme Court - https://www.supremecourt.uk/cases/uksc-2011-0159).   The conditions on the right to repair are:

• Firstly, a right to repair should only be allowed if the part being replaced is a subsidiary part of the item i.e. not a substantial part of the item.  In cases considered by the courts, replacing a substantial part of the item was determined to be in essence a re-make and would be an infringing act, whereas replacing a subsidiary part was a legitimate repair.  A subsidiary part may have a much shorter lifespan that the item as a whole, and be expected to be replaced.  In other words if the part in question is “physically easily replaceable and in practice relatively perishable” this may be an indicator that it is a subsidiary part.
• Secondly, a right to repair will only generally be found if the part being replaced does not embody the inventive concept of the patent.  On the contrary, if the part being replaced is the inventive subject of the patent, then the patent holder should be enabled to assert their patent rights to prevent a re-make.
• Thirdly, a right to repair may be more likely to exist if the item and the part being replaced are free-standing items in their own right, i.e. one doesn’t cease to exist without the other.  Related to this third point, it was considered whether or not there is any demolition and rebuilding of the patented item by the replacement of the part.

Overall, the legal position is favourable for patent proprietors.  Some right to repair is to be expected but the court decision limits this right quite substantially to circumstances where a non-inventive consumable part of the product is being replaced.  Enabling repairs under the above balance of points seeks to protect consumer rights by freeing up the market for repairs, whilst at the same time empowering patent holders to assert their patent rights to prevent re-makes at the core inventive heart of the patent, thus promoting innovation.

Looking beyond the UK, into the EU, the rules regarding the right to repair are determined separately in each jurisdiction of the EU according to the decisions of the national courts.  However, the EU has wider policy aims regarding fair competition and the environment, which could sway national law in line with EU-wide objectives.  For example, the EU Repair Directive (2024/1799) aims to promote easier and more transparent  access for the repair of goods in line with the EU’s aims on sustainability.  This is of course in tension with the rights of patent proprietors.  We wait to see how the national courts will balance the different interests of businesses investing in intellectual property rights and the over-reaching aims set out in the Repair Directive.