The right-to-repair movement has been in the news lately. Right-to-repair advocates argue that, if you buy a product, you should be allowed to repair it if it becomes nonfunctional. Further, companies should be required to provide manuals, instructions and tools — particularly software tools — that make repair possible. Companies are resistant to complying with requests for many reasons. Money is one reason, since if a product no longer functions, then consumers will have to buy another. Protecting trade secrets and intellectual property is another reason. Copyrights, trade secrets and patents protect the inner workings of devices like smartphones and tablets. Right-to-repair issues are, of course, not limited to electronics. With respect to farm machinery, automobiles and related products, there has been a long-running battle between manufacturers and consumers over the ability to repair the machines.

Interestingly enough, a few decades ago there was a similar right-to-repair fight with respect to patent law. Patent owners claimed that repairing a product was patent infringement. However, the courts eventually held that patent owners gave an implied license to their customers that allowed repair and refurbishment as long as the product was not completely rebuilt or reconstructed. One relatively famous case is Hewlett-Packard v. Repeat-O-Type Stencil, 123 F. 3d 1445 (Fed. Cir. 1997). That case held that it was NOT patent infringement for users to refill ink cartridges for use in Hewlett-Packard (“HP”) printers. HP owned the patents on the cartridges and argued that refilling them and adding new seals was a “reconstruction” of the product, not a “repair.” The court disagreed. It is likely that cases like Hewlett-Packard will be cited by courts when right-to-repair advocates are litigating these issues.

There has been good news for the right-to-repair movement lately. As reported here, the Federal Trade Commission (“FTC”) has voted to begin drafting new regulations that would ban manufacturers from having strict repair restrictions. Further, as reported elsewhere, the White House has officially backed the right-to-repair movement. giving verbal and legal support to the FTC. As further reported, Apple, Inc., will now begin offering parts, software tools and manuals to support repair of some of their products.

In related news, the Librarian of the Library of Congress has recently expanded the definition of “fair use” under the DMCA to allow for diagnosis, maintenance and repair of consumer devices. These are among the positive changes for consumers who want to own and repair their own devices.

The Patent Exhaustion Doctrine: The Legal Foundation for Repair Rights

The core legal principle underpinning the right to repair as it applies to patented products is the patent exhaustion doctrine, also called the “first sale doctrine” in the patent context. The Supreme Court most recently and comprehensively addressed this doctrine in Impression Products, Inc. v. Lexmark International, Inc., 581 U.S. 360 (2017). In that case, the Court held that once a patent holder sells a patented item, the patent rights in that specific item are exhausted — the patent holder cannot use patent law to restrict what the buyer does with the product, including repairing and reselling it.

The critical distinction, however, remains between “repair” and “reconstruction.” Courts have held that patent exhaustion allows repair of a patented item but does not extend to reconstruction — essentially making a new patented article from components. The line between repair and reconstruction is fact-specific, but courts have looked at the life expectancy of the repaired component, the comparative cost and importance of the component within the overall patented device, and whether the repaired component constitutes the “heart” of the patented invention. Under these factors, replacing a worn-out component to restore a device to working condition is almost always repair, while building a new unit from scratch using salvaged parts from multiple spent devices is often reconstruction.

Trade Secrets and the Right-to-Repair Conflict

Even where patent law does not block repair, manufacturers increasingly rely on trade secret law and contractual restrictions to limit access to repair information. Software-dependent devices present a particular challenge: diagnostic software, repair manuals, and calibration data can all qualify as trade secrets if maintained with reasonable secrecy and if their disclosure would provide commercial value to competitors. Manufacturers argue that providing this information to independent repair shops would also provide it to competitors and counterfeit parts manufacturers, undermining the value of the trade secret.

Right-to-repair legislation pending in several states and at the federal level would require manufacturers to make available, at fair and reasonable terms, the documentation, tools, and software needed to diagnose, maintain, and repair covered devices. The key legal challenge in drafting such legislation is the Takings Clause of the Fifth Amendment: a legislative requirement to disclose trade secrets without compensation could constitute a taking of private property requiring just compensation. Legislatures have addressed this by requiring disclosure only of information necessary for repair — not the full scope of a manufacturer’s proprietary information — and by providing for licensing fees rather than compelled free disclosure.

Agricultural Equipment: The John Deere Right-to-Repair Battle

No right-to-repair dispute has attracted more attention than the ongoing battle between John Deere and farmers over access to the diagnostic software needed to repair modern farm equipment. John Deere’s tractors and combines are controlled by sophisticated software that requires proprietary diagnostic tools — which John Deere refuses to make available to farmers or independent mechanics. When equipment breaks down during planting or harvest, farmers have no choice but to wait for an authorized John Deere dealer, sometimes for days or weeks, at enormous cost. John Deere’s position is that the software is protected intellectual property that, if released, would enable circumvention of emissions controls and engine performance limits.

In 2022, John Deere entered into a memorandum of understanding with the American Farm Bureau committing to provide repair tools and manuals to farmers. However, critics have noted that the MOU is not legally binding and lacks enforcement mechanisms. Legislation in states including Colorado has moved to codify right-to-repair requirements for agricultural equipment with mandatory penalties for non-compliance.

Looking Ahead: Federal Right-to-Repair Legislation

Multiple federal bills addressing right-to-repair have been introduced in recent Congresses, including the Fair Repair Act, the REPAIR Act for agricultural equipment, and the Freedom to Repair Act for medical devices. While none has yet passed, the trend at the state level — with more than 40 states having introduced right-to-repair legislation and Massachusetts having enacted the first automotive right-to-repair law — creates growing pressure for federal action. Businesses that manufacture hardware-software integrated products should assess their current repair restriction practices in light of this evolving legal landscape.

Contact Revision Legal

Revision Legal advises manufacturers, technology companies, and businesses on intellectual property strategy in the evolving right-to-repair environment, including trade secret protection, patent portfolio management, and compliance with applicable repair legislation. Contact us today.