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Sunday, 4 March 2012

Right to Repair in the US

It happens more often that you might think: Federal legislation is introduced to create for the US a European-style protection regime for spares. The latest effort, reported here by Motor Law's friend Dave Musker on the excellent Class 99 blog, goes under the catchy name of the “Promoting Automotive Repair, Trade, and Sales” (PARTS) Act, HR 3839 (IH). Well, the abbreviation is catchy, anyway. The full text can be found here.

The Bill would give third parties the right to make, import, sell and use spare parts without infringing design patents (which broadly correspond in the States to registered designs here), by curbing the term of protection which would normally be 14 years. That is similar to the approach taken in the EU, to deny spare parts protection in order to deal with competition problems (which to my mind is a misguided attempt to deal with problems with the exercise of rights by curtailing the rights rather than dealing with the real problem). However, it would give the automakers a 30 month exclusivity period before selling and using the parts became legal, which isn't found in the EU system, although independent parts-makers would be able to take steps to prepare for marketing even during that 30 months.  Our home-grown Unregistered Design Right law gives five years' exclusivity, but denies most spare parts protection because of the must-fit and must-match exclusions. The residual protection offered in the US would be even less use than what they get under our law: there's an interesting article about the proposal by Kelly Burris of Brinks Hofer here.

Of course, attempts to tie up the loose ends left by the European Union designs legislation have come to very little over the past many years. How can anyone ever hope to find agreement on spare parts protection? The vested interests are just too deeply entrenched and irreconcilable. Don't expect the Americans to devise a magic solution.

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