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88 Fordham L. Rev. 63 (2019-2020)
Intellectual Property Law and the Right to Repair

handle is hein.journals/flr88 and id is 71 raw text is: 







     INTELLECTUAL PROPERTY LAW AND THE
                       RIGHT TO REPAIR

               By Leah  Chan  Grinvald* &  Ofer Tur-Sinai**

   This Article posits that intellectual property law should accommodate
consumers'  right to repair their products. In recent years, there has been a
growing  push towards state legislation that would provide consumers with a
right  to repair their products.  Currently, twenty states have pending
legislation that would  require product  manufacturers  to make  available
replacement   parts  and  repair  manuals. Unfortunately, though, this
legislation has stalled in many  of the states. Manufacturers   have been
lobbying  the legislatures to stop the enactment of these repair laws based on
different concerns,  including  how   these laws  may   impinge  on   their
intellectual property rights. Indeed, a right to repair may  not be easily
reconcilable with the United States'far-reaching intellectual property rights
regime.  For  example, requiring manufacturers  to release repair manuals
could  implicate a whole host of intellectual property laws, including trade
secrets.  Similarly, employing  measures  that undercut  a manufacturer's
control  of the market for  replacement  parts might  conflict with patent
exclusivity.
   Nonetheless, this Article holds that intellectual property laws should not
be used to prevent a right to repair from being fully implemented. In support
of this claim, this Article develops a theoretical framework that justifies a
right to repair in a  manner  that is consistent with intellectual property
protection. Based  on this theoretical foundation, this Article then explores,
for the first time, the various intellectual property rules and doctrines that
may  be implicated in the context of the current repair movement. As part of
this analysis, this Article identifies areas where intellectual property rights
could prevent repair laws from being fully realized, even ifsome of the states

* Associate Dean for Academic Affairs and Professor of Law at Suffolk University Law
School.
** Associate Professor of Law, Ono Academic College (Israel). LL.B., Ph.D., Hebrew
University of Jerusalem; LL.M., Columbia University. For helpful comments, suggestions,
and discussions, the authors are grateful to Katya Assaf, Sarah Burstein, Dylan Gilbert, Eric
Goldman, Lital Helman, Cynthia Ho, Steven Jamar, Mark Lemley, Peter Menell, Lateef
Mtima, Kali Murray, Lisa Larrimore Ouellette, Aaron Perzanowski, Michael Risch, Sharon
Sandeen, Joshua Sarnoff, Jessica Silbey, Michal Shur-Ofry, Ryan Vacca, and Peter Yu, as
well as the participants of the 2018 IP Mosaic Roundtable Conference (New Hampshire), the
Works-in-Progress Intellectual Property Colloquium (WIPIP) (Houston, 2019), and the
Sha'arei Mishpat Law College Faculty Seminar (Israel, 2019). Finally, the authors thank the
editors of the Fordham Law Review for their careful and thoughtful edits.


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