• IP and the Right to Repair

    I ran across an interesting article last week that I thought I would share. It’s called Intellectual Property Law and the Right to Repair, by Leah Chan Grinvald (Suffolk Law) and Ofer Tur-Sinai (Ono Academic College). A draft is on SSRN and the abstract is here:

    In recent years, there has been a growing push in different U.S. states towards legislation that would provide consumers with a “right to repair” their products. Currently 18 states have pending legislation that would require product manufacturers to make available replacement parts and repair manuals. This grassroots movement has been triggered by a combination of related factors. One such factor is the ubiquity of microchips and software in an increasing number of consumer products, from smartphones to cars, which makes the repair of such products more complicated and dependent upon the availability of information supplied by the manufacturers. Another factor is the unscrupulous practices of large, multinational corporations designed to force consumers to repair their products only through their own offered services, and ultimately, to manipulate consumers into buying newer products instead of repairing them. These factors have rallied repair shops, e-recyclers, and other do-it-yourselfers to push forward, demanding a right to repair.

    Unfortunately, though, this legislation has stalled in many of the states. Manufacturers have been lobbying the legislatures to stop the enactment of the right to 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 secret. Similarly, employing measures undercutting a manufacturer’s control of the market for replacement parts might conflict with patent exclusivity. Nonetheless, this Article’s thesis holds that intellectual property laws should not be used to inhibit the right to repair from being fully implemented.

    In support of this claim, this Article develops a theoretical framework that enables justifying the right to repair in a manner that is consistent with intellectual property protection. In short, the analysis demonstrates that a right to repair can be justified by the very same rationales that have been used traditionally to justify intellectual property rights. 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 overview, this Article identifies those areas where intellectual property rights could prevent repair laws from being fully realized, even if some of the states pass the legislation, and recommends certain reforms that are necessary to accommodate the need for a right to repair and enable it to take hold.

    I thought this was an interesting and provocative paper, even if I am skeptical of the central thesis. I should note that the first half of the paper or so makes the normative case, and the authors do a good job of laying out the case.

    Many of the topics are those you see in the news, like how laws that forbid breaking DRM stop others from repairing their stuff (which now all has a computer) or how patent law can make it difficult to make patented repair parts.

    The treatment of trade secrets, in particular, was a useful addition to the literature. As I wrote on the economics of trade secret many years ago, my view is that trade secrecy doesn’t serve as an independent driver of innovation because people will keep their information secret anyway. Thus, any innovation effects are secondary, in the sense that savings made from not having to protect secrets so carefully can be channeled to R&D. But there was always a big caveat: this assumes that firms can “keep their information secret anyway,” and that there’s no forced disclosure rule.

    So, when this article’s hypothesized right to repair extended to disclosure of manuals, schematics, and other information necessary to repair, it caught my eye. On the one hand, as someone who has been frustrated by lack of manuals and reverse engineered repair of certain things, I love it. On the other hand, I wonder how requiring disclosure of such information would change the incentive to dynamics. With respect to schematics, companies would probably continue to create them, but perhaps they might make a second, less detailed schematic. Or, maybe nothing would happen because that information is required anyway. But with respect to manuals, I wonder whether companies would lose the incentive to keep detailed records of customer service incidents if they could not profit from it. Keeping such records is costly, and if repairs are charged to customers, it might be better to reinvent the wheel every time than to pay to maintain an information system that others will use. I doubt it, though, as there is still value in having others repair your goods, and if people can repair their own, then the market becomes even more competitive.

    While the paper discusses the effect on the incentive to innovate with respect to other forms of IP, it does not do so for trade secrets.

    With respect to other IP, the paper seems to take two primary positions on the effect of immunizing IP infringement for repair. The first is that the right to repair can also promote the progress, and thus it should be considered as part of the entire system. While I agree with the premise from a utilitarian point of view, I was not terribly convinced that the right to repair would somehow create incentives for more development that would outweigh initial design IP rights. It might, of course, but there’s not a lot of nuanced argument (or evidence) in either direction.

    The second position is that loosening IP rights will not weaken “core” incentives to develop the product in the first place, because manufacturers will still want to make the best/most innovative products possible. I think this argument is incomplete in two ways. Primarily, it assumes that manufacturers are monolithic. But the reality is that multiple companies design parts, and their incentive to do so (and frankly their ability to stay in business) may well depend on the ability to protect designs/copyright/etc. At the very least, it will affect pricing. For example, if a company charged for manuals, it may be because it had to pay a third party for each copy distributed. Knowing that such fees are not going to be paid, the original manual author will charge more up front, increasing the price of the product (indeed, the paper seems to assume very little effect on original prices to make up for lost repair revenue). Secondarily, downstream repairs may drive innovation in component parts. For example, how repairs are done might cause manufacturers to not improve parts for easy repair. The paper doesn’t seem to grapple with this nuance.

    This was an interesting paper, and worth a read. It’s a long article – the authors worked hard to cover a large number of bases, and it certainly made me think harder about the right to repair.

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  • Guest Post — Rising Carbon Dioxide Levels: Capture Methods & Patent Trends

    By Brian Pattengale* and Anthony D. Sabatelli** — Recent data from NOAA, the National Oceanic and Atmospheric Administration, indicates that current atmospheric carbon dioxide (CO2) levels are at 409 ppm as of October 2018. This is a 36% increase from the highest historical CO2 level,1 and is increasingly being attributed to human activity, namely fossil fuel combustion in power generation, transportation, and industrial processes. A myriad of issues stem from high CO2 levels, including global warming (1.6 ˚F in the past 35 years), rising sea levels (8 inches in the last century), glacial retreat, and ocean acidification (30% increase in…

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  • Women On The Rise In Patent Filings, But Still Underutilised Potential, USPTO Says

    The United States Patent and Trademark Office (USPTO) released a report on 11 February showing an increase in US patents that include at least one woman inventor from 7 percent in the 1980s to 21 percent by 2016. This is still a “small minority” of patented inventors, the report finds, and suggests that it indicates an “underutilisation” of women’s innovative potential.

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  • ~するためである

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    ~するためである

    (BE TO-V)
    $$ This is to stop the handset being used as a torch or a toy. / これは、送受話器がトーチ又はおもちゃとして使用されないようにするためである。(USP8860573)

    $$ This is to ensure synchronisation of audio and video transmission. / これは、音声伝送およびビデオ伝送の同期を確実にするためである。(USP8135852)

    $$ This is to allow the user to use the OIP for linking and other purposes. / これは、ユーザがリンク及び他の目的のためにOIPを使用できるようにするためである。(USP7578441)

    $$ The principle reason for doing this is to allow the digital transducer drive-circuitry ("digital amplifiers") to operate with feasible clock rates. / それを行う主な理由はデジタルトランスジューサ駆動回路(“デジタル増幅器”)が実行可能なクロックレートで動作できるようにするためである。(USP7577260)

    $$ The reason for having this spacing is to allow the turfed surface 68 to distort in a manner similar to that of a natural turfed racetrack surface when a horse’s hoof impacts the surface in the region of the angled turf and soil edge 70. / このような間隔を置く理由は、芝と土壌の傾斜縁部70の領域内の面が馬のひづめによる衝撃を受けたとき、芝面68が天然芝の競争路面と同様にひずむようにするためである。(USP7090586)

    $$ This identifies the one socket 6 from the other RJ45 socket 5 for the purposes of the operator, and is to ensure they plug into the correct connection socket when using the device. / これは、オペレータために他のRJ45ソケット5から1つのソケット6を識別し、装置を使用するときにそれらが正しい接続ソケットに差し込まれることを確実にするためである。(USP7587029)

    (AS)
    $$ However ultra low beam operation is still difficult as the current will still fall as the 3/2 power of the beam energy across the inter-electrode gap. / しかし、超低ビーム動作は依然として困難である。この理由は、電流が電極間ギャップ両端間のビームエネルギーの3/2乗として依然として減少するためである。(USP8471452)

    $$ Depending on supply voltages, the motor rates may have to be artificially limited, as the gearbox and brake components will have an upper physical limit to their allowable angular velocity. / 供給電圧に基づいて、モータ速度は人工的に制限しなければならず、これは、変速装置およびブレーキコンポーネントが許容角速度に対して物理的上限を有するためである。(USP8191821)

    (BECAUSE)
    $$ This is because wheel torque, having been largely dependent on engine torque while in fixed synchronous ratio, once more becomes largely dependent upon the variator control input when leaving this condition. / これは、固定同期比にある間にエンジントルクに大いに依存する車輪トルクがこの状態からの脱却時に変動器の制御入力に再度大いに依存するためである。(USP7625309)

    $$ This is because the link between nodes D and C uses time slot 2. / これは、ノードDとC間のリンクがタイムスロット3を使用するためである。(USP6553020)

    (SINCE)
    $$ Once a specific person is designated as a target, the problem that must be solved is essentially that of redetection of that target, since the high frame rate and relatively low target speed reduce the problem of generating an actual target track to that of joining the detection instances in each frame. / いったん特定の人物が目標として指定されると、解決されるべき問題は、本質的には該目標を再検出するという問題である。これは、高いフレームレート及び相対的に低い目標速度が、実際の目標追跡を行うという問題を、各フレームの検出インスタンスを結合するという問題にまで削減するためである。(USP8121346)

    $$ This requires that the depth of the source is assumed, since the spatial response characteristics of the probe change with source depth. / これには線源深さが仮定されることが必要であるが、その理由は、プローブの空間応答特徴が線源深さに応じて変化するためである。(USP7576332)

    (OTHERS)
    $$ It is for use with receive signals having non-contiguous carrier frequencies separable by conventional filters as discussed earlier (its transmit signals need not be non-contiguous). / それは、先に論じたような(その送信信号は、非連続的である必要がない)従来のフィルタによって分離可能な非連続的なキャリア周波数を有する受信信号とともに使用するためである。(USP8269668): be for

    $$ For neuroscience applications, one important use of 2-photon microscopes is for uncaging neurotransmitter chemicals to selectively excite particular neurons. / 神経科学用途にとって2光子顕微鏡の一つの重要な使用目的は、特定のニューロンを選択的に励起するために神経伝達物質化学薬品をアンケイジング(uncaging)するためである。(USP8294977): be for V-ing

    $$ The gate 24 is then rotated in reverse and a release mechanism (not shown) engages the end of the pull strip 13 and winds it around a spool (not shown) so as to remove the lid 10 and release the rivets which then pass down the chute 21 and into the feeder 20. / それから、ゲート24は逆に回転し、解放機構(不図示)がプルストリップ13の端部に係合し、それをスプール(不図示)の周囲に巻き付ける。これは、蓋10を取り除き、リベットを解放するためである。解放されたリベットは、シュート21をフィーダー20内へと押し下げる。(USP6692213): so as to-V

    $$ It is intended that the device of the present invention could be constructed around a standard needle, barrel and plunger of known type. / これは、標準的なニードル、バレル、およびプランジャの周りに部品を取り付けることによっても、本発明の注射装置を完成しうるようにするためである。(USP7645265): intend

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  • Iancu Highlights U.S. Role in the Future of Innovation in Remarks at U.S. Chamber’s Global IP Index Reception

    On February 7, the Global Innovation Policy Center (GIPC) of the U.S. Chamber of Commerce held its 2019 U.S. Chamber International IP Index Reception to announce the findings of this year’s International IP Index, which saw the United States patent system shoot from twelfth place last year to second place this year. Following are remarks delivered by United States Patent and Trademark Office Director Andrei Iancu at the event, after being introduced by GIPC President and CEO, David…

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  • Remedies News from Canada

    1.  Norman Siebrasse published a post last month on Sufficient Description titled Legal Fees Not a Deductible Expense in an Accounting.  The case, Human Care Canada Inc. v. Evolution Techs. Inc. 2018 FC 1302 supplementary reasons 2018 FC 1304…

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