Stateside Spares Bill

A bill is before the House which would introduce a "Repair Clause" into US Design Patent Law.  H.R. 3059 (and S. 1368), the Access to Repair Parts Act, would add a new section 271(j) to 35 USC as follows:

‘(j) It shall not be an act of infringement of any design patent to make, use, offer to sell, or sell within the United States or import into the United States any article of manufacture that itself constitutes a component part of another article of manufacture, if the sole purpose of the component part is for the repair of the article of manufacture of which it is a part so as to restore its original appearance.’

It will not have escaped the notice of keen readers that this closely follows the language of the EU's CDR Art 110:

"protection as a Community design shall not exist for a design which constitutes a component part of a complex product used within the meaning of Article 19(1) [i.e. otherwise infringing uses] for the purpose of the repair of that complex product so as to restore its original appearance."

with the difference, however, that the US proposal bites not only on designs of spares, but on all designs.  It appears to be pretty much the same as H.R. 5638, for reasons I am too ignorant of US procedure to understand.

As always, we appreciate the meticulous background on Prof. Dennis Crouch's Patently-O blog, here and here.  Dennis points out a startling rise in car spare registrations since 2000.  Although many of these are foreign-owned, it is likely to have been the successful 2007 Ford ITC action against imported spares (which settled on appeal with a royalty-bearing licence) which motivated this US move.  The "Quality Parts Coalition"'s timeline giving some historical background is here.  (As one of my former colleagues used to say, there are two types of "quality" ...).

We suspect that the third-party spares suppliers are fighting a more uphill battle in the US than in the EU (and even there, they only half-won).  Perry Saidman comes out swinging here, concluding that the purpose of the Bill is merely "to give knock off companies a free ride on the coattails of legitimate designers."  Some of the other testimony is also worth reading.

Europeans will await the outcome with interest, and a certain sense of deja vu.