IP and the circular economy: do we need a general ‘right to repair’?

A key motto of the circular economy is: ‘repair, don’t throw away’. Directive (EU) 2024/1799 gives consumers a contractual right to repair vis-à-vis the manufacturers of goods. But IP rights are potential troublemakers. The manufacture and distribution of spare parts prima facie interferes with IP rights, but only design law has a repair clause, while there is no similar limitation in trade mark and copyright law. The resale of repaired or reconditioned products is covered by the principle of exhaustion, but the distinction between repair and remanufacturing can be difficult, as many patent cases show. Furthermore, a trade mark owner can oppose further commercialisation if there exist ‘legitimate reasons’, in particular if the condition of the product has been changed – as is usually the case in repair and upcycling. In European patent law, too, the principle of exhaustion has recently been subject to a similarly worded counter-exception. We will analyse the limits that IP law – in particular patent, trade mark law and copyright law – places on repair and upcycling. Is it sufficient to rely on the ‘tacit wisdom’ of IP law in dealing with cases of repair, reconditioning or upcycling, or does IP law need an affirmative ‘right to repair’?