Right to repair: could it take a bite out of e-waste?

Forward: features are independent pieces written for Mewburn Ellis discussing and celebrating the best of innovation and exploration from the scientific and entrepreneurial worlds.

If you own a smartphone, you may be familiar with this problem: your ageing handset is offering poorer and poorer battery life, but replacing the battery means handing the phone over to an authorised technician and perhaps losing use of it for days or weeks. If your device is no longer under warranty, this can often come at a substantial cost, and it may seem just as easy to upgrade to a new model – binning an otherwise perfectly useable device in the process.

Many of us have accepted this type of scenario as an inevitable part of being a modern smartphone or technology owner. However, a growing number of Right to Repair campaigners are calling for an end to the practice of tying this type of basic repair to a limited technician network, and to opening the opportunities for consumers to extend the life of the many products they rely on every day.

Sharper focus

The issue of who has the right to repair, and what, has recently been brought into sharper focus thanks to the COVID-19 pandemic. For example, readers may be aware of a widely-reported initiative in Italy that saw well-intentioned volunteers produce 3D-printed versions of ventilator parts without the permission of the original manufacturer in an effort to provide them at speed – and the ensuing debate as to how this type of activity intersects with legitimate concerns about the protection of IP rights.

Meanwhile, recognising similar urgency and rising public concern, some US ventilator manufacturers released repair documentation enabling healthcare providers there to fix machines more easily and continue to help critically ill coronavirus patients. Also in the US, the Open COVID Pledge has seen companies like Intel, IBM, Microsoft and ventilator-maker OVSI commit to freely sharing IP relevant to COVID-19 for a fixed duration.

Certainly, the pandemic has highlighted the complexity and fragility of global supply chains and the need to find more agile ways to support the delivery of vital services such as healthcare.

A mounting problem 

In the longer term, however, there’s also the environmental impact to consider. Around the world, less than half of all discarded electronics are recycled and, of these, up to 80% can end up being shipped and scrapped far away from the country where they’ve been discarded.

Putting an end to the modern model of making, taking and creating waste is now an urgent task – especially for countries that have pledged to be carbon-neutral by 2050, with net-zero greenhouse gas emissions, in keeping with the Paris Agreement on global climate action.

That’s one of the reasons why, at repair.eu, organisations from around Europe are calling for the right to repair to be made ‘as mainstream and inclusive as possible’ and to help citizens and consumers ‘recognise we have the power to make a positive change for the planet, and for communities’. This would be provided by a range of measures and activities, including: a universal right to repair; education and promotion of the subject; and providing ‘access to repair information and spare parts for all – not just professionals’. Other efforts to establish right to repair are also underway in the US, for instance through the Repair Association.  

And there has been some progress. The European Commission announced last year that firms would have to make domestic appliances – including lighting, washing machines, dishwashers and fridges – longer-lasting and would have to supply spare parts for up to 10 years after an appliance is manufactured. Set to come into force in April 2021, the remit of the EU’s eco-design rule has since been expanded to cover phones, tablets and laptops.

Addressing the way devices and machines are used, repaired and discarded is part of the EU’s wider Circular Economy Action Plan, launched in March. The plan reflects a recognition that: ‘Many products break down too easily, cannot be reused, repaired or recycled, or are made for single use only.’ Among its measures are those that will ‘empower customers’ allowing them the benefit from ‘a true “Right to Repair”’.

Yet while campaigners see it as a “step in the right direction”, they point out that it still limits who gets to carry out the repairs. ‘When repair activities stay in the hands of a few firms, we're missing an opportunity to make it more affordable and readily available,’ stated Stephane Arditi of the European Environmental Bureau.

A fine line

From a legal standpoint, ‘If you own a product then you have the right to repair it without repercussions, but only to the extent that the repairs carried do not constitute “making” a patented product,’ says Alex Burns, an associate and patent attorney at Mewburn Ellis, working in the electronics and engineering sectors.

“If you own a product then you have the right to repair it without repercussions, but only to the extent that the repairs carried do not constitute ‘making’ a patented product”

The line between repairing and making a patented product is a fine one, though, as highlighted by Schütz v Werit [2013]. In that case, the UK Supreme Court ruled in favour of the party accused of infringing Schütz’s patent, concluding that a number of factors need to be considered when determining whether the supply and replacement of spare parts constitutes an infringement.

These factors include whether the part in question is expected to be replaced during the lifecycle of the device or machine, whether it forms part of a patented invention, and whether replacing it requires the disassembly and rebuilding of surrounding parts.

The Schütz v Werit ruling has arguably made it easier for parties further down the supply chain to justifiably repair devices and machines. However, there’s a consensus among original equipment manufacturers (OEMs) that opening up the right to repair to more parties could increase the likelihood of nefarious actors replicating the central components of their inventions or designs.

Burns notes that OEMs often aim to strengthen their legal position by seeking patent or design protection for constituent components of their products. ‘This gives them more ammunition to prevent third parties from replicating these individual components in order to repair the full product, rather than relying on protection which covers the whole of the product itself’ he says.

As for consumers, the rise of right to repair rules and call for more durable devices should mean that they may be able to enjoy their products longer, with the benefits for our planet’s future that can bring.

The mobile market: Playing it fairer

An example of how manufacturers can design products fairly and make them easier to fix and longer lasting is Fairphone. The Amsterdam-based social enterprise launched its third mobile phone model last year and offers replaceable modular components, installable with just a screwdriver. Fairphone is also transparent about its supply chains, sources minerals from conflict-free or Fairtrade mines and is looking closely at how it can recycle parts so that as little waste as possible is created by the product.

Read more from Mewburn Ellis about patent infringement in a time of crisis.

Written by Rich McEachran