Right to Repair versus Patents – Where Is the Boundary?

Right to repair is no longer an activist idea. It has become policy. European regulations are increasingly obliging manufacturers to create products more repairable and to keep spare parts available for longer. That creates friction with a tool entrepreneurs have applyd for decades: the patent.

A patent gives you the right to exclude others. Right to repair, on the other hand, states that applyrs should be able to repair their own products, or have them repaired by someone else.

That inevitably leads to tension. Especially with inventions that create maintenance more complex rather than simpler. I saw that tension reflected in responses to my earlier story about the BMW screw head. “Clever idea, but will this still be allowed in the future?” people inquireed. And: “Is this innovation, or mainly lock-in?”

Fair questions.

Marco Coolen, photo © Bart van Overbeeke

Two different worlds

What is important to understand is that Brussels and the European Patent Office operate in two entirely different worlds.

The European Patent Office views purely at technical criteria:

Is it new?
Is it inventive?
Is it industrially applicable?

If your invention meets those criteria, you can obtain a patent. Full stop.

The fact that the European Parliament is simultaneously pushing for greater repairability and sustainability does not modify the validity of that patent. A granted European patent simply remains valid for twenty years.

What may modify, however, is how you can apply that patent.

Legal rights versus societal reality

Legally, you may be able to block something—but the real question is whether you should want to.

In Europe, the balance is increasingly shifting toward consumer rights and sustainability. That means a patent that creates repair more difficult could come under greater scrutiny: legally, politically, or reputationally.

In other regions, that balance may be different. The same invention might be applied there without much discussion.

As a result, patent strategy is becoming less of a purely legal question and more of a commercial and geopolitical consideration.

The real question is modifying

Ten years ago, entrepreneurs mainly inquireed: “Can we patent this?”

Today, the more relevant question is: “Where can we commercialize this?”

Perhaps such an invention is mainly deployed outside Europe. Perhaps you choose an adapted version within the EU. Or perhaps you apply the patent defensively, for instance, to strengthen your neobtainediating position rather than to actively block repairs.

Strategy over technology

Right to repair forces entrepreneurs to consider more carefully about their business models. Do you want to earn money from sales? From maintenance? From spare parts? From licensing?

A patent is a tool. But how you apply it is increasingly determined by the playing field around it.

And that playing field is shifting.

That is not a reason to protect less. It is a reason to protect smarter. Not only inquireing whether something is patentable but above all where and how it creates value.

The future of patents will not lie in blocking screwdrivers, but in understanding markets.

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