How Much Fuel to Add to the Fire of Genius? Some Questions About the Repair/Reconstruction Distinction in Patent Law

Does the right to exclude in patent law give patentees the right to prevent repairs of their inventions? Typically, patentees are considered to have given to the purchasers of their patented devices the authority to use the patented devices. Generally, such authority also includes the ability to repair the device. This grant of authority, however, does not include an unrestricted license to “make” another device. At some point, repairs may be so extensive that they constitute a reconstruction, or unauthorized “making,” of the patented device. The distinction between minor repairs and extensive repairs that result in an impermissible reconstruction is not always clear. This Article raises issues for discussion with respect to the distinction between permissible repair and impermissible reconstruction. Part I explores the emerging inconsistencies in the repair/reconstruction jurisprudence. Part II discusses problems patentees may face in attempting to redefine what constitutes “impermissible reconstruction” through private contracts with purchasers of their patented goods.