Infringe Ford’s Design Patents by Repairing your Car

Automotive Body Parts Ass’n v. Ford Global Techs, LLC (Supreme Court 2020) [19-__PetitionForAWritOfCertiorari]

Ford has implemented an aggressive strategy of patenting the various parts of its new vehicles.  Many of these new patents are design patents: Wheels; fenders; airbag compartments; grilles; bumpers; tail lights; headlights; console; hood; mirror; etc.

After an accident, a vehicle owner typically wants to repair the vehicle.  While repair of the vehicle may seem permissible under an exhaustion doctrine, the difficulty comes in when looking at individual parts. Repair of the vehicle might require replacement/reconstruction of a patent part (such as the side-mirror pictured above).  The repair industry (and insurance companies) would like to use less-expensive repair parts — one way is to buy off-brand parts — especially for lower-tech items such as a fender or headlight cover.  But, the design patents are preventing that from happening.

In its new petition for writ of certiorari, Automotive Body Parts Ass’n asks the Supreme Court should provide a broader view for the exhaustion doctrine:

Under the patent exhaustion doctrine, a patentee’s decision to sell a product exhausts all of its patent rights in that item. The unrestricted sale creates an implied license to use, which includes the right to repair. Analysis of whether a right to repair exists requires identification of the correct article of manufacture.

The Federal Circuit held that repair rights and identification of the article of manufacture should be determined solely by what is claimed in the patent. This holding allows a patentee to greatly diminish or eliminate the right to repair and allows improper broadening of design patent protection over unclaimed portions of a design. The question presented is:

How should the article of manufacture be determined when applying the patent exhaustion and repair doctrines in design patent cases?

These issues have already been discussed in some ways by the Supreme Court in Aro Mfg. Co., Inc. v. Convertible Top Co., 365 U.S. 336 (1961) and Aro Manufacturing Co. v. Convertible Top Replacement Co., 377 U.S. 476 (1964).  However, the petitioner largely sets these cases aside — arguing that design patents are particularly problematic — and that the Supreme Court can fashion a design-patent-specific remedy.

19 thoughts on “Infringe Ford’s Design Patents by Repairing your Car

  1. 5

    The thread is probably to dead to get an answer now, but I’ll try anyways…

    Does anyone buy their (ABPA’s) argument at all? What they’re saying seems to suggest I should be able to sell “repair kits” containing a patented epipen formulation, without any license, so that users can “repair” their “damaged” epipens which previously contained that patented formulation. It seems… downright silly.

    1. 5.1

      ?

      Do you have some link to refresh a topic that appears to be at least three years old?

      I don’t seem to recall the angle that you are suggesting (not saying it isn’t there).

    2. 5.2

      When I use the search bar for this blog for “epipen” I receive only two results:
      link to patentlyo.com
      and
      link to patentlyo.com

      The first has a single hit with a post from PiKa that shows the epipen discussion was wrapped in false attributions:

      Recently, we also saw a lot of anti-patent discourse in the press when the price of epipen increased, even if patents are not to blame.

      The second of which has no direct hits, but does detail why Greg “I Use My Real Name” DeLassus has such a bug up his arse in dealing with me (he is clearly wrong on exhaustion principles, and won’t admit that I clearly have the better position).

    3. 5.3

      In fact, Ben, searching outside this site does not help either as I find NOT link to the repair/replace issue at point in this thread.

      I do find things like the following: link to cbsnews.com

      that only confirm my other writings that the solution to the price gouging of the ENTIRE Pharma chain world (including the ancillary ‘hands on’ and ‘hands in the pockets of’ such entities as ABPA) would be best served with sunshine and letting the public CLEARLY see all of the machinations in that world.

      Mind you, I recognize that such is a completely different topic. But I have not found the view that you speak of (and again, I am not saying that it is not out there).

      1. 5.3.1

        ooops… “NOT” => “NO”

    4. 5.4

      Ben…?

      Ben…?

      Are you out there, still trying…?

  2. 4

    See this Wikipedia entry for horse-trading within the EU , what to do about patent rights on auto parts like wing mirrors.

    link to en.wikipedia.org

    The argument in the context of “must fit” and “must match”, in the context of a Union of 28 Sovereign States, each of which has its own long-standing jurisprudence governing its own domestic spare parts industry, is a real hot potato, very contentious.

    1. 4.1

      Were you going to attempt a substantive point about the US Sovereign law at point here?

      Maybe venture a possible lesson from applying some comparative law analysis?

      If not — that’s cool; the link itself is interesting and I do wonder (since the US does not have an Industrial Design law per se) — and since we both know that in the US Sovereign, treaties are typically NOT self-executing into our Sovereign Law — how any enacting provision of Articles 25 and 26 of TRIPS may be in play here.

  3. 3

    I scanned the brief and frankly, I am completely unmoved for the desired result.

    The assertions simply are not substantiated — not in any way that places within the Court any sense of proper power to change the law.

    Maybe someone sees some powerful argument buried in the brief. If so, can you cull it out and present it with some (minimal) power of persuasion?

    1. 3.1

      … and it is very strange that the Aro cases were ignored.

      Almost beyond strange, as an attorney wanting to change the law should be upfront with the courts about what the current understanding of the law is.

  4. 2

    This seems like an area where design patents are appropriate – the consumer could buy an aftermarket mirror with a different design, and it would still provide adequate mirror functionality, but they want a specific design that matches the rest of the truck. The aesthetic nature of the item is an important feature, so why shouldn’t the designers of that aesthetic be entitled to royalties? If that raises the price on aftermarket parts such that people get functional but non-matching mirrors, that’s just the free market at work.

    1. 2.1

      This argument convinces me.

      1. 2.1.1

        But by the same token very possibly many of these same patents should be denied or challenged on obviousness grounds…

        1. 2.1.1.1

          Not sure if it is the same token, but I will go (at least one step) further and note that Design Patent Law should be completely redone and stricken from the utility patent legal sphere.

          You want to protect expression? There is a different IP venue for that (other than patents).

      2. 2.1.2

        I think this argument convinces me too.

    2. 2.2

      LOL at the “free market” reference kin this context.

      You people really do crack me up sometimes.

      1. 2.2.1

        I’m pretty sure that he means “free market” GIVEN the existence of patent law.

        I know that you have an overall rather severe cognitive dissonance thing going with patents per se, but your “humor” in free market is a bit off, given the existing context.

        If — on the other hand — you wanted to advocate for a change in law; you may want to follow my lead at post 2.1.1.1 (to see how that is done).

        1. 2.2.1.1

          Free market does not mean “free beer” and leastwise in the US, Free Market has always existed (and is talked about in context of) some back drop of government regulations.

          Malcolm, this may be an effect of your “one-bucket” tendencies, but the world simply is far more grey than your strict polarizing desires would have it.

          There simply is NOT the ‘dichotomy’ present that you want to be there in discussions of Free Market and the presence of patents.

  5. 1

    Translation:

    Please legislate from the bench to change Design Patent Law.

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