The Right to Repair: Patent Law and 3D Printing in Australia
Matthew Rimmer
Script-ed Volume 20, Issue 1, February 2023
Matthew Rimmer*
Abstract
Considering recent litigation in the Australian courts, and an inquiry by the Productivity Commission, this paper calls for patent law reform in respect of the right to repair in Australia. It provides an evaluation of the decision of the Full Court of the Federal Court in Calidad Pty Ltd v Seiko Epson Corporation [2019] FCAFC 115 — as well as the High Court of Australia consideration of the matter in Calidad Pty Ltd v Seiko Epson Corporation [2020] HCA 41. It highlights the divergence between the layers of the Australian legal system on the topic of patent law — between the judicial approach of the Federal Court of Australia and the Full Court of the Federal Court of Australia, and the endorsement of the patent exhaustion doctrine by the majority of the High Court of Australia. In light of this litigation, this paper reviews the policy approach taken by the Productivity Commission in respect of patent law, the right to repair, consumer rights, and competition policy. After the considering the findings of the Productivity Commission, it is recommended that there is a need to provide for greater recognition of the right to repair under patent law. It also calls for the use of compulsory licensing, crown use, competition oversight, and consumer law protection to reinforce the right to repair under patent law. In the spirit of modernising Australia’s regime, this paper makes a number of recommendations for patent law reform — particularly in light of 3D printing, additive manufacturing, and digital fabrication. It calls upon the legal system to embody some of the ideals, which have been embedded in the Maker’s Bill of Rights, and the iFixit Repair Manifesto. The larger argument of the paper is that there needs to be a common approach to the right to repair across the various domains of intellectual property — rather than the current fragmentary treatment of the topic. This paper calls upon the new Albanese Government to make systematic reforms to recognise the right to repair under Australian law.
Keywords
Patent law, patent validity, patent infringement, patent licensing, implied license, patent exhaustion, patent exceptions, crown use, compulsory licensing, competition policy, consumer protection law, the right to repair, 2D printing, 3D printing, additive manufacturing, digital fabrication, circular economy, sustainable development, Maker Movement, Maker’s Bill of Rights, iFixit, iFixit Repair Manifesto
Cite as: Matthew Rimmer, “The Right to Repair: Patent Law and 3D Printing in Australia” (2023) 20:1 SCRIPTed 130 https://script-ed.org/?p=4214
DOI: 10.2966/scrip.200123.130
* Dr Matthew Rimmer (BA/LLB ANU, PhD UNSW) is a Professor in Intellectual Property and Innovation Law at the Faculty of Business and Law in the Queensland University of Technology (QUT). He is the chief investigator in the ARC Discovery Project, ‘Inventing the Future: Intellectual Property and 3D Printing’ (2017–2021) (DP 170100758). Earlier versions of this paper have been delivered at the Right to Repair Symposium at Griffith University in 2020; the Copyright Law and Creative Industries conference in 2020; Remaking the Maker Movement in 2021; and the BEST Conference in 2021. This paper has also been informed by engagement with the Productivity Commission inquiry into the right to repair. The author would also like to thank the editors, and the peer reviewers for their useful and helpful feedback on drafts of this paper. This article was submitted and accepted in 2020 — and has been updated before publication in 2023.
