The “Promoting Automotive Repair, Trade, and Sales Act of 2017 or the PARTS Act” H.R. 1879 sponsored by Rep. Darrell E. Issa (R-CA) (introduced 4/26/17) would make it not an act of infringement of a design patent to (1) make, test, or offer to sell within, or import into, the United States any article of manufacture that is similar or the same in appearance to the component part claimed in such design patent if the purpose of such article is for the repair of a motor vehicle to restore its appearance as originally manufactured, or (2) to use or sell such articles for restoration purposes more than 30 months after the claimed component part is first offered for sale as part of a component part of any motor vehicle in any country. The bill defines (1) “component part” as a component part of the exterior of a motor vehicle only (such as a hood, fender, tail light, side mirror, or quarter panel), excluding an inflatable restraint system or other component part located in the interior of a motor vehicle; and (2) “offer to sell” to include marketing or pre-sale distribution.
STATUS: Referred to the Subcommittee on Courts, Intellectual Property, and the Internet on 4/26/17.
COMMENTS: In recent years automotive OEMS have increasingly relied upon design patents to curb the manufacture, sale, importation or use of non-OEM collision repair parts. Parts manufacturers, insurers, collision repair shops and consumers have complained about the resulting higher prices. Replacement bumpers, fenders, door panels, etc. are supposed to look as much as possible like the original parts they replace. The bill in effect shortens the term of a design patent from 14 years to 2.5 years (from first sale) for the use or sale of collision repair parts used to repair or restore motor vehicle. It also allows collision repair parts suppliers to research, develop, make, and test collision repair parts on a not-for-sale basis during the shortened 2.5 year patent period. The avowed purpose of the bill is to increase competition, increase consumer choice and reduce prices.
In Europe, contrary to the provisions of the Community Design Right Directive (DRD), eleven of the member countries of the European Union exempt from design infringement the manufacture, sale and/or use of collision repair parts that might otherwise be covered by EU designs or national design patents. The European Commission has encouraged member countries for over 20 years to harmonize and adopt a similar “repairs clause” within the DRD, with no success to date.
The “You Own Devices Act” or “YODA” H.R. 905 sponsored by Rep. Blake Farenthold (R-TX) and Jared Polis (D-CO) (introduced 2/17/17) would amend the Copyright Act to allow the owner of a machine or other product operated in any part by a computer program to transfer an authorized copy of the computer program, or the right to obtain such copy, when the owner sells, leases, or otherwise transfers the machine or product to another person. Second, the bill prohibits waiver in any agreement of the right to transfer the computer program. Finally, under the bill, any right to receive modifications to such a computer program relating to security or error correction that applied to the original owner of the machine or product would also apply to the person to whom the machine or product and the copy of the computer program are transferred.
STATUS: The bill was introduced in the House on 2/7/17 and has not yet been referred to committee. An earlier version of the bill died in committee in 2015.
COMMENTS: The stated aim of the bill is to curb abusive End User License Agreements (or EULAs) which permit licensors to restrict use or transfer of the software within a device and thereby prohibit the sale, leasing or other disposition of the device to a third party. The bill would also allow the new owner of the device to have the same access to bug and security fixes as the original owner. The bill does not allow the original owner to retain a copy of the transferred software. Nor does it allow the new owner to make or install new copies of the software. For proponents of the bill, there is a similar need to reform Section 1201 of the Digital Millennium Copyright Act (DMCA), which in effect allows copyright owners to otherwise take away the same rights through the use of Digital Rights Management (DRM) measures.