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The COVID-19 pandemic that has gripped the world since early 2020 has underscored the need for an effective right to repair medical equipment. As healthcare systems have been pushed to the limit, keeping critical medical equipment (such as ventilators) in working order has become a matter of life and death. Unfortunately, the ability of hospitals and other healthcare providers to service and fix their medical equipment is often hindered by the tight control that original equipment manufacturers keep over repair of their products. On top of direct contractual restrictions on repair, one of the major difficulties encountered by hospital-based and third-party service providers is the lack of access to service manuals, service keys, schematics, replacement parts, and repair tools. The ability to block access to these critical items is abetted, in large part, by intellectual property laws.

In August 2020, a new federal legislation was introduced to address this problem—the Critical Medical Infrastructure Right-to-Repair Act of 2020 (the “Act”). The Act was designed to facilitate repair of critical medical infrastructure during the current COVID-19 pandemic, and to do so, it addressed various relevant intellectual property issues. Although it failed to pass in 2020, the Act was the first attempt to enact federal repair legislation. Given this, this Article provides a critical analysis of the Act and examines the extent to which it could have served its prescribed goal. In addition, in the event the Act is reintroduced (or similar legislation is introduced) in the coming years, we provide constructive suggestions to improve it. We also investigate the role that courts could play, alongside such legislation, by using policy levers that already exist in intellectual property law to provide relief to hospital-based and independent service technicians and to mandate manufacturers to cooperate with them in certain circumstances.

Publication Citation

52 Seton Hall L. Rev. 461 (2021).