The Right to Repair, Refill and Recycle by Way of an Antitrust Defence

Comment on the Decisions Ricoh I, Ricoh II and Brother

Abstract

The contribution comments on three cases that concern the use of spare parts or refills for printers. In order to prevent the use of competing cartridges, the manufacturer in the Brother case made design changes to its printers that caused a malfunction of the cartridges supplied by an independent maker. The latter found this to contravene the Antimonopoly Act (AMA) and sued for injunctive relief and damages. The court acknowledged a contravention of the AMA, namely an unlawful tying. In the other two cases, the manufacturer Ricoh for its toner cartridges used a patented chip that upon a refill of ink no longer correctly indicated the amount of remaining toner. The ink refiller exchanged the patented chip of the cartridge in order to avoid this malfunction and thereby committed a patent infringement, yet relied on the defence that the cartridge maker had unduly obstructed competition (undue hindrance of a competitor’s business). The first instance court affirmed this defence and denied infringement, the appeal court acknowledged the defence in principle, but denied its application in the case at issue. The comment analyses the relationship between the AMA and IP rights and puts these cases into the general context of a “right to repair”.