Deja vu all over again

In my regular perusal of the blawgs, especially the IP ones, I came across a rather heated discussion on Dennis Crouch's excellent Patently-O on the use of design patents (the US equivelant, roughly, of our registered designs) to protect designs for car parts. It's hard to believe that the Americans are only now tearing each other apart over this as we did in the 1980s ...
Each to their own, and the US law in this area is sufficiently different from ours as to make comparisons difficult. But I hope they don't make the same mistakes we made, pruning the duration of (unregistered) protection so there's hardly anything left, carving out exceptions to protection that are almost as wide as the protection was to start with, and capping it all off with compulsory licensing and licensing of right provisions. I always thought that the vehicle manufacturers lost the battle by overstating their case. And it wasn't a battle that should have been fought out in the intellectual property arena anyway: it raised important product liability and safety issues which should have been addressed as such.
I believe that US law on dealer protection has a great deal to teach us, so perhaps it's only right that we should offer them the benefit of our experience in dealing with design protection for parts.

US repair parts legislation: Automotive Services Association weighs in

The repair industry in the States is getting excited about a proposal that would do much the same as our legislation on spares: details of the Automotive Service Association's reservations about it are here. The legislation is the Access to Repair Parts Act, H.R. 3059, which will be considered shortly in the House of Representatives Committee on the Judiciary.

The ASA opposes this legislation because it contains no assurances about the quality and safety of non-OEM parts, and because it would deny businesses the ability to protect their intellectual property. ASA, along with other associations, wrote on 18 November 2009 to state their opposition to the bill. The letter is available on ASA’s legislative Web site, www.TakingTheHill.com. The letter says:

Manufacturers of unlicensed automobile parts have to meet only one basic threshold, to produce a copy that looks similar to an original part. Those who produce such parts incur no costs attributable to original design, research and development and most importantly, product safety testing. Accordingly, the manufacturer of the original product for whom such unlicensed replacement parts are made does not know how these parts will perform and how their use will impact the quality and integrity of the original product. Automotive collision repairers are very concerned about the quality of replacement crash parts. Permitting this intellectual property infringement also exposes consumers to significant safety, performance or durability risks.

All this is familiar to those of us who listened to the arguments on the Copyright, Designs and Patents Act back in 1987-8, or the EU designs legislation, or indeed the block exemption. Surprising, really, that the US has taken so long to have its own debate, although design protection has always been rather weaker there than here. It will be interesting to see how it turns out.

Things to Come

The Commission has now revealed its plans for motor vehicle distribution for the next few years. It has taken me some time to find time to write about it - there are too many other demands on my time, and every time I look at the volume of paper that the block exemption consultations generate I recoil in horror. So it is past time for me to write about them - and as I become more familiar with what is proposed the more comments occur to me.
First, though, a note on what is proposed. Most readers will probably be familiar with all this. The idea of finding a place for motor vehicle distribution agreements in the large safe harbour afforded by the vertical restrains block exemption (Regulation 2790/1999) rather than continuing to maintain a smaller safe harbour (a safe marina, perhaps) specially designed for them has been floating around for a long time. The Commission's latest plan to do precisely this was made public on 21 December: here is a link to the press release.
The idea is to wait three years before making the change for the vehicle market (or primary market, as it is being called: the terminology changes with bewildering frequency, and another example is the change from the vertical restraints block exemption to "general" block exemption). This is because, though it seems contrary to 25 years' experience, the vehicle market is considered to  be competitive, with low margins and competitive prices. Amazing. On the other hand, the aftermarket (thank goodness we can still use that expression) is highly brand-specific and less competitive, and the Commission thinks it would benefit from being brought sooner into the general safe harbour. Or perhaps that consumers would benefit from this. So that change is going to happen on 1 June, but don't worry that things are going to change dramatically, because there will still be a "mini-block exemption" (a species of legislation unknown to the Treaty on the Functioning of the European Union, another new piece of terminology though one that corresponds to a substantive change too) which will contain the special rules that we have come to love over the history of the block exemption.
Right, that's what's happening in general terms. I am now busy writing up the discussion of the new proposals at last week's Motor Law conference, and I'll post comments about specific matters as and when they occur to me. My subjective views aren't really appropriate for inclusion in what are supposed to be the proceedings of the conference.