Aftermarket and Repair IP Checklist: Part Classification, Design Filings, Repair Analysis, Software Access, and Enforcement Triage

By Casey Scott McKay · 2025-09-06

This checklist runs an aftermarket position from either side, in the order that eliminates work rather than the order that feels doctrinal. Phase one classifies every catalogue item, because the classification decides which regime governs and disposes of most of the analysis. Phases two and three run the repair, reconstruction, and exhaustion doctrine that defeats the majority of patent assertions, then the component design patent question that is the manufacturer's strongest United States tool and the supplier's largest exposure. Phase four isolates software authentication, which decides the commercial outcome regardless of doctrine. The remaining phases cover information provenance, listing and refurbishment disclosure, warranty and antitrust exposure, right to repair compliance, and a seven-assertion demand letter triage.

IP and Technology > General IP | Checklist | Published 6 September 2025 - Updated 1 August 2026 | Casey Scott McKay - marksy.us

Summary. This checklist runs an aftermarket position from either side, in the order that eliminates work rather than the order that feels doctrinal. Phase one classifies every catalogue item, because the classification decides which regime governs and disposes of most of the analysis. Phases two and three run the repair, reconstruction, and exhaustion doctrine that defeats the majority of patent assertions, then the component design patent question that is the manufacturer's strongest United States tool and the supplier's largest exposure. Phase four isolates software authentication, which decides the commercial outcome regardless of doctrine. The remaining phases cover information provenance, listing and refurbishment disclosure, warranty and antitrust exposure, right to repair compliance, and a seven-assertion demand letter triage.

Keywords: aftermarket checklist · part classification register · repair and reconstruction · exhaustion analysis · section 117 service copy · component design patents · LKQ obviousness · total profits exposure · parts pairing · circumvention log · triennial exemptions · trafficking gap · information provenance · clean room records · nominative listing template · refurbishment disclosure · warranty anti-tying · antitrust exposure · right to repair compliance · demand letter triage

How to use this checklist

| Field | Detail | |---|---| | Who runs it | Product counsel with engineering, sourcing, and the listings team | | When | Before entering a category; on each catalogue addition; annually thereafter | | Time required | Two weeks for a forty-item range; sample for larger catalogues | | Gates | Classification recorded; design patent position priced; circumvention analysed | | Output | A part classification register, a circumvention log, and a listing template | | Companion documents | Building or Defending an Aftermarket Position and The Part That Broke |

The matter. A parts distributor with four thousand catalogue items across appliances, small equipment, and light automotive is expanding into a new appliance brand with a six-part launch range: a door seal, a pump, a control board, an outer door panel, a filter cartridge, and a diagnostic cable. It has received three demand letters in the past year, all answered with the same template. Its listings carry manufacturer logos. Its engineers examine competitor products bought from an online marketplace with no acquisition records. Two of its recent hires came from the manufacturer whose brand it is entering. Nobody has looked at the current circumvention exemption text.

Phase 1. Classify every part

[ ] Classify before analysing. Why. The classification determines which regime governs, and most of the analysis disappears once it is fixed. Trap. Running a full patent and trademark analysis on a door seal.
[ ] Wear items. Belts, filters, brushes, seals, blades, pads. Why. Repair doctrine is at its strongest, patents on the assembled product are exhausted, and the only question is whether the item itself is patented. Trap. Treating the manufacturer's assertion about the assembly as reaching the wear part.
[ ] Functional internal components. Pumps, motors, sensors, boards. Why. Design patents are weak because the part is invisible in use; utility patents on the component are the real question. Trap. Searching only for design patents because that is where the noise is.
[ ] Visible external body parts. Panels, covers, housings, lenses, grilles. Why. Component design patents concentrate here and the United States has no must-match exception. Trap. Assuming the exhaustion of the product patent covers the panel. It does not.
[ ] Electronic modules with firmware. Control units, authenticated components. Why. Software authentication governs and the analysis moves to circumvention. Trap. Clearing the patent position and shipping a part the machine refuses.
[ ] Consumables. Cartridges, cassettes, cells, capsules. Why. Historically controlled by post-sale restrictions that Impression Products v. Lexmark International removed from patent law's reach, now controlled by authentication. Trap. Reading the printed single-use condition as legally operative.
[ ] Software, tools, and data. Diagnostic tools, calibration files, documentation. Why. Governed by copyright, contract, and trade secret rather than patent, and increasingly by repair statutes. Trap. Filing them in the parts analysis, where none of the right questions get asked.
[ ] Classify each element of a mixed assembly separately. Why. A bracket and the authenticated module bolted to it are different problems. Trap. One classification per stock code.
[ ] [Gate] Record the classification in a register with the reviewer and the date. Why. It is the index for every subsequent analysis and the evidence that a considered process exists. Trap. Classification held in an engineer's head.

Phase 2. Repair, reconstruction, and exhaustion

[ ] Run this first, because it disposes of most patent assertions. Why. Aro Manufacturing v. Convertible Top Replacement permits a purchaser to preserve the useful life of a patented article by replacing worn or broken unpatented components from any source, and holds there is no legally recognisable difference between replacing one part and several. Trap. Conceding infringement because the product is patented.
[ ] Note that adaptation is permitted too. Why. Wilbur-Ellis v. Kuther allowed resizing and modification of a patented machine as repair rather than reconstruction. Trap. Assuming only like-for-like replacement is protected.
[ ] Test the facts against the reconstruction line. Single worn component: repair. Several over years: repair. Several at once on a functioning device: repair, and where a court looks harder. Rebuilding from a discarded shell: reconstruction. Buying scrap to rebuild: the strongest reconstruction case. Why. Reconstruction means making a new article after the original is spent, and it is narrow. Trap. Purpose evidence — a business that buys scrap generates documents that read as manufacturing.
[ ] Disregard single-use labelling. Why. Jazz Photo v. International Trade Commission confirms the manufacturer's characterisation does not control; what controls is whether the article was spent. Trap. A supplier declining a viable business because the box said single use.
[ ] Apply exhaustion. Why. Quanta Computer v. LG Electronics exhausts rights on an authorised sale of an article substantially embodying a patent, and Impression Products holds that sale exhausts all patent rights regardless of restrictions and that an authorised sale abroad exhausts United States rights — aligning with Kirtsaeng v. John Wiley & Sons. Trap. Treating a licence restriction on the seller's customers as a patent right against a downstream buyer.
[ ] Apply the Bowman limit. Why. Exhaustion permits use and resale of the article sold, not the making of new articles. Trap. Extending exhaustion to a business that manufactures rather than replaces.
[ ] Claim the 17 U.S.C. § 117 service copy. Why. It permits a person maintaining or repairing a machine to make a copy made solely by activating the machine, used for no other purpose, and destroyed on completion — enacted for exactly this problem. Trap. Independent service organisations conceding a RAM copy claim that this provision answers.
[ ] Check the contributory infringement elements before conceding. Why. 35 U.S.C. § 271(c) requires a component that is not a staple article and is known to be especially made for an infringing use, and where the repair is permissible there is no direct infringement to contribute to. Trap. Accepting a contributory theory that has no predicate.
[ ] [Gate] For a manufacturer: confirm whether any claim covers the component itself. Why. A combination patent on the assembled product cannot reach a replacement part, so the only reliable protection is a claim to the part — a drafting decision made years before enforcement. Trap. Discovering at enforcement that the portfolio claims only assemblies.

Phase 3. Component design patents

[ ] Search for design patents on every visible external part. By classification and by assignee, not only by keyword. Why. 35 U.S.C. § 171 protects the ornamental design of an article of manufacture, and a component is an article of manufacture. Trap. Component design patents are filed in volume with uninformative titles and are missed by keyword searching.
[ ] Accept that there is no must-match exception. Why. Several jurisdictions make design rights unenforceable against parts restoring a complex product's original appearance; the United States has repeatedly considered and not adopted such a provision. Trap. Advising on the basis of a foreign parent company's assumptions.
[ ] Price the remedy honestly. Why. 35 U.S.C. § 289 permits the infringer's total profits from the article of manufacture without apportionment. Trap. Modelling exposure as a reasonable royalty.
[ ] Apply the infringement test. Why. Egyptian Goddess v. Swisa confirms the ordinary observer standard assessed against the prior art as the sole test, and it does not require much similarity. Trap. Relying on minor cosmetic differences.
[ ] Run obviousness under LKQ Corp. v. GM Global Technology Operations. Why. The en banc Federal Circuit discarded the rigid framework requiring a primary reference basically the same as the claimed design, replacing it with a flexible approach aligned to the ordinary 35 U.S.C. § 103 factors — which makes component design patents genuinely attackable for the first time in decades. Trap. Relying on pre-LKQ advice that these patents are unassailable.
[ ] Search prior art in adjacent models, prior generations, and competitors' products. Why. The flexible standard permits combining references in ways the old framework forbade. Trap. Searching only the same manufacturer's line.
[ ] Ask whether the part can be functionally equivalent without visual identity. Why. Possible for a bracket, a mount, or an internal housing; impossible for a body panel that must match. Trap. Spending design-around budget on a part where matching is the requirement.
[ ] Check whether the claim uses broken lines. Why. A design patent shown entirely in solid lines claims the whole appearance and is avoided by any visible change; broken lines disclaiming context produce a broader claim. Trap. Reading a narrow drafting error as a strong patent.
[ ] Assess trade dress separately and expect it to be weak. Why. Functionality bars protection for features dictated by fit and function, and a part that must match to work is close to definitionally functional, making 15 U.S.C. § 1125(a) protection thin. Trap. Conceding a trade dress claim on a replacement part.
[ ] [Gate] For a manufacturer: file at design freeze with broken lines and multiple scopes on high-volume parts. Why. The portfolio decision is made in the design review and is irreversible afterwards. Trap. Filing after launch, when disclosure has occurred.

Phase 4. Software authentication

[ ] Ask the only question that decides the commercial outcome: will the part function once fitted? Why. If the answer depends on a manufacturer's authentication, everything before this was preliminary. Trap. Clearing a part legally and shipping something that does not work.
[ ] Identify parts pairing where it exists. A chip in the component, a check against a signature or a server, and a part that does not work or works in a degraded mode. Why. It converts a lawful mechanical repair into a software authorisation problem. Trap. Discovering it in customer returns.
[ ] Move the analysis to 17 U.S.C. § 1201. Why. It prohibits circumventing a technological measure that effectively controls access to a copyrighted work, separately from any infringement. Trap. Continuing to argue patent exhaustion, which is correct and irrelevant.
[ ] Identify the governing circuit. Why. Chamberlain Group v. Skylink Technologies requires a nexus between circumvention and copyright infringement; MDY Industries v. Blizzard Entertainment expressly disagrees and requires none. The split is unresolved and determines whether an entire category of activity is lawful. Trap. Advising nationally on a question with regional answers.
[ ] Read the current triennial exemption operative text. Why. Repair exemptions of expanding scope have been granted across cycles, and the conditions live in the text rather than the summary. Trap. Relying on a commentary or on the previous cycle's rule.
[ ] Diarise the three-year cycle. Why. Renewal is not automatic. Trap. Operating in year four on a lapsed exemption.
[ ] Understand the trafficking gap. Why. The exemptions permit acts of circumvention while section 1201(a)(2) and section 1201(b) remain in force, so a technician may be permitted to circumvent and prohibited from obtaining the tool. Trap. Building a business on distributing a tool the exemption does not cover.
[ ] Consider the interoperability routes separately. Why. 17 U.S.C. § 1201(f) contains a statutory interoperability exception and Sega Enterprises v. Accolade established intermediate copying to discover unprotected interface elements can be fair use — two separate routes, both narrower than they appear. Trap. Conflating them. Run the interoperability discipline.
[ ] [Gate] Keep a circumvention log: measure, authority, text, date, two lines per part. Why. This is the only real legal exposure in most aftermarket businesses. Trap. An undocumented conclusion that the exemption covers it.

Phase 5. Information provenance

[ ] Buy on the open market and keep the invoice. Why. Reverse engineering from a lawfully acquired product is the foundation of independent derivation, and the proof is built at the time or not at all. Trap. Units bought from a marketplace with no record of source, date, or serial number.
[ ] Distinguish lawful from dangerous sources. Lawful: open market purchase, published specifications, public regulatory filings, observation in operation, information from unrestricted owners. Dangerous: documentation obtained under a confidentiality obligation, information from a former manufacturer employee, dealer portal access obtained through borrowed credentials, anything acquired under a licence prohibiting the use. Why. The two routes lead to opposite answers on identical technical facts. Trap. Accepting a service manual from a friendly dealer.
[ ] Run a clean room where the stakes justify it. One team examines and documents; a second designs from the functional specification alone. Why. It is the structure that makes independent derivation demonstrable. Trap. A nominal separation with shared personnel.
[ ] Screen hires from the manufacturer. Why. A design engineer joining from the original manufacturer creates a misappropriation risk no downstream discipline cures. Trap. Assigning the new hire to the programme covering their former employer's products.
[ ] Record the isolation where such a hire proceeds. Why. Contemporaneous evidence of screening is the defence. Trap. An informal instruction nobody wrote down.
[ ] [Gate] For a manufacturer: recognise the mirror position and its horizon. Why. Withholding diagnostic protocols, error code tables, calibration procedures, and service documentation is lawful and has the practical effect of a prohibition — and it is what repair statutes dismantle first. Trap. Building a strategy on a barrier with a legislative expiry date.

Phase 6. Listings, refurbishment, and trademark

[ ] Fix one listing template for the whole catalogue. Brand name in plain text, "compatible with" or "fits", no manufacturer logos, no packaging imitation, and a clear statement of who made the part. Why. Nominative reference is permitted where the product is not readily identifiable without the mark, no more of the mark is used than necessary, and nothing suggests sponsorship. Trap. Per-item review, which does not happen at catalogue scale.
[ ] Remove the four recurring failures. Manufacturer logos in listing images; layouts mimicking manufacturer packaging; the words authorised, official, or genuine applied to a compatible part; and model names in domain names. Why. Each is on the sponsorship limb, which is where nominative use fails. Trap. Logos supplied by a marketplace's own catalogue data.
[ ] Disclose refurbishment in three places. On the product, on the packaging, and in the listing. Why. Champion Spark Plug v. Sanders permits resale of reconditioned goods under the original mark provided the reconditioning is adequately disclosed, and Prestonettes v. Coty confirms a mark does not prohibit truthful description. Trap. Disclosure in the listing only, which does not travel with the product.
[ ] Screen for material differences. Specification, warranty, safety features, regional configuration. Why. Where the item differs materially from what the mark represents, genuineness does not save the sale — the exhaustion and material difference analysis transfers directly to refurbished goods. Trap. Reselling regionally configured units into a different market.
[ ] [Gate] For a manufacturer: assert only the three enforceable positions. Use suggesting authorisation, packaging imitation, and undisclosed refurbishment. Why. Asserting against accurate compatibility statements loses and invites a declaratory judgment action. Trap. A template letter that asserts all of it.

Phase 7. Warranty, antitrust, and repair statutes

[ ] Check the warranty language against 15 U.S.C. § 2302(c) today. Why. Conditioning a written warranty on the use of a branded article or service is prohibited unless provided free of charge or authorised by waiver, and the language survives in manuals because nobody reviews it. Trap. A five-minute fix with a real enforcement history, left unmade for a decade.
[ ] Distinguish the permissible position. Declining coverage for damage a third-party part actually caused is a factual question about that repair. Why. That is what remains available. Trap. A blanket condition dressed as a causation rule.
[ ] Assess the Kodak exposure on the manufacturer side. Why. A single brand's parts and service can constitute relevant antitrust markets notwithstanding competition in the primary equipment market, because information and switching costs prevent purchasers protecting themselves at original purchase. Trap. Assuming competition in the equipment market answers the question.
[ ] Note the narrowing. Why. Courts have distinguished Kodak where the aftermarket restriction was disclosed at original sale, Verizon Communications v. Trinko sharply limits refusal-to-deal claims, and Illinois Tool Works v. Independent Ink removed the presumption of market power from a patent in tying cases. Trap. Treating Kodak as a general prohibition on aftermarket control.
[ ] Keep patent misuse in view as a defence. Why. Available where a patentee has impermissibly broadened the scope of the grant with anticompetitive effect. Use the antitrust structuring discipline. Trap. Pleading it without the anticompetitive effect.
[ ] Map the right to repair statutes against the product lines. Parts, tools, diagnostic software, and documentation on fair and reasonable terms. Why. Coverage is defined by equipment category and by sale into the state, and a national line will fall inside several regimes with different definitions. Trap. One compliance answer for a multi-category catalogue.
[ ] Check whether the pairing practice complies. Why. Later statutes address parts pairing directly, prohibiting it or requiring that it not restrict repair — and satisfying parts availability while the software refuses the part satisfies the form and not the substance. Trap. A compliance programme that legislatures have already anticipated.
[ ] [Gate] Keep the two legal points straight. A repair statute does not override intellectual property, and it does not authorise circumvention under federal 17 U.S.C. § 1201 — and it does change the commercial architecture by removing the information barrier. Trap. Reading a state parts mandate as permission to copy a patented design.

Phase 8. Demand letter triage

[ ] Sort every letter into one of seven assertions before responding. Why. Five of the seven do not survive analysis, and answering them all with the same template wastes the two that matter. Trap. A single template, which is how the sample distributor has answered three letters.
[ ] Patent infringement by the replacement part. Check whether the claim covers the part or the combination. If the combination, Impression Products exhausted it and Aro makes the replacement permissible. Why. Most letters end here.
[ ] Contributory infringement by supply. 35 U.S.C. § 271(c) requires a non-staple component especially made for an infringing use, and permissible repair leaves no direct infringement.
[ ] Breach of a post-sale restriction. Check who is bound. It may bind the original purchaser in contract; it does not run with the goods and does not reach a downstream buyer.
[ ] Trademark infringement by the compatibility statement. Almost always nominative, unless the listing carries logos, packaging imitation, or authorisation language — fixable in an afternoon.
[ ] Trade dress in the part. Functionality is usually dispositive where the part must fit.
[ ] Design patent infringement on a visible component. Take this seriously. Run Egyptian Goddess on infringement, LKQ on obviousness, and price the 35 U.S.C. § 289 exposure. Trap. Answering it with the general template.
[ ] Circumvention under 17 U.S.C. § 1201. Take this seriously too. Identify the circuit, the measure, the current exemption text, and whether the tools were lawfully obtained. Trap. Assuming a lawful repair purpose answers it.
[ ] [Gate] Respond to the five weak assertions with a short accurate letter and a fixed listing, and do not settle them. Why. Settling weak assertions teaches the sender to send more. Trap. Paying a nuisance figure on an exhausted patent.

Phase 9. Working the sample matter

[ ] Classify the six launch parts before any analysis. Door seal — wear item. Pump — functional internal. Control board — electronic module. Outer door panel — visible external. Filter cartridge — consumable. Diagnostic cable — tool. Why. Three of the six are cleared by the classification alone. Trap. Treating a six-part range as one project.
[ ] Clear the door seal and the filter cartridge immediately. Why. Repair doctrine and exhaustion cover them, and neither is a plausible design patent candidate. Check only whether the item itself is patented and whether the cartridge is authenticated. Trap. Spending the analysis budget evenly across six parts.
[ ] Run a component patent search on the pump. Why. A utility claim to the pump itself is the only patent that survives exhaustion against it. Trap. Searching the appliance patents and concluding the pump is covered.
[ ] Stop the outer door panel pending a design patent opinion. Why. Visible external part, almost certainly covered, no must-match exception, and 35 U.S.C. § 289 total profits exposure. Run LKQ obviousness against prior generations and adjacent models before committing tooling. Trap. Launching the range with the panel because it is a good margin item.
[ ] Treat the control board as a circumvention question, not a parts question. Why. If the appliance authenticates it, the 17 U.S.C. § 1201 analysis decides whether the part is sellable at all. Trap. Tooling a board that the machine will refuse.
[ ] Treat the diagnostic cable as the highest-risk item. Why. It is a tool rather than a part, and the trafficking provisions reach its distribution even where an exemption covers the act of circumvention. Trap. Assuming an exemption for repair covers selling the means of repair.
[ ] Fix the listings this week, across all four thousand items. Remove manufacturer logos, replace with plain-text brand names and "compatible with", and add the maker statement. Why. It is one template change that resolves an entire category of exposure, and logos are frequently pulled in from marketplace catalogue data without anyone choosing them. Trap. Fixing the six new listings and leaving the rest.
[ ] Start acquisition records immediately and retrofit where possible. Invoice, date, source, serial number for every unit examined. Why. Independent derivation is the whole trade secret defence and it cannot be reconstructed later. Trap. Marketplace purchases with no serial record, which is the current position.
[ ] Isolate the two hires from the manufacturer. Why. Entering the brand they came from, with no clean room and no screening record, is the single largest misappropriation exposure in the matter. Trap. Assigning them to the launch range because they know the products.
[ ] Re-open the three answered demand letters and classify them. Why. A single template answered all three; the triage will show whether any was a design patent or circumvention assertion that was under-handled. Trap. Treating a closed file as resolved when the same manufacturer is about to receive a new competing range.
[ ] [Gate] Read the current circumvention exemption text before the control board or cable decisions. Why. Nothing has been checked, the cycle is three years, and renewal is not automatic. Trap. Launching on an exemption that lapsed.

Phase 10. Sector adjustments

[ ] Automotive: run obviousness on every high-volume collision panel. Why. Collision parts carry the heaviest component design patent coverage in any industry, and LKQ is the most significant development the sector has seen in years. Trap. Treating the pre-LKQ consensus as current.
[ ] Automotive: handle telematics separately. Why. Data and tool access run through the sector's own access arrangements rather than through general repair law. Trap. Analysing a data access question under the parts framework.
[ ] Agricultural equipment: lead with circumvention. Why. Software locks on machinery whose downtime is measured in a lost harvest, with manufacturer positions resting on emissions compliance, safety, and software integrity. Trap. Underestimating how far legislative pressure has advanced here.
[ ] Consumer electronics: check whether a self-service programme's pairing behaviour matches its parts availability. Why. Programmes supplying parts and manuals satisfy the form of repair access; the pairing determines the substance. Trap. Reading a published programme as compliance.
[ ] Medical devices: build the safety position alongside the legal one. Why. A genuine regulatory overlay exists — servicing can affect compliance status — alongside a serviceable claim that it is invoked more broadly than warranted. Trap. An independent service position with no documented safety framework, which loses the argument regardless of the law.
[ ] Aviation and rail: treat parts approval as the primary regime. Why. Unapproved parts are a certification problem before they are an intellectual property one. Trap. Leading with the exhaustion analysis in a certification conversation.
[ ] Industrial equipment: lean on 17 U.S.C. § 117. Why. Independent service organisations power on customer machines constantly, and that provision is what makes it lawful. Trap. Conceding a RAM copy claim the statute answers directly.
[ ] Printers and consumables: expect the analysis to be entirely circumvention. Why. The sector produced Impression Products and rebuilt equivalent control through authentication within a few years. Trap. Celebrating the exhaustion holding and shipping a cartridge the printer rejects.
[ ] Accessories rather than replacement parts: run a different analysis. Why. No repair doctrine question arises; the issues are compatibility, nominative reference, and any authentication the host device performs. Trap. Applying the parts checklist to a product that is not a part.

Phase 11. Records, scale, and annual review

[ ] Keep seven records, each a by-product of an existing process. The classification register; acquisition records for every unit examined; the clean room file where one is run; the circumvention log; the listing template and its approval; refurbishment disclosure samples by batch; and the demand letter file with triage classifications and outcomes. Why. Records requiring their own effort stop being kept in the third busy quarter, and these are the ones whose absence is discovered under cross-examination. Trap. A compliance folder nobody opens.
[ ] For a manufacturer, add three more. Design filing decisions at each design freeze, with parts covered and parts declined; safety substantiation for any restriction described as safety-based; and the annual aftermarket terms audit covering warranty language, point-of-sale disclosure, dealer agreements, and service network terms. Why. Each accumulates provisions nobody re-reads and several are unlawful in the form they take. Trap. An audit that reviews pricing and not terms.
[ ] Sample rather than exhaust at catalogue scale. Full analysis on every visible external component and every authenticated module; a documented default for wear items and internal components the doctrine already covers. Why. Forty items can be run properly in a fortnight; four thousand cannot and should not be attempted. Trap. An unstated sampling method, which reads as a gap rather than as a position.
[ ] State the sampling method in the register. Why. A considered approach documented at the time is defensible; the same approach undocumented is not. Trap. Explaining the method for the first time in a deposition.
[ ] Review the sample annually against the demand letter file. Why. The letters tell you which categories manufacturers actually assert, which is better targeting information than any prior assumption. Trap. Setting the sampling rules once and never testing them against outcomes.
[ ] Put counsel in the design review, on both sides. Why. For a manufacturer, the design filing, component claim drafting, and authentication architecture decisions are all made there and are irreversible afterwards. For a supplier, the classification and design-around decisions are made at the same stage. Trap. A practice organised around enforcement meetings, which is where the decisions have already been made.
[ ] Price the regulatory horizon into the roadmap rather than the litigation budget. Why. When a repair statute reaches a product category it arrives as a compliance obligation across the line, not as a case that settles. Trap. Treating a legislative trend as a litigation risk.
[ ] [Gate] Write down what the programme deliberately is not doing. Exhaustive per-item searching at catalogue scale, design-arounds on parts that must match, and pursuit of the unresolved circuit split. Why. A documented accepted limit is a governance decision; an undocumented one reads later as an oversight. Trap. Leaving the omissions implicit and being asked about them at trial.

Phase 12. The manufacturer's mirror checklist

[ ] Identify the durable positions and fund them. A design patent portfolio on genuinely ornamental visible components; utility claims to the components themselves rather than to assemblies; a service business competing on speed, quality, and warranty; and safety restrictions that are genuinely safety-based and substantiated. Why. These four survive both the doctrine and the legislative trend. Trap. Funding the fragile positions because they are cheaper.
[ ] Identify the fragile positions and price their horizon. Post-sale contractual restrictions stripped of patent force by Impression Products; single-use labelling that Jazz Photo confirms does not control; parts pairing used purely to exclude; warranty conditioning that breaches 15 U.S.C. § 2302(c); and information withholding that repair statutes dismantle first. Why. Each works today and each has a visible expiry. Trap. Building the aftermarket business case on all five.
[ ] File component design patents at design freeze, with broken lines and multiple scopes on high-volume parts. Why. Disclosure at launch ends foreign rights and the claim scope is fixed by the drawings. Trap. Solid-line claiming of the whole part, avoided by any visible change.
[ ] Draft component claims, not only assembly claims. Why. Exhaustion means an assembly claim cannot reach a replacement part. Trap. A portfolio that looks strong and reaches nothing in the aftermarket.
[ ] Substantiate every safety-based restriction with a specific failure mode. Why. Where a manufacturer can show it, the argument works with regulators and legislatures; where it cannot, it reads as pretext and weakens every other position. Trap. A generic safety statement applied across a product line.
[ ] Disclose aftermarket terms at the point of original sale. Why. Courts have distinguished Kodak where the restriction was disclosed at original purchase, because the information asymmetry that supported the aftermarket market definition is reduced. Trap. Disclosure buried where no purchaser encounters it, which achieves the customer irritation without the legal benefit.
[ ] Send only the two demand letter assertions that hold. Why. Five of the seven damage credibility and invite a declaratory judgment action. Trap. A template asserting all seven, which is how most aftermarket letters read.
[ ] Audit the aftermarket terms annually. Why. Warranty language, point-of-sale disclosure, dealer agreements, and service network terms each accumulate provisions nobody re-reads. Trap. An audit that never reaches the owner's manual, where the unlawful warranty language usually lives.
[ ] [Gate] Map the right to repair statutes against every product line annually. Why. Coverage is defined by equipment category and by sale into the state, and the category definitions move. Trap. A compliance answer built for one statute and applied to a national line.

Outcome. A part classification register covering every catalogue item with the regime identified, the searches done, and the reviewer named. A repair and exhaustion analysis that disposes of most patent assertions on its own. A priced design patent position on every visible external component, with obviousness assessed under the current standard. A circumvention log for every authenticated part, read against current exemption text and diarised to the cycle. Documented acquisition and clean room records supporting independent derivation. One listing template that satisfies nominative use at catalogue scale. Warranty language that complies. And a seven-assertion triage that spends the budget on the two letters that matter.

The five things people get wrong

Assuming repair infringes. Aro Manufacturing v. Convertible Top Replacement permits replacement of worn components without limit short of reconstruction, and Impression Products exhausts patent rights on sale regardless of any restriction imposed.

Missing the component design patent. It is the manufacturer's strongest United States tool, there is no must-match exception, and 35 U.S.C. § 289 total profits makes the exposure severe. It is also now attackable on obviousness under LKQ.

Stopping at the doctrine. The part may be entirely lawful and still not function, because a chip says so. That is a 17 U.S.C. § 1201 question with a circuit split at its centre.

Keeping no acquisition records. Independent derivation is the whole trade secret defence and it is built at the time of purchase or not at all.

Answering every demand letter the same way. Five of the seven standard assertions do not survive analysis; two do. A single template overpays on the five and under-prepares for the two.

Key Authorities at a Glance

| Authority | Proposition | |---|---| | 35 U.S.C. § 103 | Obviousness | | 35 U.S.C. § 154 | Rights conferred | | 35 U.S.C. § 171 | Design patents | | 35 U.S.C. § 271 | Infringement; contributory; staple articles | | 35 U.S.C. § 289 | Total profits remedy | | 17 U.S.C. § 109 | First sale | | 17 U.S.C. § 117 | Maintenance and repair copies | | 17 U.S.C. § 1201 | Circumvention; exemptions; interoperability | | 15 U.S.C. § 1125 | False designation; trade dress | | 15 U.S.C. § 2302 | Warranty anti-tying provision | | Aro Manufacturing v. Convertible Top Replacement | Permissible repair | | Wilbur-Ellis v. Kuther | Repair and adaptation | | Jazz Photo v. International Trade Commission | Refurbishment as repair | | Impression Products v. Lexmark International | Exhaustion on sale; international | | Quanta Computer v. LG Electronics | Exhaustion by authorised sale | | Bowman v. Monsanto | No making of new articles | | Kirtsaeng v. John Wiley & Sons | Copyright international exhaustion | | Champion Spark Plug v. Sanders | Reconditioned goods; disclosure | | Prestonettes v. Coty | Truthful use of a mark | | Eastman Kodak v. Image Technical Services | Aftermarket monopolisation | | Verizon Communications v. Trinko | Refusal to deal limits | | Illinois Tool Works v. Independent Ink | No presumed market power | | LKQ Corp. v. GM Global Technology Operations | Design patent obviousness | | Egyptian Goddess v. Swisa | Ordinary observer test | | Chamberlain Group v. Skylink Technologies | Circumvention nexus | | MDY Industries v. Blizzard Entertainment | 1201(a) distinct from copyright | | Sega Enterprises v. Accolade | Reverse engineering as fair use | | Right to repair statutes | State repair legislation | | Section 1201 repair exemptions | Triennial repair exemptions |