Circular Economy IP Checklist: Process and Sorting Technology, Recycled Content Substantiation, Take-Back and Refurbishment Terms, Feedstock Supply Agreements, and Certification Marks

By Casey Scott McKay · 2023-10-21

A ten-phase working checklist for recyclers, reprocessors, refurbishers, brands running take-back programmes, and their advisers. Phases one and two inventory the business and protect the recovery technology and plant know-how. Phases three and four build the substantiation architecture and evaluate certification. Phases five through seven cover refurbishment and resale, take-back agreements, and feedstock supply. Phases eight through ten cover equipment licensing and data, producer responsibility obligations, and enforcement readiness. Each phase closes with a gate.

IP and Technology > General IP | Checklist | Published 21 October 2023 - Updated 3 December 2024 | Casey Scott McKay - marksy.us

How to use this checklist

The circular economy is four industries wearing one label, and this checklist is written so that each can use the phases relevant to it without working through the others.

A reprocessor runs phases one, two, three, four, seven, and eight. A refurbisher runs one, five, six, and ten. A brand running a take-back scheme runs one, three, six, and nine. An equipment vendor runs one, two, eight, and ten. Everyone runs phase one.

Each phase closes with a gate. The gates are conservative deliberately: this is a sector where the exposures accumulate silently — an unsubstantiated claim running for three years, a know-how position that was never documented, an equipment licence nobody read — and the gate is the point at which somebody has to say out loud that the work is done.

The doctrinal background is What Happens to the Material. The operational treatment with worked engagements is Advising a Recycling or Circular Economy Business. The cluster is assembled in the Circular Economy and Recycling IP Toolkit.

Phase 1. Inventory the business

[ ] Establish what comes in and under what arrangement: municipal contract, commercial supply agreement, deposit return scheme, brand take-back, or open market purchase. This determines supply security, provenance evidence, and whether the client has any contractual claim to the material.
[ ] Establish what goes out and what is said about it. Extract every factual assertion from the marketing materials, the specification sheets, the website, and the sales deck. Each is a representation.
[ ] Establish what the plant is and who built it. Owned technology, licensed technology, or purchased equipment; most operators are in the third category and have not considered what that makes them.
[ ] Ask what the client does that a competitor could not replicate. Expect "nothing special" and expect it to be wrong. This question surfaces the process know-how, which is usually the largest unprotected asset.
[ ] List whose brands and products pass through the client's hands, because for a refurbisher this is the entire risk profile and for a materials recycler it is the source of the branded-component problem.
[ ] Map the data flows. Modern sorting and processing equipment records continuously; identify every recipient, including automatic vendor telemetry.
[ ] List the contracts: feedstock in, off-take out, equipment purchase and support, take-back arrangements, and any producer responsibility scheme participation.
[ ] Identify who in the organisation could answer each of the above. In this sector the answer is frequently one operations person who has been there since commissioning, and that itself is a risk finding.
[ ] [Gate] The inventory is written down, dated, and owned by a named person.

Phase 2. Protect the technology and the know-how

[ ] Screen recovery processes, sorting apparatus, and materials formulations for patentability under 35 U.S.C. § 101, § 102, and § 103.
[ ] Draft chemical claims to survive 35 U.S.C. § 112, with genus and species scope supported by working examples. See Protecting a Chemical or Materials Invention and the Chemical and Materials IP Checklist.
[ ] Test whether a process claim is detectable. A competitor's internal process is not observable; where the process leaves a signature in the output, claim the product too. Where it does not, weigh secrecy — the choice preserved by Kewanee Oil Co. v. Bicron Corp..
[ ] Claim engineered organisms rather than isolated natural ones. Diamond v. Chakrabarty permits the former; Association for Molecular Pathology v. Myriad Genetics, Inc. and Funk Brothers Seed Co. v. Kalo Inoculant Co. exclude the latter.
[ ] Screen sorting and optimisation software for eligibility under Alice Corp. v. CLS Bank International and Mayo Collaborative Services v. Prometheus Laboratories, Inc., claiming the imaging system driving a physical ejector rather than the classification concept. See What Can Actually Be Patented.
[ ] Enumerate the plant know-how at artefact level: the blend specification, the contamination tolerance table, the commissioning reports, the shift log annotations, the maintenance intervals. "Our operating parameters" is not enumeration.
[ ] Apply reasonable measures under 18 U.S.C. § 1839 so a claim under 18 U.S.C. § 1836 is available: marking, access control, restricted distribution, onboarding and exit discipline, contractor confidentiality, and visitor controls. See Building a Trade Secret Program That Survives Litigation and the Trade Secret Protection and Departure Checklist.
[ ] Run the enumeration as an invention disclosure session too, because the same conversation produces both the secret register and the filing pipeline.
[ ] Diarise publication events. Trade shows, technical papers, and plant tours start the 35 U.S.C. § 102 clock, and this sector tours plants freely.
[ ] [Gate] The plant's competitive advantage exists as a document with an access log, not as institutional memory.

Phase 3. Build the substantiation architecture

[ ] Rank every live claim by exposure: how prominent, how specific, how easily disproved, and how central to the sale. Work the top of the list first.
[ ] Suspend or qualify the indefensible claims immediately. Every day an unsupportable claim runs is accruing exposure under 15 U.S.C. § 1125 and the state deceptive practices statutes.
[ ] Test each claim against 16 C.F.R. Part 260, which defines what the Commission treats as deceptive under 15 U.S.C. § 45.
[ ] Qualify "recyclable" unless facilities are available to a substantial majority of consumers or communities where the item is sold, and make the qualification clear and prominent rather than a footnote.
[ ] State recycled content as a percentage with pre-consumer and post-consumer separated. This is the sector's most common substantiation failure and it is a records failure more often than an honesty failure.
[ ] Measure degradable and compostable claims against customary disposal, which the Commission treats as landfill rather than an industrial composter most consumers cannot reach.
[ ] Substantiate carbon offset claims for additionality, absence of double counting, and disclosure of any delay beyond two years.
[ ] Remove unqualified general benefit claims — green, eco-friendly, sustainable — which are effectively unmakeable without qualification.
[ ] Specify a per-batch mass balance calculation tying input to output, with the method stated and applied consistently. A single historic calculation supporting a permanent claim is the failure mode you will find most often.
[ ] Contract for chain of custody records from the point of collection, because post-consumer status cannot be reconstructed afterwards.
[ ] Convert supplier assurances into contractual declarations with a record-keeping obligation attached.
[ ] Restate variable claims as verified minimums. "At least 30%" survives a challenge that "50%" will not.
[ ] Build a claims register listing each live claim, its substantiation document, its owner, and its review date, held by quality or compliance rather than marketing.
[ ] Note that regulatory compliance is not a defence to a competitor claim, following POM Wonderful LLC v. Coca-Cola Co., and that standing to bring one is governed by Lexmark International, Inc. v. Static Control Components, Inc.. See Selling Green, Getting a Label Right, the Environmental Claims and Cleantech IP Checklist, and False Advertising Under the Lanham Act.
[ ] [Gate] Every live claim has a named owner, a substantiation document, and a review date.

Phase 4. Evaluate certification

[ ] Decide whether the client is seeking certification or operating a scheme. The obligations are entirely different.
[ ] If seeking: read the scheme rules as a licence, because that is what they are. Establish disclosure obligations, rights in submitted material, audit access, withdrawal consequences, and permitted marketing use.
[ ] Confirm the scheme standard is at least as strict as the claim being made. Certification against a weak standard supporting a strong claim is worse than no certification.
[ ] If operating: register under 15 U.S.C. § 1054 and observe the control obligations at 15 U.S.C. § 1127.
[ ] Do not use the mark on the owner's own goods, which is a ground for cancellation.
[ ] Do not discriminatorily refuse to certify goods that meet the standard.
[ ] Actually control the standard: a scheme that has never withdrawn certification from anyone is evidence that it does not.
[ ] Draft the standard so it is testable, the audit so it is affordable, and the enforcement so it is used. See Certification and Collective Marks and the Certification and Collective Mark Application Checklist.
[ ] [Gate] The certification position is either properly held or properly declined, with the reason recorded.

Phase 5. Refurbishment and resale

[ ] Confirm exhaustion applies to the units in question. An authorised first sale exhausts patent rights in that article, domestically and abroad, regardless of post-sale restrictions — Impression Products, Inc. v. Lexmark International, Inc. — and extends to method claims substantially embodied in a sold component under Quanta Computer, Inc. v. LG Electronics, Inc..
[ ] Apply the copyright analogue at 17 U.S.C. § 109 as read in Kirtsaeng v. John Wiley & Sons, Inc.. See The Sale That Ends Your Rights.
[ ] Classify the work as repair or reconstruction. Disassembly, cleaning, component replacement, testing, and resale is repair under Aro Manufacturing Co. v. Convertible Top Replacement Co., and reconditioning with adaptation is permitted by Wilbur-Ellis Co. v. Kuther. Harvesting a patented component and building a new article around it is not.
[ ] Document what is done to each unit or lot, because the analysis is fact-specific and the record is the defence. See The Part That Broke and the Aftermarket and Repair IP Checklist.
[ ] Get the trademark disclosure right. State that the item is used, that it has been refurbished, and by whom — the Champion Spark Plug Co. v. Sanders requirement, anticipated by Prestonettes, Inc. v. Coty.
[ ] Test for material difference, since disclosure does not save a sale where reconditioning has changed the product enough that the mark misleads. The analysis mirrors Gray Market Goods and the Gray Market and Exhaustion Checklist.
[ ] Do not imply an authorisation that does not exist, in listings, packaging, or advertising.
[ ] Map the firmware position per product line: does the licence transfer, and does diagnostic access require circumvention under 17 U.S.C. § 1201? 17 U.S.C. § 117 gives owners only limited rights.
[ ] Identify the applicable right-to-repair statute and the current triennial exemption for the device class, and advise on the negotiated-service and prior-generation alternatives honestly.
[ ] Run a design freedom analysis before manufacturing replacement parts. Exhaustion does not apply to newly made articles, and a 35 U.S.C. § 171 registration analysed under Egyptian Goddess, Inc. v. Swisa, Inc. is the manufacturer's most effective tool. See Three Ways to Own a Shape.
[ ] [Gate] Every product line the client handles has a written repair-versus-reconstruction position, a disclosure form, and a firmware answer.

Phase 6. The take-back agreement

[ ] Specify permitted processing: refurbish and resell, harvest components, or break to material only. "Process in accordance with applicable law" answers nothing.
[ ] State title to the recovered material at each stage, which determines who may sell output, who bears liability, and what happens on the processor's insolvency.
[ ] Require destruction of branded components where the processor is breaking product to material, since a pallet of genuine branded housings is a counterfeiter's raw material.
[ ] Grant a defined licence with a quality standard where the processor is refurbishing under the brand, and confirm someone will actually inspect against it, because an uncontrolled licence risks abandonment.
[ ] Prescribe the disclosure language, its placement, and its persistence into the resale listing, satisfying Champion Spark Plug expressly rather than by reference.
[ ] Specify a data destruction protocol with evidence of completion, since recovered devices hold user data and the obligation is a security, privacy, and contractual matter at once.
[ ] Add a confidentiality clause covering what the processor learns about failure modes, component sourcing, and design compromises.
[ ] For a brand, add audit rights, output inspection, and an exit provision requiring return or destruction of remaining stock.
[ ] For a processor, add volume certainty, an arrival specification, and a cost allocation for material that turns out to be unprocessable.
[ ] [Gate] Six clauses present: permitted processing, title, marks and destruction, disclosure, data, confidentiality.

Phase 7. Feedstock and supply agreements

[ ] Express specification and contamination limits as measurable tolerances, since input quality determines whether the output claim is substantiable.
[ ] Contract for provenance records, not merely for material. Post-consumer status, geographic origin, and any ocean-bound characteristic must be evidenced or the downstream claim collapses.
[ ] Settle title in blended material before three suppliers' input is mixed.
[ ] Scope volume, term, and exclusivity with the ordinary competition considerations, since feedstock security is the sector's principal commercial advantage.
[ ] Establish regulatory classification: waste or product, which governs permits, movement, and documentation, with hazardous classification under 40 C.F.R. Part 261 changing the regime entirely.
[ ] Run the cross-border analysis where material moves internationally. See What the Border Asks and the Trade Compliance Checklist.
[ ] Draft force majeure for price collapse. Secondary material prices track virgin commodity prices, and a contract written at a peak fails at a trough by way of a supplier that simply stops delivering.
[ ] [Gate] Every claim in Phase 3 is traceable to a contractual record obligation in Phase 7.

Phase 8. Equipment licensing and plant data

[ ] Scope the licence to the plant rather than to a support term, covering affiliates and any contract operator.
[ ] Secure transferability on sale of the plant, since recycling assets change hands regularly and a buyer that cannot run the sorters has bought scrap.
[ ] Require source code escrow with real triggers and verify the deposit. See the Software Continuity and Escrow Toolkit.
[ ] Preserve third-party service and parts rights, and price any authorised-service restriction at purchase rather than discovering it at breakdown.
[ ] Preserve interoperability rights, since operators integrate equipment from several vendors. See Taking It Apart.
[ ] Decide who owns the waste stream data the equipment generates, who may aggregate it, and whether it may be used to train models. This is the term most often conceded by default. See Selling Something You Cannot Own and the Data Licensing Checklist.
[ ] Time the review to the renewal calendar, because identifying an unfavourable term eleven months before it can be renegotiated produces no value.
[ ] [Gate] The client knows what happens to its plant, its software, and its data if it sells the site or the vendor fails.

Phase 9. Producer responsibility obligations

[ ] Obtain the scheme rules for every jurisdiction in which the client participates, and read them as contracts rather than as regulation.
[ ] Identify data rights allocations buried in reporting obligations, since a scheme that collects data frequently claims rights in it.
[ ] Identify compelled disclosures of product composition, repair information, and design-for-disassembly documentation, which transfer information the brand currently holds as confidential.
[ ] Check for mandatory labelling schemes and whether participation constrains the client's own marks or artwork.
[ ] Plan for expansion rather than resisting it, since the legislative direction is towards more disclosure, not less.
[ ] Engage during consultation, which is the only stage at which scheme rules are influenceable.
[ ] [Gate] Somebody has read the scheme rules and can say what they require and what they claim.

Phase 10. Enforcement readiness

[ ] Decide what the client would actually enforce, since a claim it will not fund is a claim it does not have.
[ ] Confirm the trade secret record would survive a departure: enumeration, access logs, exit documentation, and a description of what the individual could reach.
[ ] Accept the limits of restrictive covenants and rely on documented secrecy discipline. See Where an Employee Can Go.
[ ] Prepare the false advertising position both ways, since a client with a defensible claims file is also a client positioned to challenge a competitor's. See Bringing and Defending a Lanham Act False Advertising Claim.
[ ] Record the branded-component route, so that when the client's housings appear on a marketplace it knows which processor received them.
[ ] Keep the refurbishment records in a form that would answer a repair-versus-reconstruction allegation.
[ ] [Gate] The client can say who it would proceed against, on what record, and in what forum.

The ninety-day sequence

For a client with none of this in place, the phases sequence naturally into three months.

[ ] Weeks one to two — Phase 1. The inventory. Expect to find at least one claim nobody can substantiate and at least one contract nobody has read since signature.
[ ] Weeks three to five — Phase 3. The claims triage. Highest value, lowest cost, and it removes the most acute exposure. Lead the engagement with it.
[ ] Weeks five to eight — Phase 2. The know-how enumeration, run as an operational workshop rather than a legal exercise. It produces the secret register and the filing pipeline together.
[ ] Weeks eight to ten — Phases 7 and 8. The contract review, timed to the renewal calendar.
[ ] Weeks ten to twelve — Phases 2 and 4. File on what the enumeration surfaced; start the certification application if it is worth pursuing.
[ ] Ongoing — Phases 5, 6, 9, 10 as the business requires.
[ ] [Gate] At twelve weeks the client has a defensible claims position, a documented secret, a filing pipeline, a list of terms to fix at renewal, and a register somebody owns.

The annual review

[ ] Reconcile the claims register against live marketing. Marketing changes copy faster than compliance reviews it, and drift is the normal failure.
[ ] Re-run the mass balance method against the current feedstock blend, since blends change and claims do not.
[ ] Check for new equipment and the terms that arrived with it.
[ ] Confirm the secret register still matches the plant, since three years of process improvement will have outrun the last enumeration.
[ ] Review supplier declarations for currency and for suppliers who have quietly stopped providing records.
[ ] Check the producer responsibility rules for amendments, which are frequent and rarely notified in a form anybody reads.
[ ] Re-test the refurbishment disclosure language against current listings, which sales teams edit.
[ ] [Gate] Nothing in the file is more than twelve months old and unverified.

Failures this checklist prevents

[ ] The "50% recycled" claim resting on one calculation from three years ago. Prevented by Phase 3.
[ ] The plant manager who left with the configuration nobody had written down. Prevented by Phase 2.
[ ] The branded housings from a take-back scheme appearing on a marketplace. Prevented by Phase 6.
[ ] The plant sale that fell through because the sorter licences would not transfer. Prevented by Phase 8.
[ ] The refurbished units seized because the listing implied factory authorisation. Prevented by Phase 5.
[ ] The certification obtained against a standard weaker than the claim it supports. Prevented by Phase 4.
[ ] The supplier that stopped delivering when prices collapsed and left the content claim unsupportable. Prevented by Phase 7.
[ ] The scheme reporting obligation that quietly transferred the client's composition data. Prevented by Phase 9.

Party-specific short forms

If you act for a reprocessor

[ ] Phases 1, 2, 3, 4, 7, 8, in that order. Phase 3 first if anything is currently being claimed in market.
[ ] Treat Phase 2 as the commercial priority. The plant configuration is the whole business and it is almost certainly undocumented.
[ ] Treat Phase 3 as the compliance priority, since the claims are what the customer is buying and what a regulator would examine.
[ ] Keep one operating file holding the secret register, the claims register, the equipment licence summary, and the feedstock contract terms. Four documents, one folder.

If you act for a refurbisher

[ ] Phases 1, 5, 6, 10. Phase 5 is effectively the entire engagement.
[ ] Build the per-lot record before volume grows, because retrofitting documentation across ten thousand units is not possible.
[ ] Standardise the disclosure language across every channel — product, packaging, listing, invoice, and advertising — and lock it so sales cannot edit it.
[ ] Map the firmware position per product line annually, since manufacturers change access controls between generations.
[ ] Decide in advance which manufacturer objections you will answer and which you will litigate, because the letters will arrive and an unprepared response concedes ground.

If you act for a brand running take-back

[ ] Phases 1, 3, 6, 9.
[ ] Accept early that third-party refurbishment is largely lawful and redirect the client's energy from prevention to control: disclosure standards, material difference enforcement, replacement part design registrations, and an official renewed channel.
[ ] Build the destruction and audit obligations into the processor contract and then exercise the audit, because unexercised audit rights are decorative.
[ ] Assign the quality inspection to a named person with time allocated, since a brand licence without exercised control drifts towards abandonment.
[ ] Read the producer responsibility rules before the reporting deadline, not after.

If you act for an equipment vendor

[ ] Phases 1, 2, 8, 10, all from the opposite side.
[ ] Price the customer's protections rather than refusing them, since transferability, escrow, and service access are reasonable asks and refusal loses deals to vendors who concede.
[ ] State the end-of-life position explicitly, because silence becomes an implied obligation to support indefinitely.
[ ] Settle the data position at sale, which is the only point at which the customer will engage with it.
[ ] Assume the equipment will outlive the product line and draft the information provisions accordingly.

Three worked applications

The converter facing customer diligence

A packaging converter markets sheet at "50% recycled content". A customer's procurement diligence asks for the calculation.

[ ] Phase 3, immediately. Establish when the figure was calculated, on what run, and whether the current blend supports it. Expect the answer to be: once, three years ago, and no.
[ ] Suspend the claim in its current form rather than defending it, because the exposure accrues daily.
[ ] Specify the per-batch mass balance with a stated method and restate the claim as a verified minimum, separating pre-consumer from post-consumer.
[ ] Phase 7 immediately afterwards, since the substantiation depends on supplier records the contracts do not currently require.
[ ] Phase 4 as the commercial recovery, because a certified 30% is worth more to the customer than an unverifiable 50%.

The refurbisher receiving a manufacturer's letter

An independent refurbisher of commercial equipment receives a demand alleging trademark infringement and unauthorised repair.

[ ] Phase 5 in full, in the order given. Establish exhaustion, classify the work as repair, and test the disclosure against Champion Spark Plug.
[ ] Identify which allegation is actually strong. In most such letters it is the disclosure or the implied-authorisation point, not the patent or the repair allegation.
[ ] Fix the weak point immediately — usually listing language — and answer on the rest.
[ ] Check the firmware position before asserting a general right to service, since 17 U.S.C. § 1201 may make the practical answer different from the doctrinal one.
[ ] Assess the replacement parts exposure separately under 35 U.S.C. § 171, which is where the manufacturer's real leverage usually sits.

The brand whose housings reappeared

A consumer brand finds genuine branded housings from its take-back scheme offered on a marketplace by an unrelated seller.

[ ] Phase 6 in reverse. Read the processor contract for a destruction obligation. If there is one, this is a breach claim with an audit remedy. If there is not, this is why the clause exists.
[ ] Trace the route through the chain of custody records, if they exist.
[ ] Assess the trademark claim against the marketplace seller, which is generally strong where the components are being sold as if for authorised use.
[ ] Amend the standard processor contract before the next scheme renewal, and add the audit that would have caught it.
[ ] Phase 10, recording what happened so that the next occurrence is a repeat rather than a discovery.

The four registers

Everything above produces documents. Four of them matter enough to name, and a client that maintains these four has done ninety per cent of the work.

The secret register

[ ] One row per artefact, with its location, its access list, its marking status, and the date it was last verified against the plant.
[ ] Reviewed annually, since a plant improves faster than a register does.
[ ] Owned by operations, not legal, because operations knows what changed.

The claims register

[ ] One row per live claim, with the exact wording, the channels it appears in, the substantiation document, the owner, and the review date.
[ ] Held by quality or compliance, never by the team rewarded for the claim being stronger.
[ ] Reconciled against live marketing quarterly, because copy drifts.

The contract register

[ ] One row per agreement — feedstock, off-take, equipment, take-back, scheme participation — with term, renewal date, and the four terms that matter: transferability, data, service, and exit.
[ ] Sorted by renewal date, because that is the only date on which the unfavourable terms become negotiable.

The product register, for refurbishers

[ ] One row per product line, with the exhaustion position, the repair-versus-reconstruction analysis, the disclosure language, the firmware answer, and the replacement parts design freedom position.
[ ] Updated per generation, since manufacturers change access controls and design registrations between models.

Four spreadsheets. None of them difficult. Their absence is why so much of this sector's legal spend goes on discovering things it already knew and could not prove.

A note on proportion

[ ] Scale the work to the operation. A single-site mechanical recycler with one commodity output and no claims beyond the specification needs Phases 1, 2, and 7, and nothing else.
[ ] Do not scale down Phase 1. The inventory takes a day and prevents most of what goes wrong, regardless of the size of the business.
[ ] Do not scale down Phase 3 where any environmental claim is made in market. Exposure there is not proportional to the size of the operation; it is proportional to the visibility of the claim.
[ ] Treat Phases 5 and 6 as mandatory only where other people's branded products pass through the client's hands. Where they do, they are the whole risk profile.
[ ] [Gate] The client and the adviser agree, in writing, which phases are in scope and why the others are not.

Six questions to open every file with

[ ] What do you do that a competitor could not replicate, and where is it written down? Phase 2.
[ ] What do you claim about your product, and who can prove it? Phase 3.
[ ] Whose branded goods pass through your hands, and what do you do with the branded parts? Phases 5 and 6.
[ ] Who owns the data your plant generates? Phase 8.
[ ] What happens to your equipment licences if you sell the site? Phase 8.
[ ] Which scheme rules bind you, and has anyone read them? Phase 9.

Six questions, answerable in a morning, and between them they scope the entire engagement.

What good looks like

[ ] The client can state, without research, what it does that a competitor could not, and point to the document that records it.
[ ] Every live claim has a name against it and a substantiation file somebody could produce within an hour.
[ ] Recovered branded components are destroyed on a schedule and the destruction is evidenced.
[ ] The equipment licences would survive a sale of the plant, and somebody has confirmed that in writing.
[ ] The refurbishment disclosure is identical across every channel and has not been edited by anyone in sales.
[ ] The waste stream data has an owner named in a contract, not by default.
[ ] The producer responsibility rules have been read by a person who can summarise them in a paragraph.

Seven statements. Very few operators in this sector can make all seven, and the ones that can negotiate from a position their balance sheets do not explain.

The underlying point is simple enough to state in one line: a sector built on limitation doctrines still has to keep records, because a limitation you cannot evidence is a limitation you cannot rely on when somebody finally asks.

Key Authorities at a Glance

The checklist draws on four bodies of law at once. Exhaustion, which gives the recovery sector its operating room, comes from Impression Products, Inc. v. Lexmark International, Inc. and Quanta Computer, Inc. v. LG Electronics, Inc., with the copyright analogue at 17 U.S.C. § 109 and Kirtsaeng v. John Wiley & Sons, Inc.. The repair line comes from Aro Manufacturing Co. v. Convertible Top Replacement Co. and Wilbur-Ellis Co. v. Kuther; the trademark rule on refurbished goods from Champion Spark Plug Co. v. Sanders and Prestonettes, Inc. v. Coty; and the practical obstacle to both from 17 U.S.C. § 1201 with 17 U.S.C. § 117.

The claims layer is 16 C.F.R. Part 260 against 15 U.S.C. § 45, enforced privately under 15 U.S.C. § 1125 with standing from Lexmark International, Inc. v. Static Control Components, Inc. and the compliance defence closed by POM Wonderful LLC v. Coca-Cola Co.. Certification runs through 15 U.S.C. § 1054 and 15 U.S.C. § 1127. The technology layer is ordinary patent law plus Diamond v. Chakrabarty, Association for Molecular Pathology v. Myriad Genetics, Inc., Funk Brothers Seed Co. v. Kalo Inoculant Co., Alice Corp. v. CLS Bank International, and Mayo Collaborative Services v. Prometheus Laboratories, Inc.; the know-how layer is 18 U.S.C. § 1836, § 1839, and Kewanee Oil Co. v. Bicron Corp..

| Authority | Phase | | --- | --- | | 35 U.S.C. § 101 | 2 — eligibility of recovery processes | | 35 U.S.C. § 102 | 2 — novelty and plant tour publication | | 35 U.S.C. § 103 | 2 — obviousness | | 35 U.S.C. § 112 | 2 — enablement and written description | | Diamond v. Chakrabarty | 2 — engineered organisms | | Association for Molecular Pathology v. Myriad Genetics, Inc. | 2 — isolated natural products | | Funk Brothers Seed Co. v. Kalo Inoculant Co. | 2 — natural principles | | Alice Corp. v. CLS Bank International | 2 — sorting software | | Mayo Collaborative Services v. Prometheus Laboratories, Inc. | 2 — the two-step framework | | 18 U.S.C. § 1836 | 2, 10 — federal trade secret claim | | 18 U.S.C. § 1839 | 2, 10 — reasonable measures | | Kewanee Oil Co. v. Bicron Corp. | 2 — secrecy versus filing | | 16 C.F.R. Part 260 | 3 — Green Guides | | 15 U.S.C. § 45 | 3 — the deception standard | | 15 U.S.C. § 1125 | 3, 10 — competitor false advertising | | Lexmark International, Inc. v. Static Control Components, Inc. | 3 — standing | | POM Wonderful LLC v. Coca-Cola Co. | 3 — compliance is not a defence | | 15 U.S.C. § 1054 | 4 — certification mark registration | | 15 U.S.C. § 1127 | 4 — control obligations | | Impression Products, Inc. v. Lexmark International, Inc. | 5 — exhaustion | | Quanta Computer, Inc. v. LG Electronics, Inc. | 5 — method claims and components | | 17 U.S.C. § 109 | 5 — first sale | | Kirtsaeng v. John Wiley & Sons, Inc. | 5 — foreign-made copies | | Aro Manufacturing Co. v. Convertible Top Replacement Co. | 5 — permissible repair | | Wilbur-Ellis Co. v. Kuther | 5 — reconditioning and adaptation | | Champion Spark Plug Co. v. Sanders | 5, 6 — disclosure on refurbished goods | | Prestonettes, Inc. v. Coty | 5 — truthful description | | 17 U.S.C. § 117 | 5 — limited owner rights in software | | 17 U.S.C. § 1201 | 5 — circumvention | | 35 U.S.C. § 171 | 5 — replacement part design rights | | Egyptian Goddess, Inc. v. Swisa, Inc. | 5 — ordinary observer | | 40 C.F.R. Part 261 | 7 — waste classification |

Further reading is collected at recycled content substantiation, green guides compliance, refurbished goods disclosure, take-back agreement trademark, and certification mark recycling.