New draft bill on the ‘Right to Repair’ and its impact on Intellectual Property in Germany

With Directive (EU) 2024/1799 on common rules promoting the repair of goods (‘Right to Repair’), European legislators are pursuing the goal of promoting repairs for reasons of sustainability – including repairs through independent repair shops and the use of refurbished products.

This objective is in tension with existing IP rights, in particular patents, but also trademarks and design rights. According to the principle of exhaustion, which applies (among other areas) in patent law, the intended use of a product and a ‘simple’ repair of a product that has been placed on the market with consent of the right holder are permissible.  However, as soon as repairs amount to a ‘new manufacture’ of the patented item, there is a risk of infringement of property rights by commercial repair services and companies that remanufacture goods (‘refurbished goods’ within the meaning of the Repair Directive).

The Directive barely addresses this area of tension and expressly states that intellectual property rights remain unaffected by the new provisions. The concrete arrangement of the relationship between the ‘Right to Repair’ and IP protection is thus largely left to the Member States and their courts. We have already explained the background to the Directive and the challenges in IP law associated with it in more detail in this article.

Draft bill dated 15 January 2026

On 15 January 2026, the German Federal Ministry of Justice and Consumer Protection published a draft bill for the Act implementing the Directive.

The draft implements the Directive in German law in a manner closely aligned with its wording, in line with the aim of full harmonisation. For this purpose, it provides for a new Section 479e of the German Civil Code (Bürgerliches Gesetzbuch – BGB-E), according to which manufacturers shall not use hardware or software techniques that impede the repair of goods covered by the scope of Section 479a BGB-E, the new repair obligation. However, this only applies unless justified by ‘legitimate and objective factors including the protection of intellectual property rights’.

Furthermore, manufacturers shall, in particular, not impede the use of original or second-hand spare parts, compatible spare parts and spare parts issued from 3D-printing, by independent repairers, when those spare parts are ‘in conformity with the applicable law, such as product safety requirements or with intellectual property rights’.

Significance of intellectual property rights and potential consequences

The tension remains unresolved due to the almost unchanged adoption of the Directive’s exception provisions in favour of the protection of intellectual property rights. On the one hand, consumers are to be enabled to have repairs carried out by independent repair shops as easily as possible; on the other hand, any industrial property right held by the manufacturer is not relativised but expressly recognised in the act as a legitimate corrective. This corrective may be costly for independent repairers and refurbishers in certain circumstances, particularly in cases of relevant patent protection.

Conflict between intended use and new manufacturing

From an IP law perspective, there are many indications that the current legal situation will not change fundamentally as a result of the draft bill. The line between permissible repairs covered by the principle of exhaustion and impermissible new manufacturing remains of central legal importance in repair and refurbishment cases. In particular, under patent law, consumers are therefore likely to be granted only a ‘right to patent-free repair’.

Practical risks for independent repair shops and remanufacturers

For independent repairers, this is likely to mean that the new repair market will remain attractive only until they become the focus of patent or other IP disputes. The legal uncertainty as to when a repair is still be permissible will remain a significant risk factor for the business models of independent providers, especially in the case of complex, patent-protected products.

In the short term, it is expected that the political signal effect of the ‘Right to Repair’ and the new legal requirements will lead to an overall increase in repair activities, both by independent repairers and by manufacturers themselves. In the medium to long term, however, the market is likely to develop rather in favour of original manufacturers and patent holders. They hold the relevant IP rights and can offer repair services with legal certainty, whereas independent repairers without the corresponding licences will often be operating in a legal grey area regarding IP rights. While licence agreements between patent holders and independent repairers could enable an opening of the market, such licences would also have to be financed and could thereby relativise the price-based competitive advantage of independent repairers.

It remains to be seen in what form the ‘Right to Repair’ will actually be incorporated into German law. On the consumer side, it will certainly contribute to environmental protection. On the provider side, however, an IP-law minefield may emerge, and the already well-intentioned legal advice to carry out a freedom-to-operate (FTO) analysis in advance is likely to become even more important.