In order to determine whether refurbishing a patented item constitutes permissible repair or infringing reconstruction, a careful examination of all of the facts and circumstances regarding the work to be performed and the patent at issue should be made.

The leading Supreme Court case on the issue of repair versus reconstruction is Aro Manufacturing Co. v. Convertible Top Replacement, 365 U.S. 336 (1961), reh'g denied, 365 U.S. 890 (1961) (referred to as "Aro I."). In Aro I, the plaintiff owned a patent on a convertible top mechanism for an automobile. The patent covered a flexible top fabric, supporting structures and a sealing mechanism, all mounted on an automobile body. The fabric element normally had to be replaced every three years due to wear and tear. The rest of the elements lasted for the life of the automobile. The defendant manufactured and sold replacement fabrics without any license. The Supreme Court held that the sale of the replacement fabrics constituted permissible repair and stated that, "mere replacement of individual unpatented parts, one at a time, whether of the same part repeatedly or different parts successively, is no more than the lawful right of the owner to repair his property."

In subsequent cases dealing with the issue of repair and reconstruction, the Federal Circuit Court of Appeals has held that "re-tipping" a patented drill constituted infringement. In Sandvik Aktiebolag v. E.J. Co., 121 F.3d 669, 43 USPQ2d 1620 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1337 (1998), the Federal Circuit reversed a district court's grant of summary judgment where (1) the drills were "spent" before retipping, (2) the nature of the retipping work was more like reconstruction than repair, (3) the tip was not a detachable or replaceable part with an intended or expected life of temporary duration in comparison to the whole drill, (4) there was no substantial industry or market in replacement tips or re-tipping, and (5) there was no objective evidence that the patentee intended the drills to be re-tipped. In Sandvik, the defendant provided both resharpening and retipping services. There was no question that the resharpening of the drills was permissible repair. When the drill could no longer be resharpened, the retipping service was available. The retipping process included removing the worn or damaged tip by heating the tip to 1300 degrees Fahrenheit using an acetylene torch then brazing a new piece of carbide onto the drill shank.

In Bottom Line Management, Inc. v. Pan Man, Inc., 228 F.3d 1352, 56 USPQ2d 1316 (Fed. Cir. 2000), the Federal Circuit Court of Appeals held that permissible repair occurred where the defendant received used platens from authorized users of a patented cooking device and refurbished them. The patent claimed a platen which was an upper surface component for a two-sided cooking device. The platen had a Teflon-coated lower surface and studs welded to the upper surface. After a period of use, the Teflon surface wore off. The defendant received used platens from owners of the patented cooking device. The defendant cleaned the platens, replaced the Teflon coating, and repaired or replaced broken studs and returned the refurbished platen to the user. The Court held that the above activities constituted permissible repair.