ABSTRACT
The Department of Defense’s struggles to obtain repair rights from private contractors have reached crisis levels, with military personnel facing critical equipment delays while contractors fear losing valuable trade secrets. The 2025 bipartisan ‘Warrior Right to Repair Act’ attempts to address this problem but has generated fierce opposition from industry groups. This Paper provides the first scholarly analysis of how trade secrecy law shapes the government’s perceived inability to obtain intellectual property rights from defense contractors. We demonstrate that the crisis stems not from irreconcilable legal conflicts, but from a failure to apply existing trade secret mechanisms for managed disclosure that commonly facilitate business-to-business transactions in the private sector. While the FAR appears to promise the government sufficient control over repair rights, in practice both sides distrust the current framework. By analyzing how trade secrecy’s built-in flexibility for balancing proprietary protection with necessary disclosure could work in procurement contexts, we propose reconceptualizing these transactions toward a ‘who-what-why’ transaction-based framework that accounts for the government’s special needs while preserving legitimate contractor protections. This reframing reveals that the tools already exist to resolve right-to-repair tensions in defense contracting and can be operationalized through tailored contract-by-contract negotiation.
Rowe, Elizabeth A and Kearby, Harrison, Trade Secrecy and the Government’s Right To Repair (January 1, 2026), Virginia Public Law and Legal Theory Research Paper No 12-2026; Virginia Journal of Law and Technology, Forthcoming.
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