Refilling Ink Cartridges Now a Crime?

Eric Smith writes "The Ninth Circuit has created box-wrap patent licenses. Now the label on the box that says "single use only" is given force of law, and if you refill the cartridge you are liable for patent infringement."

Comments

Read the opinion please.

[Phosphor3k]

It's not as cut and dry as the story title and summary implies.

Lexmark discounts certain cartridges with the understanding that the user will return the spent cartridges to Lexmark. Lexmark recycles the cartridges and sells them again. Lexmark got their panties in a bunch because another company was taking their prebated cartridges and recycling them, causing Lexmark to lose money. Lexmark isn't being quite as evil as they are made out to be, in this case.

That being said, Lexmark makes my pants sad.

Re:Read the opinion please.

[ScriptedReplay]

The point is (unless I missed it completely, in which case please correct me) Lexmark is saying "you get $30 off when you buy this cartridge if you send it back to us when it's empty." Now, if you buy it and claim the $30 rebate, you pretty much agree to ship back the empty cartridge to Lexmark - and not doing so (by refilling somewhere else) is the contract breach here.

That does not make everything good, but at least it's not the same thing as the inflamatory /. article. Let's bash Lexmark for the actual evil things they're doing, as there are plenty of those alread.

Re:Read the opinion please.

[harlows_monkeys]

If the business model isn't working, Lexmark doesn't necessarily have a legal recourse.

Myabe you should actually read the ruling. The business model is working, and Lexmark doesn't need nor did they seek legal recourse.

It was Lexmark that was sued, because the people that want to sell third-party remanufacturered cartridges are having their business hurt by Lexmark's success with this program.

Re:Only a matter of time.

[TFGeditor]

Actually, they are moving toward this in a similar underhanded way. Here's is a related press release.

The "Right to Repair Act"

Your pickup engine has a minor problem, but the only clue is a cryptic "Check Engine" idiot light on the dash. The trouble could be as simple as a stuck PCV valve or faulty plug wire. It might be something more serious (read "costly") such as a confused computer control module, but without a way to read the engine diagnostic codes from the computers--and more importantly, to translate what the codes mean--even diagnosing the defect let alone performing do-it-yourself cost effective repair is impossible, and vehicle makers are downright stingy with the information. Even your local mechanic cannot get the information he needs; it is sealed inside the dealership repair shop--probably in a cipher lock safe.

There ought to be a law.

Well, they are working on one--the Motor Vehicle Owners Right to Repair Act.

Since the Act, HR2048, was reintroduced in Congress on May 3 by Rep. Joe Barton (R-TX), Rep. Edolphus Towns (D-NY), and Rep. Darrell Issa (R-CA), and 22 additional congressmen have signed on as co-sponsors in support of the bill.

HR2048 has garnered support and praise from many quarters, especially from the American Aftermarket Industry Association (AAIA).

"We want to thank Representatives Barton, Towns, and Issa for spearheading this crucial piece of legislation that affects everyone who works in the aftermarket," said Kathleen Schmatz, President and CEO of AAIA. "The momentum in support of this bill is incredible as evidenced by the support of 22 additional congressmen. However, our work is just beginning. Based on the strong opposition that the car companies have been expressing on Capital Hill, we will need many more legislators signing on the bill to get it through during the current Congress."

The Motor Vehicle Owners Right to Repair Act is truly a bi-partisan bill. Of the 25 congressmen who currently support it, 12 are Democrats, 12 are Republicans, and one is Independent.

The legislation would that require car companies make the same service information and special tools available to independent repair shops as they provide to franchised dealer networks. Architects of the Right to Repair Act added new language to clarify that car company trade secrets are protected unless that information is provided to the franchised new car dealer. New language also provides more detail on the role of the Federal Trade Commission in enforcing the legislation.

"It's not about taking trade secrets and proprietary information from the car companies. These are clearly protected in the legislation," Schmatz said. "It is about fair trade and protecting consumer choice."

Independent repair shops and aftermarket accessory makers are not the only or even the targeted beneficiaries of HR2048. The language of the bill is clear that vehicle *owners* should have access to information whereby to affect repairs. One section states emphatically that vehicle owners should have access to information for "making, or having made, the necessary diagnosis, service, and repair of their motor vehicles in a timely, convenient, reliable, and affordable manner."

Here are some facts from AAIA:

Why This Bill Is Needed

Current automotive technology is being used to successfully "lock out" car owners from being able to repair and maintain their own vehicles. Modern automobiles contain many computers that control virtually every component such as the braking system, steering mechanism, air bags, ignition, and the climate control system.

Lacking the ability to "talk" to the car's computers, owners or their auto technicians cannot accurately diagnose and repair mechanical problems.

This means that later model cars will only be serviced and repaired at automobile dealerships, which makes shopping around for the best prices and most convenien

Please read ruling before commenting on it.

[The Monster]

Anyway, the one-time-use is fine, you cannot remanufacture their cartridges.

It's about nothing of the sort. As the lone voice of reason on the originating site points out, the case was not about the right to refill or remanufacture cartridges. Read the decision: [emphasis mine]

The dispute arises from Lexmark's advertising of its "Prebate" program, under which it gives purchasers an upfront discount in exchange for their agreement to return the empty cartridge to Lexmark for remanufacturing ...

Please read before opening. Opening of this package or using the patented cartridge inside confirms your acceptance of the following license agreement. The patented cartridge is sold at a special price subject to a restriction that it may be used only once. Following this initial use, you agree to return the empty cartridge only to Lexmark for remanufacturing and recycling. If you don't accept these terms, return the unopened package to your point of purchase. A regular price cartridge without these terms is available

These are people who took the money, then refused to do what they'd promised to do. If you don't want to be bound by these terms, don't participate in the program.

I code Lexmark replacements chips

[acidblood]

and here's the lowdown.

First, nowhere is it stated clearly, but I'm fairly sure they're not talking about inkjet cartridges but laser toners. These are the ones I code replacements for.

The chip in question is the Dallas-Maxim DS2432. It's an EEPROM with a twist: it uses some cryptography to perform authentication.

The idea is that the master (in this case the printer) and the memory can negotiate a shared key, which is done in the factory or during testing -- the chip doesn't use public key encryption, so it requires a key exchange `in the open' which must obviously be done before the chip reaches the customer. (Lexmark has done some ugly implementation mistakes in some printers but nothing THAT bad.)

So this key allows authentication of both the printer and the memory. After an authenticated read, the memory must compute a hash of some data (including a nonce and the last page read) and send it to the printer. If the hash matches what the printer was expecting, the printer is sure that the memory knows the shared key. (Unless stupid implementation mistakes are made that open the way for replay attacks.)

Conversely, when the printer asks the memory to commit a write, the memory requests a hash as well, to authenticate the printer. You may ask, `what's the point?' This memory holds data on how many copies were made, serial number and so on. If the memory just blindly wrote what it was told, remanufacturers could keep resetting the contents and reselling the cartridge.

So how do you build a replacement chip? Easy, get the key somehow and implement the protocols used by this memory on a microcontroller. Using an off-the-shelf DS2432 is impossible because these things have serial numbers with a fixed byte (the `family code') which is different from the same byte in Lexmark's DS2432s -- they probably buy so many of them that they were in a position to ask Dallas-Maxim to make batches of chips with modified family codes. A little bit of security by obscurity, but that wasn't a barrier to us -- it took less than a week to reimplement (in assembly) the DS2432 protocols on my favorite microcontroller architecture, the Texas MSP430.

Now, I don't like to get into the politics of this thing. Myself, I believe what I'm doing is perfectly fine and in fact the right of the consumer, EULAs and contracts and patents be damned. I wouldn't do it otherwise. Some people complain that Lexmark sold a discounted toner (called Prebate), on the basis that you would return it to them, and you didn't, and that's unfair. What they don't take into account is that your printer comes loaded with a Prebate cartridge, and with a small amount of toner to boot. Many if not most people just use this one cartridge that came with their printer, and keep remanufacturing it. The customer didn't have a choice in this -- if Lexmark offered a regular toner, or no toner at all, when the customer bought the printer, the situation might be less clearcut. As it stands, I see this as Lexmark forcing everyone to pay for a crippled toner, giving them no choice in the matter, and so they're perfectly justified to remanufacture it. (This might not be considered ethical by some, and is most probably illegal, but I don't care.)

Moreover, the prices they charge are completely absurd. I know this is standard practice in the industry, but I consider this highly immoral. Very few companies possess the technology to make a printer, but many possess the technology to remanufacture toners and cartridges. By imposing legal and technical hurdles on remanufacturing, printer makers are effectively enforcing a monopoly, and the worst thing is, some courts are sanctioning this monopoly. The traditional analogy with auto parts holds very well, and many other frightening scenarios haven't been explored -- what if the printer makers agree on a policy of no longer manufacturing toners and cartridges for printers older than 1 year so as to force everyone to upgrade and m

Re:Contract law...

[PyroMosh]

Actually, no. There are two types of contract for the pusposes of this discussion. The type found in an ELUA is what's called a "Contract of Adhesion". These are non-amendable / non-negotiable. They are "take it or leave it" contracts.

I posted a little more info about this here, or you can google for more info.