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Why Patent Law Shouldn't Block the Sale of Used Tech Products
An anonymous reader writes: Lexmark is best known for its printers, but even more important to its business is toner. Toner cartridges are Lexmark's lifeblood, and they've been battling hard in court to protect their cashflow. The NY Times has published an editorial arguing that one of their recent strategies is bogus: making patent infringement claims on companies who refill used cartridges. Think about that, for a moment: Lexmark says that by taking one of their old, empty cartridges, refilling it with toner, and then selling it somehow infringes upon their patents to said cartridges. "This case raises important questions about the reach of American patent law and how much control a manufacturer can exert after its products have been lawfully sold. Taken to their logical conclusion, Lexmark's arguments would mean that producers could use patent law to dictate how things like computers, printers and other patented goods are used, changed or resold and place restrictions on international trade. That makes no sense, especially in a world where technology products and components are brought and sold numerous times, which is why the court should rule in favor of Impression." The Times paints it as the latest attack on ownership in the age of DRM.
"Lexmark says that by taking one of their old, empty cartridges, refilling it with toner, and then selling it somehow infringes upon their patents to said cartridges"
The only thing it "infringes" on is their profits.
Just cruising through this digital world at 33 1/3 rpm...
The Times paints it as the latest attack on ownership in the age of DRM.
Only nobles and lord own land peon.
Welcome to subscription model everything, aka the internet of things, web 3.0, cloud connected pillows, etc.
What you do not own, you pay for in some way. What you do own you collect on, and guess what, there are only a few owners.
Silence is a state of mime.
Lexmark is arguing that their right to control imports is infringed by the importation of empty cartridges. Of course it is- otherwise all you'd have to do is find the random country where Lexmark didn't obtain a patent, produce empty cartridges there, and you'd circumvent the entirety of its patent.
Also, they argue essentially a license- that the cartridges were sold with a license that forbids their sale to a refiller. Seems not so objectionable to me.
The Times has an axe to grind and they're not afraid to distort what's going on to do it. Like saying the resale of imported copyrighted works is essentially the same...
A patent prevents you from using your property in the way you want. I can own metal and plastic but there are many configurations I am prohibited from arranging them because of patents. Why is this any different? The whole mess just needs to be done away with.
I love Jesus, except for his foreign policy.
Call it what it is and there's no problem. If I go find a HP computer in the trash and fix it up HP can't stop me from selling it.
Rent seeking - the parasite of the retail industry. Your printer cartridge is a vessel owned by the printer manufacturer. The ink is bought and paid for but it has to get into the cartridge to be used. No, you can't put your own ink in there because there's a magical lock on the vessel that prevents it. No, you can't break the lock because that's illegal (DMCA). Selling bottled ink so that end-users can fill their own cartridges is "supporting an infringing activity", so that's illegal too. Selling guns is okay though because murder isn't infringing anything, apparently. Well, except for someone else's right-to-live. They do this with books as well by curtailing gray-market sales of used books. You don't buy a book, you only buy a *license* to read it. No, the license isn't transferrable.
Patents? No. You can't patent the process of putting a liquid into a container. If that were true Starbucks could patent the process of "putting coffee in a cup" and we'd all be completely boned. Selling coffee beans would be "supporting an infringing activity". Pfft. Bullshit.
Morally, of course, it's enough to want me to boycott the company, but legally, they may be in the right
The law may be on their side, but only
* If the patent infringement is not on the toner cartridge per se but on the method of refilling it, AND
* there is no non-infringing way to fill the cartridge that's economically viable, AND
* if the patent is legally sound. Patents whose claims are overly broad or which fail to take into account prior art may be shot down if someone else decides it's cost-effective to take the patent-owner to court or to ask the Patent Office to review the patent.
Yeah, it sucks, but short of either changing patent law or getting some court to rule that anti-trust and restriction-of-trade laws require the patent-holder to broadly license the patent to all comers on reasonable terms or make some other ruling that kills off this business practice, I don't see what can be done about it.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Is the customer signing a contract? If so, what's the issue? If not, then fuck Lexmark.
“He’s not deformed, he’s just drunk!”
Going by their same logic, I can't refill a used milk carton either any more?
I may not like it very much, but I can sorta see the manufacturer winning this one, if that's the angle they take.
Of course, if the refiller uses a different technique for refilling than what the manufacturer's patent describes, then all bets are off... although an unscrupulous manufacturer may build their cartridges to self-destruct if they were refilled any other way.
File under 'M' for 'Manic ranting'
Using any replacement parts for your car other than your car manufacturer's is patent infringement?
Burnt your break lights? Changed your AC filter? Used a generic brand name? I'll see you in court!
This (should) come down to two things:
1) Right of first sale. It's a physical object you buy. It's yours to do with as you please.
2) There is absolutely no act of "inject ink into container" which could possibly have anything to do with a patent.
This is asshole corporations misusing IP laws to try to lock in their customers.
And it's yet another reason why Lexmark can go fuck themselves, and why every nerd should be telling their family "don't buy from them, they're assholes".
This not only needs to be ruled to say that they can't do that, but there needs to be some censure which firmly establishes nobody should every try to do that. Because it's complete crap to claim a patent can prevent you from filling an ink cartridge.
Lost at C:>. Found at C.
"RETURN EMPTY CARTRIDGE TO LEXMARK FOR RECYCLING Please read before opening. Opening this package or using the patented cartridge inside confirms your acceptance of the following license agreement. The patented Return Program 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 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."
So by buying the cartridge you are signing a contract to use the cartridge once and use the patents once. Plain and simple. Don't like it, don't buy it. If you break the contract by refilling it a second time, you are violating the contract and the patent license. Plain and simple.
Basically that rule says when you buy something, you own it and can do with it what you want. So, for a printer cartridge, if you refill it, you are only refilling what is already 100% rightfully yours! If you give it to a recycling company, it becomes their property, to refill and resell as desired. So, we need to add some teeth to the law that allows this sort of use more explicitly.
Bow to your corporate tax-avoiding masters who pay less than one percent in taxes, whereas 50 years ago they had record profits and paid 40 percent in taxes (after deductions from 50 percent).
Got patents?
Only if you're a Corporation.
Serfs don't get rights.
-- Tigger warning: This post may contain tiggers! --
Or Russian secret police
Law of first sale should be final. You don't own it after you have sold it. If its closed source software, you get binary (they can do with the binary what they like, and not many will). If its a box, then they get to take the box apart and turn it into a hat if they like. Complaining about other peoples ink is like a car company complaining about someone else's gasoline. Enough of this "you can't do this and you can't do that". The government is the arbiter of what is legal and not. Companies/Corporations don't get a say. If you don't want to sell stuff, then don't sell stuff. If you sell stuff, then once sold, you don't own it anymore. That was the trade you did for money.
The context was a move by Xerox to use copyright to prevent users from substituting third-party printer cartridges for their own. Supposedly such a substitution would require reverse-engineering their copyrighted lockout software preventing substitute cartridges.
At the time, this very Lexmark attempt to prevent refill of cartridges came up, and supposedly there had been a court decision preventing Lexmark from enforcing this rule.
I wonder what the pushback would be if suddenly they found themselves on the wrong side of a law suit.
... a condition where corporations replace the communist state as owner of everything and the people own nothing even if they pay for it ...
I really sad to say it, but you do to get out more
From the owner-slave perspective, corporations act like the communist states of yore because they are the owners and they will do whatever they could to protect their turfs
If you ever find yourself to be a customer, take note that to the corporations you are nothing but a slave - something that they own, something that they can squeeze profit from
Muchas Gracias, Señor Edward Snowden !
One court upheld it, another may not. The argument AGAINST Lexmark is pretty obvious. Two things argue FOR Lexmark. First, this has to do with discounted cartridges sold at a 20% discount IN EXCHANGE for agreeing to return them to Lexmark (and only Lexmark) for refurbishing. Cartridges without the discount and return agreement were widely available. Secondly, it's stipulated that the return provision was obvious on the signs and packaging, along with a statement "unrestricted catridges are available at Lexmark.com and elsewhere."
If I were the judge, I'd not allow Lexmark to REQUIRE consumers agree to those terms. But that's not what happened. I might ALLOW consumers to choose between an unrestricted catridge for $15 OR agreeing to return it in order to save $3. That's the case here. Consumers could have their cartridges refilled any where they please, or they could instead choose to get a discount by agreeing to return them only to Lexmark. In general, I have hard time making it illegal to offer consumers more choices.
Copyright and Patents are two completely different issues governed by different sets of law, so no , it is not "this very case,"
In fact, it is completely legally distinguishable
Was every store required to carry both SKUs? If the answer is "no" (and given how valuable shelf space is, I'd bet that it is), they're effectively forcing customers to buy what is readily available. And even if the answer is "yes", they still probably don't have a case.
Normally, a physical product (as opposed to something that has actual copyright protection) cannot be licensed. It can be sold, or it can be rented. Either the customer owns it or they don't. If they do, then they can do anything they want to with it. Once a product is sold, the original manufacturer has no legal right to limit its use. The SCOTUS has consistently tossed out attempts at post-sale restraint.
If a product is rented, there must be a legal contract in place, which means, among other things, that the customer must clearly understand that he or she is just renting the product, rather than buying it. If it looks too much like a sale, once again, post-sale restraint gets tossed out. And that's true even for cases involving patents.
I'd be utterly shocked if Lexmark won this, assuming it bubbles up to a high enough court. There's way too much case law precedent saying that they should get their a**es handed to them. It would require the courts doing a complete 180 from their consistent position on this issue over the last century.
Check out my sci-fi/humor trilogy at PatriotsBooks.
Is what it may be, but if Lexmark, (or more likely an industry group) lost this and decide they don't like the outcome they will purchase the correct laws through campaign contributions.
can show that they used naked dwarves to refill the cartridges. Would that be enough to make the refill methods that much different?
by TheSpoom (715771) Uncaring Linux user here. I have nothing to add to this but please continue. *munches popcorn*
You have a good point regarding precedent. Of course the landmark case specifically ruled "sold at full price", so it makes Lexmark sense that Lexmark is pointing out the discount.
Myself, I'm a bit conflicted. Obviously, some attempts to put limitations on things are unfair. On the other hand, I could see instances where agreements to sell with a condition make sense. Suppose I developed a tool for finding and buying things on eBay, which I successfully use for buying used RAID cards at the best prices. You want to buy baseball cards at the best prices. So I offer to sell you the tool, on the condition that you not use it to buy RAID cards, in competition with me. You can use it to buy anything else. That's fine with you, because you don't WANT to buy RAID cards, you want to buy baseball cards. Should it be illegal for us to make a mutually beneficial deal? (BTW I actually DID build such a tool, and it also benefits the sellers).
But that's an agreement between the consumer and Lexmark. It has nothing to do with the refiller, they were never a party to the agreement.
Aren't the IP rights for the cartridge exhausted by the first sale doctrine?
Said lockout software is illegal in Europe.
Aside from the fact that they're suing the refilling company and not the consumer who you're saying is the one who agreed to it, let's pretend they're suing the consumer. So then it's really a question of how much power seller should implicitly have over consumers. If it's a contract the consumer signed, then this makes sense. But to have it be automatic by virtue of purchasing a product? Should companies have control over how their products are used once they are purchased? If I purchase a Kenmore oven, should Kenmore be able to tell me what kind of food I can bake with it? Now if they offered me a discount in exchange for signing a contract saying I would bake pizza in it, then fine, if I signed the contract then I'm bound to it. If I go to Lowe's and see that it's 20% off and buy it...then what?
If I were the judge, I'd not allow Lexmark to REQUIRE consumers agree to those terms. But that's not what happened. I might ALLOW consumers to choose between an unrestricted catridge for $15 OR agreeing to return it in order to save $3. That's the case here. Consumers could have their cartridges refilled any where they please, or they could instead choose to get a discount by agreeing to return them only to Lexmark. In general, I have hard time making it illegal to offer consumers more choices.
An interesting relevant law in my state is this:
N.C.G.S. 75-36. Certain contracts relating to toner or inkjet cartridges void and unenforceable as a matter of public policy.
Any provision in any agreement or contract that prohibits the reusing, remanufacturing, or refilling of a toner or inkjet cartridge is void and unenforceable as a matter of public policy. Nothing in this section shall prevent any maintenance contract that warrants the performance of equipment under the contract from requiring the use of new or specified toner or inkjet cartridges in the equipment under contract.
I'm no attorney but it appears there is only a very narrow scope (a maintenance contract on the printer itself?) under which Lexmark could enforce something like this in North Carolina.
I'm not quite sure what to call this, but I think all IP rights should be dependent on the rights holder actively using their rights, to avoid companies just sitting on beneficial technology or publishers sitting on old, but good literature etc. So, perhaps if a patent is passive, it should go into the public domain after a relatively short time. There are many patents that are kept off the market simply because the owners think it would not be pritable enough, and it would hurt their competitiveness.
Universities in UK have an interesting way to address this issue: when they help research teams set up spin-off companies based on research results, they tend to hold on to the IP rights and only sell a licence to the spin-off; if the licence isn't actively used to develop a product, it is revoked and sold to somebody else. I think that is a very good idea.
I might ALLOW consumers to choose between an unrestricted catridge for $15 OR agreeing to return it in order to save $3. [...] In general, I have hard time making it illegal to offer consumers more choices.
Then what's to stop them from offering the restricted cartridge for the same $12, but increasing the price of the unrestricted cartridge to $5,000? Where do you draw the line?
The simple solution is to require Lexmark to sell the cartridge unrestricted, but allow them to buy the used cartridges back. They sell the cartridges for $15, and some consumers choose to return them for $3 each when they're out of ink. This option means the consumers have even *more* choice - they make the same decision, but they can choose to decide later on - while also killing an unconscionable business practice.
If you want to prevail in a case of so-called "intellectual property" you should have to prove that having you prevailing goes in the direction of promoting "the Progress of Science and useful Arts", because any decision in your favor that wouldn't stand this test would be a blatant violation of the COTUS, and an abuse of power by whatever entity that made this decision.
Disclaimers: IANAL IANAUSC
Claimer: "intellectual property" isn't a fundamental right
There's nothing like $HOME
The patent system is absurd. It needs to be radically changed before I have to pay General Motors royalty fees every time I put gas in the car!
Next the car companies will use the same logic to only allow approved gas and oil along with only allowing the trade in or resale through authorized dealers.
As itis the big auto makers are already trying to prevent owners from repairing their vehicles.
Can Toyota patent the batteries in the Prius, so that only Toyota can replace them? Can GM patent gas and oil, so you have to go to the dealer when you want more gas or oil for your car?
It's got nothing to do with patents, but what may be happening here is tortious interference. Lexmark may have a right to prevent the refiller from buying and refilling those single use cartridges, but only because it's interfering with their contract with the cartridge buyer, not because of some obscure patent.
In the previous discussion, the appellate court decision against Lexmark was hailed as a grand opening up of the third-party replacement market for ink and tone cartridges. So the IP-industrial complex crushed our freedoms using a slightly different legal subterfuge this time - the effect is the same.
But wait until the TPP passes and we finally get to know what's in it. We will fondly look back on the freedoms we enjoy in the present day.
CRONY capitalism is where the corporations own the politicians (state).
Free market capitalism does not involve the government at all, no buying of politicians.
If I pay a price to own it, it is mine to repair, destroy, misuse, maintain, etc. as I choose. If you lease it to me, it is yours. These two activities should not be obfuscated.
Choosing the lesser of two evils is a choice for evil.
Patent law applies to development and sale of products; resale of patented equipment is no more covered than resale of used copyrighted material is. The patent owner got compensated for use of their design when the product was first sold; that's all they get.
Now, if they had a business method patent for "ripping off printer buyers by forcing them to buy hopelessly overpriced ink", they might have a case, but that business method's old enough by now that any patents on it should have long expired; I was writing open source drivers for HP inkjets in the early 90s, so that's past the 20 year mark.
Bill Stewart
New Fast-Compression-only CPR http://preview.tinyurl.com/dy575ks