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.

Comments

"Infringing"?

[JustAnotherOldGuy]

"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.

Re:"Infringing"?

[JustAnotherOldGuy]

I will take that bet regarding the last "month or so". And, I'll bet that the 50% that are still using paper print less than 3 documents per month

Every day in every office in every city in every part of the world, businesses print stuff on paper.
Almost anything dealing with the law or court involves printing documents, daily if not hourly.
Real estate offices churn out so much paper that it boggles the mind.
Virtually every government office in every country on Earth prints reams of stuff daily.

You may not be in an environment where much stuff gets printed but that doesn't mean it still isn't happening all around you every day.

A few weeks ago, I looked at my checkbook and the last paper check I wrote was January. Of 2014.

And my last one was written this morning. Lots of people write checks; just because you don't doesn't mean no one else is. Seriously, lots of people have a life different from yours and mine, and that life includes printing stuff.

Re:"Infringing"?

[rtb61]

It is not question of whether hard copies will be eliminated but how quickly it is finally reducing instead of a period when dot matrix printers first kicked in. One of the big wastes of paper was proof reading. Like many others I found proof reading on the screen inefficient and unreliable and needed to do it off a hard copy for any degree of accuracy, likely because of cathode ray tube displays and the visual problems they cause and this carried over into a habit even with LCD screens. I wonder how well the up and coming generation is going with proof reading on the screen rather than requiring a hard copy to check (think just there a nominal 50% reduction in paper use).

People just do not get it...

[wbr1]

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.

They may be legally in the right

[davidwr]

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.

Re:DRM is code for You Are Serfs

[PopeRatzo]

Corporate income tax rate in US is highest on the planet.

You dumb sonofabitch. Do you not know the difference between a corporate tax rate and how much a corporation actually pays?

http://money.cnn.com/2013/07/0...

Corporations in the US pay about as much as Ireland, which is known for it's low corporate tax rate. And less than Hong Kong.

The difference between the corporate tax rate in the US and the corporate tax rates in the rest of the developed world is that the rest of the world actually means what they say. It's not just a dodge to make citizens feel like corporations are paying their fair share, as it is in the US.

Bold print, 20% discount

[raymorris]

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.

Re:Is there _any_ difference?

[AK Marc]

Capitalism/fascism is where the corporations own the state. Communism is where the state owns the corporations. The results are similar, even if their philosophy is opposite.

Re:Bold print, 20% discount

[dgatwood]

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.