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Why You Should Care About the Supreme Court Case On Toner Cartridges (consumerist.com)

Posted by BeauHD on from the bigger-picture dept.

rmdingler quotes a report from Consumerist: A corporate squabble over printer toner cartridges doesn't sound particularly glamorous, and the phrase "patent exhaustion" is probably already causing your eyes to glaze over. However, these otherwise boring topics are the crux of a Supreme Court case that will answer a question with far-reaching impact for all consumers: Can a company that sold you something use its patent on that product to control how you choose to use after you buy it? The case in question is Impression Products, Inc v Lexmark International, Inc, came before the nation's highest court on Tuesday. Here's the background: Lexmark makes printers. Printers need toner in order to print, and Lexmark also happens to sell toner. Then there's Impression Products, a third-party company makes and refills toner cartridges for use in printers, including Lexmark's. Lexmark, however, doesn't want that; if you use third-party toner cartridges, that's money that Lexmark doesn't make. So it sued, which brings us to the legal chain that ended up at the Supreme Court. In an effort to keep others from getting a piece of that sweet toner revenue, Lexmark turned to its patents: The company began selling printer cartridges with a notice on the package forbidding reuse or transfer to third parties. Then, when a third-party -- like Impression -- came around reselling or recycling the cartridges, Lexmark could accuse them of patent infringement. So far the courts have sided with Lexmark, ruling that Impression was using Lexmark's patented technology in an unauthorized way. The Supreme Court is Impression's last avenue of appeal. The question before the Supreme Court isn't one of "can Lexmark patent this?" Because Lexmark can, and has. The question is, rather: Can patent exhaustion still be a thing, or does the original manufacturer get to keep having the final say in what you and others can do with the product? Kate Cox notes via Consumerist that the Supreme Court ruling is still likely months away. However, she has provided a link to the transcript of this week's oral arguments (PDF) in her report and has dissected it to see which way the justices are leaning on the issue.

41 of 227 comments (clear)

  1. If I had my way... by YukariHirai · · Score: 4, Interesting

    If I had my way, you could patent whatever you like about the device, but third-party options for consumables must be available and their use not deliberately prevented or impaired by the device.

    1. Re:If I had my way... by ShanghaiBill · · Score: 4, Informative

      this matter has long been settled in cases such as the one that allows you to use whatever brand oil and consumables (filters etc) in your car

      Nope. "Right to repair" laws only apply to cars, not to products in general. They don't even apply to tractors and other vehicles.

    2. Re:If I had my way... by Solandri · · Score: 5, Insightful

      If I had my way, you could patent whatever you like about the device. But the moment you sell the device to someone they can do whatever they damn well want with it. As with copyright, the only thing patent protection should prevent is me from distributing copies of the device without the patent holder's permission. If I want to fill the cartridge with oatmeal and put it in my printer, it should be my right to do so by the First Sale doctrine (aka the exhaustion rule mentioned in summary).

      If the patent holder wishes to claim they still control the printer and cartridge, then they didn't sell it to me. They rented it to me. And like a landlord who is responsible for repairing things that break down in a rented apartment, they are responsible for fixing the printer if it breaks for as long as they claim they control the cartridge. i.e. If they claim the control the cartridge forever, then that is the same thing as saying the printer has a transferable lifetime warranty.

    3. Re:If I had my way... by Roger+Wilcox · · Score: 4, Insightful

      This is the only sane way to look at the issue. I paid you for product X; now it's mine. I do with it as I please.

      I want to pay someone to modify it? That's my right. It's mine now, remember?

    4. Re:If I had my way... by skr95062 · · Score: 4, Insightful

      Until the car companies pull a John Deere and claim DMCA.
      You must now use only authorized repair facilities to get your car serviced, parts are now covered by the DMCA.
      That is what John Deere is doing which is what sparked the right to repair bills in a lot of farm states.

      Lexmark abused the DMCA about 10 years ago and lost in court.
      Now they are trying the same thing with patents.
      If Lexmark wins this we all lose.

      The DMCA, providing bad law for over 20 years.

    5. Re:If I had my way... by rossz · · Score: 2

      I'd seriously like to see the courts side with consumers and insist Lexmar must refill the cartridge for free as long as I own the printer. Let's see how fast the printer companies back off from their outrageous claims.

      All of the printer companies have a history of abusing the legal system. Lexmar just happens to the worse offender.

      --
      -- Will program for bandwidth
    6. Re:If I had my way... by ShanghaiBill · · Score: 4, Informative

      Until the car companies pull a John Deere and claim DMCA.

      The "Right to Repair" laws prohibit them from doing that. But those laws only apply to cars.

    7. Re:If I had my way... by JaredOfEuropa · · Score: 4, Insightful

      It's not the courts that need to side with us, it's the legislators. We need them to agree to the principle of customer rights as GP outlined them. Good laws will follow from that, and good rulings from judges after. Merely hoping for judges to rule in our favour according to the few disjoint customer protection laws we have is not going to help; current laws are already stacked in favour of the likes of Lexmark.

      --
      If construction was anything like programming, an incorrectly fitted lock would bring down the entire building...
    8. Re:If I had my way... by Mashiki · · Score: 4, Interesting

      It's not the courts that need to side with us, it's the legislators.

      Bingo. Lot of people seem to forget that this has happened in the past with cars. All the automakers got together and decided that they'd push the 3rd party auto part makers into the dirt and you could only buy your parts directly from them. Laws got made because of that, and now auto companies must allow those manufactures to make parts right away. And by law, those same auto companies must manufacture all components of the vehicle for 10 years.

      --
      Om, nomnomnom...
    9. Re:If I had my way... by ProzacPatient · · Score: 4, Informative

      North Carolina shares your view (NCGS 75-36) and has done so since 2003.

      In fact it was Lexmark's business practices that prompted the General Assembly to enact this law, so you know it's gotta be bad when even politicians enact a law aimed directly against the interest of a big company with big pockets.

      Unfortunately I fear a SCOTUS ruling might invalidate, or otherwise be used against, state law on this matter.

    10. Re:If I had my way... by cob666 · · Score: 2

      But... but... Think of the shareholders... If the company can't turn everything they do into a rental business, how are they going to make their quarterly profit numbers to satisfy the market and allow the Execs to keep getting their bonuses... If they can protect this business by using and corrupting the legal system, all the better...

      Seems like many (if not all) companies no longer care about the long term stability of their company. They have all become so obsessed with short term profits that you have to wonder if any of them care at all about the 'big picture'?

      --
      Do what thou wilt shall be the whole of the Law - Aleister Crowley
    11. Re:If I had my way... by Spamalope · · Score: 3, Insightful

      Wherever did you find well meaning politicians?

      I think you meant: Overlapping groups of politicians accept lobbiest influence to pass laws causing problems but profiting a group able to get that influence. That causes problems for an increasing number of others as the first group's grip is squeezed, and eventually enough band together to buy enough influence to get a 'fixer' law passed. Many politicians just pretend to be dumb, so they plead 'last minute resistance' and amendments as the reason the law was altered to one that only partly fixes the problem. Politicians milk this as long as they can, eventually creating a tangle of competing laws that contradict leading to lawsuits and judicial rulings that start the whole thing over again. Every round profits the politicians. It's almost as though they're all lawyers who understand how to create and profit from conflict. Almost...

      So... where are these well meaning politicians?

    12. Re:If I had my way... by drinkypoo · · Score: 2

      Laws got made because of that, and now auto companies must allow those manufactures to make parts right away.

      That is a great benefit, but the fight there is not yet over. What's needed now is to make illegal any agreements that the suppliers who actually make these parts won't be able to sell them to consumers directly right away. It's not until that happens that it really becomes affordable to maintain a vehicle, and so there's a period in between the end of the warranty and the time when the suppliers start selling their parts into the non-dealer channels where it's prohibitively expensive to maintain vehicles.

      --
      "You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
    13. Re:If I had my way... by skr95062 · · Score: 4, Interesting

      What right to repair laws do you speak of?
      AFAIK Massachusetts is the ONLY state to actually have a right to repair law and that was ballot initiative.
      There is no law at the federal level, just an agreement.
      The Automotive manufactures agreed to a DEAL, htttp://www.autonews.com/article/20140125/RETAIL05/301279936/automakers-agree-to-right-to-repair-deal
      Why do you think there are so many states with right to repair legislation?
      It is because of what John Deere is doing now. You can fix your tractor but until John Deere authorizes the part it won't run.
      At anytime the Automotive industry can do the same thing and the DMCA would allow them to do it.

      The DMCA, Providing bad law for over 20 years.

    14. Re:If I had my way... by hairyfeet · · Score: 2

      Except a huge chunk of consumers simply throw the printer in the garbage and buy a new one creating a truly INSANE amount of e-waste, which is why this business model needs to be destroyed.

      I used to live in a large apartment complex and every month when the time for putting out electronics came around? There would be a fricking mountain of cheap printers piled up every single month. The reason why is obvious, the printer costs $30 new and the ink costs $50 so why buy new ink carts when you can just get another printer? If your city has an ewaste center you should go there and see the gigantic mounds of printers, just mountains of practically new printers everywhere.

      If you care about the environment? Its not solder you need to be bitching to your legislators about, its business models that encourage massive amounts of waste like this fucked up shit.

      --
      ACs don't waste your time replying, your posts are never seen by me.
  2. Fait Acompli? by Anonymous Coward · · Score: 5, Insightful

    The question before the Supreme Court isn't one of "can Lexmark patent this?" Because Lexmark can, and has.

    Excuse me? What have they patented exactly? A sticker saying "Do not remove"? Some software on the chip? And this invalidates my rights to buy, install, or use aftermarket parts or services because..... of.... what clause in patent law exactly?

    Is the author high, or trying to sneak in support for an invalid patent, or just plain confused? Patents affect who can make a product. Not the sale or use of the item after the initial manufactures sale. What clusterfuck corrosion of the rule of law have the patent lawyers hoisted on the body politic this time?

    1. Re:Fait Acompli? by jenningsthecat · · Score: 5, Insightful

      ...What clusterfuck corrosion of the rule of law have the patent lawyers hoisted on the body politic this time?

      "Rule of law"? Have you been living in a cave? Rule of law has been on the endangered species list for quite some time, and its prospects of survival are becoming more dire by the second. Corporations have been quite successful in their overt efforts make the rule of law follow the dodo into extinction.

      Nobody should be surprised by this kind of shit any more; the only surprise is that there seems to be no sign of the bloody revolution that usually follows such ongoing abuse by the rich and powerful. I guess they've perfected bread and circuses, (and public education), to the point where average people no longer care, or even realize, that they've been sold down the river into slavery.

      --
      'The Economy' is a giant Ponzi scheme whose most pitiable suckers are the youngest among us and the yet-unborn.
    2. Re:Fait Acompli? by srmalloy · · Score: 2

      Excuse me? What have they patented exactly? A sticker saying "Do not remove"? Some software on the chip? And this invalidates my rights to buy, install, or use aftermarket parts or services because..... of.... what clause in patent law exactly?

      Lexmark patented the design of the toner cartridges for their printers. Their argument is based on the premise that the long-standing "First Sale" doctrine doesn't apply, and that their patent rights extend to any subsequent use of their patented product, so that Impression Products' refurbishing and refilling, and subsequent sale of, expended Lexmark toner cartridges constitutes infringement of their patent. If SCOTUS rules in their favor, it would put a severe damper on, if not kill outright, the ability to sell refilled and remanufactured cartridges. Since I don't see (although IANAL) how a toner cartridge could be a sufficiently innovative and unobvious advance to justify a utilityt patent, this patent of Lexmark's would presumably be a design patent, which would have a term of 14 years; the ability to prevent knockoff and refilled cartridges from being sold would effectively give Lexmark a monopoly over sales of toner for its printers; I don't see many people continuing to use the same printer for more than fourteen years.

    3. Re:Fait Acompli? by drinkypoo · · Score: 3, Interesting

      Nobody should be surprised by this kind of shit any more; the only surprise is that there seems to be no sign of the bloody revolution that usually follows such ongoing abuse by the rich and powerful.

      A revolution never come with a warning
      A revolution never sends you an omen
      A revolution just arrived like the morning
      Ring the alarm we come to wake up the snoring

      --
      "You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
    4. Re:Fait Acompli? by drinkypoo · · Score: 2

      I don't see many people continuing to use the same printer for more than fourteen years.

      I'm still using a Laserjet 2300 which is from April 2003, you insensitive clod! I need to replace the pickup rollers again...

      --
      "You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
    5. Re:Fait Acompli? by Kjella · · Score: 4, Interesting

      Is the author high, or trying to sneak in support for an invalid patent, or just plain confused? Patents affect who can make a product. Not the sale or use of the item after the initial manufactures sale.

      35 U.S. Code 271 - Infringement of patent

      (a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.

      Use is in general covered. The court has in 1992 upheld this:

      The plaintiff in the case owned a patent on a medical device, which it sold to hospitals with a "single use only" notice label. The defendant purchased the used devices from hospitals, refurbished them, and resold them to hospitals. The Federal Circuit held that the single-use restriction was enforceable in accordance with the 1926 General Electric case,

      But now it's not so clear:

      The 2008 Supreme Court decision in Quanta Computer, Inc. v. LG Electronics, Inc., arguably leaves unclear the extent to which patentees can avoid the exhaustion doctrine by means of so-called limited licenses (...) At least two district courts have concluded that Mallinckrodt is no longer good law after Quanta.

      Can you avoid patent exhaustion by only giving a limited patent license? There is no clear answer in law, it's a common law doctrine. If they go back to the 1992 decision and say we meant that, the Quanta case was different then single use cartridges will be legal. The Quanta case was more if the product embodies all the essentials of the patent, the right is exhausted. In which case the sticker doesn't bind anyone else from reusing the cartridge.

      --
      Live today, because you never know what tomorrow brings
    6. Re:Fait Acompli? by FrankSchwab · · Score: 3, Informative

      Hah, got you beat - still using my LaserJet 6P from the mid-90s. Prints great, toner cartridge is an easy refill, and has a low power standby (unusual for the era). Absolutely problem free, unlike the dozen inkjets I've had in the same timeframe, and the only issue is that some postscript printouts take minutes per page. Why would I bother replacing it?

      --
      And the worms ate into his brain.
    7. Re:Fait Acompli? by mrchaotica · · Score: 4, Interesting

      Their argument is based on the premise that the long-standing "First Sale" doctrine doesn't apply, and that their patent rights extend to any subsequent use of their patented product

      ...which is fucking absurd on its face! After all, do people have the fundamental right to own property or not?

      And that is the real issue here: with the DMCA, and now with patents, these fuckers are trying to create some sort of bizarro-world where Imaginary Property is not only no longer imaginary, but somehow actually superior to the right to own actual property! They want to enslave us into perpetually renting everything we use, which is no less a tyranny than being paid in scrip and being forced to buy from the company store, or being a serf indentured to the land. It is nothing less than digital Feudalism, and must be stopped at all costs!

      --

      "[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz

    8. Re:Fait Acompli? by gnasher719 · · Score: 2

      Excuse me? What have they patented exactly?

      It doesn't really matter. They have patented _something_ and nobody claims that patent would be invalid. They then go on to claim that because they have some patent, nobody is allowed to refill their cartridges. And that's what should fail in court.

      The exception would be if they have a patent on refilling cartridges, then they can deny you the right to refill cartridges _using their patented method_, but they still can't deny you the right to refill cartridges in any other way.

    9. Re:Fait Acompli? by qeveren · · Score: 2

      That seems like an awful strange position for Lexmark to take; at no point did they license the patent to the end-user, because the end user isn't manufacturing printer cartridges, they're buying them. I mean, I could see a case if they were selling the cartridges along with some kind of contract agreement that you wouldn't do X with them, but that's nothing to do with patents.

      If this is actually how the OP describes it and it passes the Supreme Court, Americans really need to burn down their legal system and start over...

      --
      Don't just stand there, get that other dog!
    10. Re:Fait Acompli? by jenningsthecat · · Score: 2

      ...Simple solution: anyone who pays more in taxes than they receive in direct benefits is allowed to vote.

      Sounds to me like just another wealth / power concentration mechanism. Corporations axe employees; those employees lose income, so their taxes go down while the likelihood of them receiving assistance goes up. Some of them won't meet your 'eligible voter' criteria; as a result, the voter base is reduced selectively in a manner that favours those who support / benefit from corporate cost-cutting agendas. Consequently, government policies become still more favourable to corporations, even as there are fewer voters to oppose those policies. Lather, rinse, repeat.

      Also, note that in some ways the system has already devolved into something similar to what you've proposed. Lobbying + political donations form a far more powerful legislator-selecting and policy-shaping force than mere votes. That has positioned the dividing line between the 'super-enfranchised' and the merely enfranchised, rather than between the enfranchised and the disenfranchised - but other than that distinction, I think the current state of affairs is pretty similar to what you're advocating.

      --
      'The Economy' is a giant Ponzi scheme whose most pitiable suckers are the youngest among us and the yet-unborn.
  3. Note to self by future+assassin · · Score: 4, Insightful

    never buy anything Lexmark.

    --
    by TheSpoom (715771) Uncaring Linux user here. I have nothing to add to this but please continue. *munches popcorn*
    1. Re:Note to self by green1 · · Score: 2

      The catch is that it's starting to be "never buy anything" from anyone. There isn't a company on this planet that doesn't want this ability to control it's products after purchase, and they consistently get away with it.
      Once you get rid of all the companies that are trying to screw you over, you quickly find that there's nobody left to buy anything from.

    2. Re:Note to self by gnasher719 · · Score: 2

      The catch is that it's starting to be "never buy anything" from anyone. There isn't a company on this planet that doesn't want this ability to control it's products after purchase, and they consistently get away with it.

      It seems that I can get third party cartridges for my Brother laser printer quite easily. It seems that Brother doesn't try stopping others from making cartridges.

    3. Re:Note to self by fred911 · · Score: 3, Insightful

      I think HP is just as sleazy. Sending firmware updates to invalidate 3rd party cartridges, programing cartridges not to function beyond X impressions (regardless of ink/toner content). Razer blade sales tricks.

      --
      09 F9 11 02 9D 74 E3 5B - D8 41 56 C5 63 56 88 C0 45 5F E1 04 22 CA 29 C4 93 3F 95 05 2B 79 2A B2
    4. Re:Note to self by loonycyborg · · Score: 2

      Used cartridge market only exists because printer manufacturers shift significant parts of printer's price on printer cartridges. This price shift results in market distortion so market seeks to shift the price back. Only sane solution of this conflict is to have cartridge manufacturer as a separate corporation from printer manufacturer. Otherwise there's no way to prevent printer manufacturers from artificially distorting the market like this.

    5. Re:Note to self by Half-pint+HAL · · Score: 4, Interesting

      PSA: Canon printers (at least the cheapo models I've bought at walmart) will use whatever cartridge and let you bleed them completely dry, instead of suddenly refusing to work when they hit 10% full or whatever like some models. IIRC a warning light turns on when you're low on ink but you're free to just ignore it.

      Plus you don't need a color cartridge installed if you only want to print b&w.

      As I recall it, back in the 90s, clogged nozzles were a huge problem for inkjet printers. Canon addressed the problem by making the print-head assembly part of the cartridge, so if there was problem with the heads, new ink sorted it -- it resulted in a more expensive ink cartridge, but it was a selling point for a lot of customers. I believe Canon still have the heads on the cartridge (or at least for some models), although now with the massive profit margins on cartridges, theirs don't seem to be much different in price from other manufacturers'.

      This has also meant that with Canon, you can run ink cartridges as low as you like without risking damage to your printer -- with Epson etc, if you run the ink too low, you risk getting an airlock in the print head, killing the printer, so the devices are set to avoid letting you do that. This is also why Epson printers run so much ink through the heads after a cartridge change -- to clear the heads just in case the user had left it lying a week or so between changes.

      But if printers were designed to be maintainable, with modular heads that could be snapped out and replaced, this wouldn't be a problem....

      --
      Got them moderator blues I blieve I walk out the do', With these mod-points I been gettin', I 'most never post no mo'
  4. Rent not sell by gurps_npc · · Score: 4, Insightful

    Same answer as my last patent post.

    If you want to maintain control over something while gaining money, you RENT it.

    If you SELL it, you give up the right to tell people what to do with it.

    --
    excitingthingstodo.blogspot.com
    1. Re:Rent not sell by mrchaotica · · Score: 4, Insightful

      There's that fuzzy grey area in the middle now

      NO.

      That "fuzzy gray area" only exists in the delusional minds of tyrannical asshats and their boot-licking shills.

      --

      "[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz

  5. Personal vs Commercial use by Tukz · · Score: 2

    Can a company that sold you something use its patent on that product to control how you choose to use after you buy it?

    Isn't the key difference here that they did it for commercial use and profits?

    If I refill my toner myself, then no, they can't tell me how to use my product after purchase.
    If I refill empty toners and sell them, then it's entirely different.

    --
    - Don't do what I do, it's probably not healthy nor safe. -
    1. Re:Personal vs Commercial use by Jack+Malmostoso · · Score: 2

      This seems to me the core of the problem, and it's impossible to tell without knowing exactly what patents are being (allegedly) infringed upon.

      If it's just about the shape of the cartridge (which is a perfectly fine thing to patent, assuming that a proper technical effect has been found in the examination procedure), and if this company is effectively selling the cartridges without paying a royalty for the use of this shape of cartridge, then I can see how Lexmark has a case.

      If Lexmark is suing on grounds of "Use of our cartridge", and assuming they haven't claimed such use, then it's a very different story.

    2. Re:Personal vs Commercial use by Hognoxious · · Score: 2

      Despite what many bar-room lawyers think, doing it for yourself isn't a defense against patent infringement. The words are "Sell, make or use".

      Nobody is making imitation Lexmark cartridges. These cartridges have already been bought from Lexmark, at which point they're the customers' property. If you bought a car, you can sell it to someone else, you can pay whoever you like to repair or modify it, you can paint it luminous green. Why should this be different?

      --
      Confucius say, "Find worm in apple - bad. Find half a worm - worse."
  6. This. A judge's job is to read law, not write it by raymorris · · Score: 3, Insightful

    > It's not the courts that need to side with us, it's the legislators.

    Exactly. Writing law is the job of elected legislators. A ln appointed judge's job is to read and understand the law in order to apply it to a particular case.

    The current law on patents, written by legislators, is that a patent controls who can "make, sell, or use" the patented invention. The "sell or use" part needs to be fixed. Judges shouldn't just ignore the law as written whenever they unilaterally decide they don't like the law.

  7. Re: Why you shouldn't care... by Anonymous Coward · · Score: 4, Interesting

    You can't boycott them all, and this problem is bigger than just a printer cartridge. This barely scratches the surface.

    How about "abandonware"? Software not supported on your OS might be portable to another but there's no guarantee the original developer or new rights holder won't come after you. The storm might arrive a long time later as well: build a NES emulator and try selling it. You can get away with this right up to the point Nintendo decides there's some money in it. After that you'll get the rubber hose.

    There's no point in law that says "my manufacturer has abandoned my interests" that can be followed with "I will engineer my own solution". If Lexmark stops making toner tomorrow you still can't legally make your own toner. Sure you can try and you *probably* won't get sued but that's more to do with logistics than law - the DMCA stands.

    These things haven't been possible since we abolished fair use rights.

  8. Re:Why you shouldn't care... by Antique+Geekmeister · · Score: 2

    Except that this country can be barred from imports for failure to cooperate with repressive intellectual property laws. Related events occurred in Africa, where AIDS is more common that it ever became in the USA. The drug cocktails used to treat AIDS were prohibitively expensive to purchase for many of the patients, and some of these companies started manufacturing the drugs locally, in violation of international patent law.

    There are a number of good articles about the problem, such as https://cyber.harvard.edu/peop... .

  9. Re:As an American, let me say by SeaFox · · Score: 2

    I can't afford to own a printer.

    not even the throwaway $30 inkjet ones that are sold as an excuse to sell you ink cartridges that cost four times as much?

    Need to watch sales more, bro. I bought a Pantum wireless laser printer on NewEgg Flash for $25 with free shipping. Works with the Windows desktops, Linux desktops, and Mac laptops here with no issue. Bought it in August 2015 and it is just recently started displaying the notification LED that the original (lower yield) toner cartridge is running low.