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

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.

Comments

If I had my way...

[YukariHirai]

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.

Re:If I had my way...

[ShanghaiBill]

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.

Re:If I had my way...

[Solandri]

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.

Re:If I had my way...

[Roger Wilcox]

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?

Re:If I had my way...

[skr95062]

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.

Re:If I had my way...

[ShanghaiBill]

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.

Re:If I had my way...

[JaredOfEuropa]

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.

Re:If I had my way...

[Mashiki]

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.

Re:If I had my way...

[ProzacPatient]

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.

Re:If I had my way...

[skr95062]

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.

Fait Acompli?

[Anonymous Coward]

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?

Re:Fait Acompli?

[jenningsthecat]

...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.

Re:Fait Acompli?

[Kjella]

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.

Re:Fait Acompli?

[mrchaotica]

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!

Note to self

[future assassin]

never buy anything Lexmark.

Re:Note to self

[Half-pint HAL]

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....

Rent not sell

[gurps_npc]

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.

Re:Rent not sell

[mrchaotica]

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.

Re: Why you shouldn't care...

[Anonymous Coward]

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.