Okay, so the consumer gets paid in advance, in exchange for their promise to return the cart to Lexmark, and that's not a problem in itself -- but what if I'm not "finished with it" until after I've refilled it 3 or 4 times? is that prohibited in Lexmark's contract?
Perhaps not, but it's prohibited by the Ninth Circuit's ruling, which has made refilling of the cartridge an act of patent infringement.
Lexmark pushed this angle because they want to sue companies offering refilling services, not the end users. They could charge the end-user with breach of contract, but that wouldn't apply to the companies offering the service, since Lexmark didn't have a contract with them.
Parts of the ruling make reasonable sense, but there's a huge leap from breach of contract to patent infringement that seems completely unjustified.
The proper term you're looking for is "exhaustion"
The exhaustion doctrine is essentially synonymous with "first sale doctrine", and both are commonly used to refer to patents.
but again it doesn't apply here.
Prior to this Ninth Circuit ruling, why would you not expect it to apply to this case? Lexmark claimed that their patents were infringed, despite the fact that the patents were only used in a device manufactured and sold by Lexmark. Seems like it was a clear cut case of exhaustion/first sale until the Ninth Circuit stepped in to muddy the waters.
The courts have ruled that the patent owner has full control over how their patent is used regardless of "first sale".
Citations, please. That's counter to all the patent cases I've ever heard of. If it were true, the moment you drove your new car off the dealer lot, the automaker could sue you for infringing their various patents embodied in that automobile.
In the United States, patent is a statutory right that grants the patentee the right to exclude others from making, using, or selling a patented invention
Certainly, just as in the United States a copyright is a statutory right that grants the author the right to exclude others from copying a work.
But in both cases (patents and copyrights), the statutory right is NOT absolute. One of the limits on the right is the first sale doctrine (or exhaustion, as you prefer).
You can read a fairly simple overview of two cases regarding exhaustion as applied to patents on managingip.com.
A brief excerpt:
the well-established US legal doctrine of "first sale" [...] a fundamental of US personal property (or "chattel") law, whereby the purchaser within the United States of an article covered by a United States patent, or one that embodies a process covered by such a patent, has the same individual private property right to use and dispose of it as he or she enjoys with respect to a purchased article not covered by a viable US patent. These rights have been recognized by American courts since at least as early as the Supreme Court decision in Wilson v Simpson, 50 US (9 How) 109 (1850) and have been reiterated many times during the ensuing century and a half.
What part of "except as otherwise provided in this title" did you not understand? What would make you believe that Title 35 ("Patents") only applies to commercial use?
Can we arbitrarily construe other Titles of U.S.C. also to only apply to commerce? That would be quite handy! "No really, your honor, I didn't violate the law when I killed that eagle, because Title 16 only applies to commercial use."
Contracts of sale that don't require a signature have also been held to be unenforceable to the extent that they have provisions conflicting with the normal expectations a buyer has when purchasing goods. For example, a provision forbidding resale of the item.
See Novell v. Network Trade Center 25 F. Supp. 2d 1218.
The ruling says that you have to live up to your end of the agreement.
If that was all it said, I wouldn't be quite as upset. But it also says that if you don't live up to your end, it's not just breach of contract, but also patent infringement, despite the fact that the box-wrap license didn't even mention patents, and that the patents have nothing to do with whether you return the cartrigde or not.
Slashdot, the Fox News of Patents, has vaguely summarized a short article and omitted details that would significantly diminish the outlandish headline.
You can infinge every patent in the world so long as you do it for your own purposes.
Wrong. There is no exemption for personal use. Here's what the law says:
35 U.S.C. 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.
If you think there is some kind of personal use exemption, please cite the relevant U.S.C. section.
There is a limited exemption for "experimental use", but not all personal use qualifies. For instance, if I refill a printer cartridge in a manner that would otherwise infringe the patent, but do it to experiment with refilling techniques, that's probably exempted. But if I refill the cartridge and use it to print my TPS reports, that is not.
It is unlikely that Lexmark will bring a patent infringement suit against an individual end user for refilling his or her printer cartridge, but that does not mean that they are unable to do so.
Intel sued via over patents relating to their bus, but not because of any "box-wrap" patent license on the packaged processor.
In this case, Lexmark has asserted, and the court has affirmed, that putting the box-wrap license on the package not only is a binding contract that the user must comply with, but also that violating the box-wrap license constitutes patent infringement, even though the license didn't actually have anything to do with the patents.
They do have a contract. You'd know this if you had actually read the ruling.
They do now; they didn't before, because "box-wrap" patent licenses have AFAIK never previously been held to be enforceable, and instead the vendor would have had to get the purchaser to sign a contract.
Is it really that hard to read a short, clearly-written, court ruling before submitting a story to slashdot?
Is it really that hard to read a short, clearly-written comment on a story before submitting a followup comment to Slashdot?
It's your lump of plastic and assorted trace metals. However, it's their patented technology which you need a licence to use legally.
And you automatically get that license when you buy the product. That's the doctrine of first sale. That's why when you buy a Pentium 4, Intel doesn't immediately sue you for violating their patents as soon as you power it up.
This decision guts the doctrine of first sale by allowing any ridiculous labelling the manufacturer puts on the package to be interpreted as a legally binding contract.
If Intel wanted to sell you a Pentium IV that was only for use in motherboards Intel manufactured, all they would have to do now is put a label on the box stating "For use in Intel brand motherboards only". Then they could sue you for violating the license by putting the chip in an Asus motherboard, and sue Via for making a chipset that induced you to violate the license, and sue Asus for making the motherboard that induced you to violate the license.
the libertarians won't care. It's not the government that's pissing all over us, it's private enterprise. And that makes all the difference, doesn't it?
Wrong. The libertarians are vehemently opposed to the government granting monopolies. If the private enterprise can "piss all over us" without the government backing them up, so that the citizen can make an informed decision as to whether to be "pissed on" (e.g., whether to spend more money for a different brand of product that is less restricted), that would be a different matter.
That may be Lexmark's "understanding", but it's not mine, and until now it didn't have the force of law. In the past, if they wanted to make sure I returned the spent cartridge to them, they would have had to get me to sign a contract.
This ruling is a great victory for the people that want government protection for otherwise nonsensical business models, and (as usual) consumers get screwed royally.
Sure, but what if it is labelled "spring water"? Then if the manufacturer holds any patents on the product (which may or may not be related to the type of water in it), they can claim that your refilling the bottle with tap water infringes their patent because you violated the box-wrap license.
The doctrine of first sale normally means that the first unrestricted sale of a particular device embodying a patent "exhausts" the patent-holders control over the use of the patent in that particular device. In other words, once you buy a DVD that the manufacturer has licensed for the MPEG patents, the MPEG patent holders can't later tell you that you are not allowed to use the DVD player to watch MPEG content on Thursdays, or that you're not allowed to resell the player.
Apparently the Ninth Circuit thinks that the labelling "single use only" on the box is a legally binding contract, and thus the sale of the product to a consumer is not an "unrestricted sale".
If this is upheld, we can expect that soon all patent holders will be asserting all sorts of control over consumer products that they currently cannot. For instance, when you buy a new cell phone, it might have a label on the box stating that it is only for use with headsets from the same manufacturer. Up until now they've only been able to try to lock you in by putting a proprietary connector on the phone, and that only works until other manufacturers start producing headsets or adapters with that connector, but under the box-wrap precedent they may be able to use force of law to keep you from using an Ericsson headset with a Nokia phone.
Since it won't have a hard drive, I think Merrill Lynch has grossly overestimated the manufacturing cost. The Cell chip and BD-ROM transports won't cost Sony anywhere near $100 each; more likely it's around $30 for the Cell and $40 for the BD-ROM transport.
I'm somewhat surprised that they expect the unit to have a BD-ROM drive rather than a BD-RW drive, though the latter would probably add $10-15 to the manufacturing cost.
Of course, the manufacturing cost doesn't factor in the R&D cost. Merrill Lynch claims that Sony has spent over $1.8 billion for the development and production of the Cell chip. That seems rather high, but maybe the "production" part includes the cost of a new semiconductor fab, or part of the cost.
one a side note, they also prevent the owners of the hardware, i.e. the customers from making full use of their bought and paid for product.
I fully agree. I wasn't endorsing the business model, just telling it like it is.
that is immensely illegal...
Maybe some places. AFAIK, it's legal in the US. Unfortunately.
In fact, not only is it legal for them to do that, but they've made it illegal for us to do anything about it (DMCA anti-circumvention provisions). And unfortunately there have been court rulings in multiple countries that "mod chips" are illegal, even if they can be used for legal purposes.:-(
the user interface on games-boxes-acting-as-DVD-players isn't exactly slick
It's hardly any worse than the typical three-million-button remote control that standalone DVD players come with. "Where's the damn pause key?" Disgust with that is one of the main reasons I bought a Pronto.
PFC makes the current waveform closely match the voltage waveform.
Non-PFC switching power supplies draw almost all of their current at the voltage peak, and almost none at lower voltages. Although this is a different effect than inductive loads, which have their current waveform phase-shifted from the voltage waveform, the net effect is the same in both cases: there is more energy wasted, and more generating and distribution capacity required than a purely resistive load would require.
Contrary to your claim, computers and other devices with switching power supplies definitely ARE one of the major causes for the European PFC requirements.
how is sony going to cram a bluray player, ps3 multi core cell processor, a video card similar to a geforce 7800, usb, ieee, hard drive, etc for it's purported 5-600$ or so price tag.
Of the items you list, only the hard drive is expensive. Are you sure there's going to he a hard drive in the standard unit (as opposed to an option)?
In any case, even with a hard drive, the BOM cost should easily be under $500. If they are trying to compete aggressively with Microsoft, they'll set the wholesale price near or even below the manufacturing cost, and plan to make their money on game sales and licensing.
That business model is nothing new to the game console industry; in fact, it's one of the big reasons that they try to lock up the console to prevent unauthorized (i.e., unlicensed) games from being developed and sold by other parties.
The official pronunciation of the SI prefix "giga" (10^9) is "jiga". In other words, the first "g" is soft, and the second g is hard. That pronunciation reflects the greek origin of the prefix.
The pronunciation with two hard gs is considered an acceptable alternative, although in the US it now seems to be used almost exclusively.
Back to the Future actually had the pronunciation correct or nearly correct.
The people of the UK have already paid for it! Thus it isn't "unfair competition" either, unless the initial production of the music (not its later distribution) is unfair.
The complaint that this is unfair strikes me as being very nearly as absurd as the situation in the US where there are private companies complaining that only they should be allowed to have the data collected and generated by the taxpayer-funded National Weather Service, and that taxpayers should not be able to get the data directly from the government.
None of the protection measures described are DRM, old-fashioned or otherwise.
social engineering notes (crates stacked up in the warehouses of delivery companies across America are marked: Please Do Not Open Before Midnight)
That isn't social engineering.
Think how much cheaper and easier it would be if they just used an E-book with DRM.
Cheaper and easier for the publisher. Not easier for the reader. Personally I don't care how expensive and difficult it is for the seller. I'll buy a plain old book, and I'd consider buying a non-DRM ebook, but I will not by a DRM'd ebook, because it is of little value to me.
They expect to sell over ten million copies in the US. How many do you think they would be able to sell if they only offered an ebook? And how many if the ebook was DRM'd?
If the publisher wants to save money, they can simply distribute the book like any other book. No one is forcing them to have an embargo until an exact time; they have chosen to do that on their own initiative. So if it costs them lots of money to enforce it, that's their own problem.
Why would you want to encourage the publisher to use DRM? How do you think it benefits you as a reader? Or do you have some other hidden agenda?
it seems we keep getting closer and closer to the world described in Stallman's visionary The Right To Read article.
I'm baffled. If you don't want that world, why are you suggesting that the publisher should use DRM? To prevent it, you should not ask publishers to use DRM, and avoid buying DRM'd products. If DRM'd products sell poorly compared to non-DRM'd products, the publisher's decision as to whether to use DRM will be easy.
You could replace your car with a hybrid, and charge the battery overnight as many people are doing. That would take advantage of the existing pumped hydroelectric infrastructure to some extent.
Or are you intending to build your own pumped hydroelectric facility? That's requires a rather significant capital investment.
Slashdot Mirror
Parts of the ruling make reasonable sense, but there's a huge leap from breach of contract to patent infringement that seems completely unjustified.
Can we arbitrarily construe other Titles of U.S.C. also to only apply to commerce? That would be quite handy! "No really, your honor, I didn't violate the law when I killed that eagle, because Title 16 only applies to commercial use."
Well, if a bunch of lawyers say there is, but one anonymous coward says there isn't, obviously the lawyers must be wrong.
See Novell v. Network Trade Center 25 F. Supp. 2d 1218.
Nice try, but since the box-wrap license specifically says that you will return the cartridge to Lexmark, it won't work.
US Patents: First sale exhaustion clarified
It is unlikely that Lexmark will bring a patent infringement suit against an individual end user for refilling his or her printer cartridge, but that does not mean that they are unable to do so.
In this case, Lexmark has asserted, and the court has affirmed, that putting the box-wrap license on the package not only is a binding contract that the user must comply with, but also that violating the box-wrap license constitutes patent infringement, even though the license didn't actually have anything to do with the patents.
This decision guts the doctrine of first sale by allowing any ridiculous labelling the manufacturer puts on the package to be interpreted as a legally binding contract.
If Intel wanted to sell you a Pentium IV that was only for use in motherboards Intel manufactured, all they would have to do now is put a label on the box stating "For use in Intel brand motherboards only". Then they could sue you for violating the license by putting the chip in an Asus motherboard, and sue Via for making a chipset that induced you to violate the license, and sue Asus for making the motherboard that induced you to violate the license.
Wrong. The libertarians are vehemently opposed to the government granting monopolies. If the private enterprise can "piss all over us" without the government backing them up, so that the citizen can make an informed decision as to whether to be "pissed on" (e.g., whether to spend more money for a different brand of product that is less restricted), that would be a different matter.This ruling is a great victory for the people that want government protection for otherwise nonsensical business models, and (as usual) consumers get screwed royally.
Sure, but what if it is labelled "spring water"? Then if the manufacturer holds any patents on the product (which may or may not be related to the type of water in it), they can claim that your refilling the bottle with tap water infringes their patent because you violated the box-wrap license.
Apparently the Ninth Circuit thinks that the labelling "single use only" on the box is a legally binding contract, and thus the sale of the product to a consumer is not an "unrestricted sale".
If this is upheld, we can expect that soon all patent holders will be asserting all sorts of control over consumer products that they currently cannot. For instance, when you buy a new cell phone, it might have a label on the box stating that it is only for use with headsets from the same manufacturer. Up until now they've only been able to try to lock you in by putting a proprietary connector on the phone, and that only works until other manufacturers start producing headsets or adapters with that connector, but under the box-wrap precedent they may be able to use force of law to keep you from using an Ericsson headset with a Nokia phone.
Since it won't have a hard drive, I think Merrill Lynch has grossly overestimated the manufacturing cost. The Cell chip and BD-ROM transports won't cost Sony anywhere near $100 each; more likely it's around $30 for the Cell and $40 for the BD-ROM transport.
I'm somewhat surprised that they expect the unit to have a BD-ROM drive rather than a BD-RW drive, though the latter would probably add $10-15 to the manufacturing cost.
Of course, the manufacturing cost doesn't factor in the R&D cost. Merrill Lynch claims that Sony has spent over $1.8 billion for the development and production of the Cell chip. That seems rather high, but maybe the "production" part includes the cost of a new semiconductor fab, or part of the cost.
In fact, not only is it legal for them to do that, but they've made it illegal for us to do anything about it (DMCA anti-circumvention provisions). And unfortunately there have been court rulings in multiple countries that "mod chips" are illegal, even if they can be used for legal purposes. :-(
PFC makes the current waveform closely match the voltage waveform.
Non-PFC switching power supplies draw almost all of their current at the voltage peak, and almost none at lower voltages. Although this is a different effect than inductive loads, which have their current waveform phase-shifted from the voltage waveform, the net effect is the same in both cases: there is more energy wasted, and more generating and distribution capacity required than a purely resistive load would require.
Contrary to your claim, computers and other devices with switching power supplies definitely ARE one of the major causes for the European PFC requirements.
In any case, even with a hard drive, the BOM cost should easily be under $500. If they are trying to compete aggressively with Microsoft, they'll set the wholesale price near or even below the manufacturing cost, and plan to make their money on game sales and licensing.
That business model is nothing new to the game console industry; in fact, it's one of the big reasons that they try to lock up the console to prevent unauthorized (i.e., unlicensed) games from being developed and sold by other parties.
The official pronunciation of the SI prefix "giga" (10^9) is "jiga". In other words, the first "g" is soft, and the second g is hard. That pronunciation reflects the greek origin of the prefix.
The pronunciation with two hard gs is considered an acceptable alternative, although in the US it now seems to be used almost exclusively.
Back to the Future actually had the pronunciation correct or nearly correct.
The complaint that this is unfair strikes me as being very nearly as absurd as the situation in the US where there are private companies complaining that only they should be allowed to have the data collected and generated by the taxpayer-funded National Weather Service, and that taxpayers should not be able to get the data directly from the government.
If the publisher wants to save money, they can simply distribute the book like any other book. No one is forcing them to have an embargo until an exact time; they have chosen to do that on their own initiative. So if it costs them lots of money to enforce it, that's their own problem. Why would you want to encourage the publisher to use DRM? How do you think it benefits you as a reader? Or do you have some other hidden agenda?
I'm baffled. If you don't want that world, why are you suggesting that the publisher should use DRM? To prevent it, you should not ask publishers to use DRM, and avoid buying DRM'd products. If DRM'd products sell poorly compared to non-DRM'd products, the publisher's decision as to whether to use DRM will be easy.You could replace your car with a hybrid, and charge the battery overnight as many people are doing. That would take advantage of the existing pumped hydroelectric infrastructure to some extent. Or are you intending to build your own pumped hydroelectric facility? That's requires a rather significant capital investment.