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Patents Technology

Why Patent Law Shouldn't Block the Sale of Used Tech Products 215

Posted by Soulskill from the take-this-EULA-and-shove-it dept.
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.
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Why Patent Law Shouldn't Block the Sale of Used Tech Products More

Why Patent Law Shouldn't Block the Sale of Used Tech Products

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  • "Infringing"? (Score:5, Insightful)

    by JustAnotherOldGuy ( 4145623 ) on Tuesday September 08, 2015 @06:42PM (#50483117) Journal

    "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: (Score:2, Interesting)

      by tp_xyzzy ( 1575867 )

      > The only thing it "infringes" on is their profits.

      Raise hand if you have used a printer in last 24 months? It starts to be kinda outdated technology already. Everything is on the web, and noone is printing web pages...

      • Try interacting with a lawyer or a government. I can guarantee you, everything is going to involve paper.

        • Re: (Score:2, Informative)

          by PopeRatzo ( 965947 )

          Try interacting with a lawyer or a government. I can guarantee you, everything is going to involve paper.

          Lawyer, maybe. Government, no. I just renewed my drivers license online. I pay my taxes online (income and real estate). I reserve a campground at the State Park online.

          The last time I set foot in a government office, I didn't have to pick up a pen. There was a stylus to sign my name.

          Maybe Chicago is more sophisticated than Rowan County, Kentucky, but government here is quickly shifting away from pa

          • Lawyer, maybe. Government, no. I just renewed my drivers license online.

            That's lovely for you. As a foreign national, I'm currently in the process of trying to renew my US drivers license. It's so far taken 2 months, and reams of paper. It's taken so much bullshit and paper pushing in fact that my license expired during the process.

            I pay my taxes online (income and real estate).

            Certainly last time I filed my taxes in the US, there was a lot of paper involved, though I admit that was mostly through interaction with lawyers, not the government. The first time I filed them, I certainly was required to file with paper - eFi

            • Re: (Score:2)

              by dk20 ( 914954 )

              Funny, as another foreign national living in the US my US drivers license was not nearly as painful (i think it took a few days) but agree with you 100% on the stacks of paper.

              The DMV needed proof of legal status in the US... Did they check their database or have me bring in my passport, with all the US attachments which DHS stapled in?

              I also filed my taxes online, but my W2 came in paper form via snail-mail... I then retyped the info into the tax software manually and filed electronically.

              Paperless... not

          • Not just lawyers. I print on average every day. In the last few days:- printing an update of my camping packing list, printing a sales offer from the Web to give to a non-tech neighbour, printing a 10%-off voucher sent to me by a local restaurant to use there (they need it on paper for their accounts, I gather, and I am not going to take the risk of not having it on paper anyway).

            Most important, I bought a new set of tyres (sorry, tires) last week and took the precaution of printing the details off
      • When you start dealing with legal documents you often find yourself dealing with paper. I can't see it going away any time soon as they need that paper trail that isn't there with digital only documents.

      • Raise hand if you have used a printer in last 24 months? It starts to be kinda outdated technology already. Everything is on the web, and noone is printing web pages...

        You need to get out more. All sorts of things require a hard-copy paper document. If you've ever been in business you'd know this beyond any doubt.

        Computers were heralded as enabling the "paperless office", but if anything they increased paper consumption a hundred-fold. I'd bet that 80% of the people reading this have used a printer in the last year, probably in the last month or so.

        • I'd bet that 80% of the people reading this have used a printer in the last year, probably in the last month or so.

          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.

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

          Stuff is starting to change fast.

          • Re:"Infringing"? (Score:4, Interesting)

            by JustAnotherOldGuy ( 4145623 ) on Tuesday September 08, 2015 @08:47PM (#50483835) Journal

            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.

            • 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.

              Don't make the mistake of thinking everyone in the world is a white-collar worker.

              • Yesterday I was doing a job under my car, wiring up towbar electrics. I printed out the wiring diagram of the car rear lights area on paper to take it under the car with me.

                No, I don't want to drag my tablet under the car. It would end up broken. I do a lot of "blue collar" jobs like this as an amateur.

              • Don't make the mistake of thinking everyone in the world is a white-collar worker.

                Don't make the mistake of thinking that because you don't use a printer, no one does.

                Printer sales are up, paper consumption is up, and yet apparently no one is printing anything. How does that work?

                • Don't make the mistake of thinking that because you don't use a printer, no one does.

                  I didn't say no one uses a printer. I said about half of workers use printers, and many of those print maybe 3 or 4 documents per month.

          • Re: (Score:2)

            by AK Marc ( 707885 )
            Printing in offices is still common. Every employment agreement I've ever signed required a signed sheet of paper be filed with HR.

            I'd commonly print out onine documents in an office environment because, though people could look at them online, anything could be changed at any time, and unless I removed permissions on something and read a screen to the people in the meeting, I'd just print it out and have everyone confirmed to be operating from the same version.

            Version confusion was very high with the la

          • Re: (Score:2)

            by Ost99 ( 101831 )

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

            Stuff is starting to change fast.

            You used checks last year?
            I don't think I've seen a checkbook or anyone using one after 1985.

            • You used checks last year?

              Yeah. Believe it or not, I had to write a check to cover my fantasy football league fees. The other players are a bunch of neighborhood guys who aren't hip to online banking yet.

              I tried to pay in Bitcoins, but they threatened to kick my ass.

            • I don't think I've seen a checkbook or anyone using one after 1985.

              A year or two back, someone in my office had to get a checkbook. He had never had a checkbook before. The reason to get the checkbook was not to make payments but to provide a "void" check to the company that processes our payroll.

            • I've used at least one check this year, to pay a plumber. I use checks for a lot of things involving real estate. Money going to relatives is often in the form of a check for me, since a lot of my family is tech-averse. I grew up with my father paying bills using physical checks (and he still trusts them over online bill payment services) and with my mother paying for groceries by check, around the time that credit cards were still usually used with a mechanical imprinter.

              It sounds odd to me not to have se

          • Re: (Score:3)

            by dk20 ( 914954 )

            Any chance you have kids?

            It seems every week or so one of my kids comes home with some school forms looking for money... and they take cash or check.

            Since i pay for everything on cards and rarely carry cash, check it is and so i write a lot of them.

            • Any chance you have kids?

              My kid is in grad school. But I do remember all the school forms when she was in middle and high school. I wrote a lot of checks.

          • Re: (Score:2)

            by GNious ( 953874 )

            People use checks? Seriously?

            Can't really recall last time I even saw a check ... perhaps when I move from Aalborg and sold my apartment, where a lawyer sent me one ... so a decade ago.

            For printing, outside of work, I use it only to print recipes for taking to the kitchen, or printing stuff for kids to colour in. Wife'll use it for printing badges for kids (laminated badges required by school); beyond that, no idea really.

        • Re:"Infringing"? (Score:4, Interesting)

          by rtb61 ( 674572 ) on Tuesday September 08, 2015 @11:00PM (#50484361) Homepage

          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).

          • Like many others I found proof reading on the screen inefficient and unreliable

            Tee hee. Here's some free advice: you can double-space the text on the screen just like you can on paper.

      • Re: (Score:3)

        by dwywit ( 1109409 )

        Hand up. Tickets. Airline tickets, movie tickets, concert tickets. And don't give me that stuff about scanning the barcode off my phone. IT DOESN'T WORK!

        • Thats odd, all round Asia I used it perfectly well, and the last 3 weeks I have used it 5 times, in 3 different airports.

          Oddly the only place I ever had ANY isue with teh US, Chicago last year. Made me miss my flight while I went to find unhelpful airline staff, so maybe its a local issue?

        • Hand up. Tickets. Airline tickets, movie tickets, concert tickets. And don't give me that stuff about scanning the barcode off my phone. IT DOESN'T WORK!

          I've never seen it not work, perhaps you should get a modern phone with a transflective display like they've all had since what, over a decade ago? My problem is that I don't have cellphone internet, because I am a PAYG customer, and therefore it's not really convenient for me to load a ticket on my phone.

      • When I generate shipping labels daily for items I sell on Amazon, Etsy, eBay, and other sites, it would get rather expensive to attach a digital picture frame with a jpg of the label to each package.

        Fortunately, I have an old HP Laserjet 4100 with enough refilled cartridges to last me a lifetime.

  • People just do not get it... (Score:5, Insightful)

    by wbr1 ( 2538558 ) on Tuesday September 08, 2015 @06:44PM (#50483123)

    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.

    • Re: (Score:3)

      by sjames ( 1099 )

      It's amazing how willing the capitalist cheerleaders are to see a condition where corporations replace the communist state as owner of everything and the people own nothing even if they pay for it..

    • I've been called paranoid and a conspiracy theorist for years, but even I am surprised by how directly our society seems to be headed towards feudalism.

      • A capitalist democracy works if control isn't (strongly) bound to money. The more control certain companies have over your life, the less its a democracy, the more its feudalism, as companies are owned by few people, which isn't a bad thing by itself, this is how capitalism works.

        Technology enables everybody who controls it to do more things. You can 3D print guns, you can build spyware into your lightbulbs. At the end of the day, our society has to answer the question: who should control all this new techn

        • "our society has to answer the question: who should control all this new technology?"

          Our society answered that question long ago, about the 17 or 18th century: "We, the people".

          It is not "our society has to answer the question of who should control all [anything]" but "Are we, the individuals, up to the struggles it takes to own and retain society?"

          Capitalism is going the way it's going, which is basically going back to feudalism, because, on one hand, there *is* a class conflict, that part Marx nailed it,

  • 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.

    • In a world without patents or copyright, there would be only curiosity left to drive innovation. But curiosity isn't the force behind capitalism, behind the economy, greed is. Try to build a society out of curiosity, you'll fail. It might be possible with future technological advancements, when we don't need humans to work anymore because all work is done by machines, but not now.

      • Not true. Pleasing customers drives innovation. Customers are very fickle and will leave your company if someone improves upon what you have. There are many industries that don't have patent protections and thrive with innovation.

        • Customers are very fickle and will leave your company if someone improves upon what you have.

          They won't leave you if the person who has done the improvement doesn't want to build a big company like yours, just to try whether they can make money with your invention. They enable people running a business much smaller than yours to challenge you [lawdit.co.uk]. Otherwise, you are just crunched.

          There are many industries that don't have patent protections and thrive with innovation.

          Can you give me examples?

      • Re: (Score:2)

        by 0123456 ( 636235 )

        In a world without patents or copyright, there would be only curiosity left to drive innovation. But curiosity isn't the force behind capitalism, behind the economy, greed is. Try to build a society out of curiosity, you'll fail. It might be possible with future technological advancements, when we don't need humans to work anymore because all work is done by machines, but not now.

        My God, you're so right! How did our ancestors ever manage to make things for thousands of years with no patents to protect them from new, more innovative competitors?

        • For thousands of years, technological advancement was super slow (yea I know, it sounds like pirates vs temp [wikipedia.org], but this is real).

          For thousands of years, we had almost no economy, everybody produced almost everything they needed themselves. Look at indigenous people around the world, they can mostly live without trading regularly, they only trade once per year for things like booze, or guns.

          For thousands of years, we had no machines to do our job, we had tools. Our economy is focused at how to improve those m

          • Re: (Score:2)

            by 0123456 ( 636235 )

            Damn! You're right! How could I have been so stupid? If only the ancient Egyptians had patents, we'd have had computers five thousand years ago!

      • "In a world without patents or copyright, there would be only curiosity left to drive innovation."

        That's obvious bullshit.

        The real thing you wanted to say is "in a world without financial incentives only other non-financial incentives would drive innovation".

    • Patent law does not prevent you from arranging anything in any configuration you want. It only prevents you from selling the result.

      • Patent law does not prevent you from arranging anything in any configuration you want. It only prevents you from selling the result.

        Very first paragraph of 35 USC 271 [cornell.edu]:

        (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.

        Patent law (in the U.S. anyway) covers more than what y

    • It doesn't stop you making anything. It stops you making money from making something or distributing it.

      Nothing could stop me from manufacturing my own Lexmark cartridges and using them for my own personal use. Patent laws would stop me selling them or giving them away to other people.

  • They may be legally in the right (Score:3, Insightful)

    by davidwr ( 791652 ) on Tuesday September 08, 2015 @07:11PM (#50483279) Homepage Journal

    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.

    • Morally, of course, it's enough to want me to boycott the company, but legally, they may be in the right

      Hmmm . . . If I recall correctly, Lexmark used to be the printer division of IBM, before IBM sold it off. Maybe Lexmark got a few IBM patent lawyers with the deal? In that case, you may be right that legally, that the law is on Lexmark's side.

      At any rate, a big company that can afford a lot of lawyers . . . and a relatively poor re-filler company probably can't. So the re-filler can not afford to litigate this, because of the cause. In the "Justice" system, the one with the most money wins.

    • The thing is, there's a strong public policy argument to be made against Lexmark in this case. The government (typically) wants people to recycle because it means less money spent hauling the stuff to a recycling center or landfill and less pollution to deal with later. There are actually several levels of federal recognition for facilities that recycle printer cartridges - the one most of those companies go for is one that guarantees they throw nothing away. Since refilling the cartridges and selling them

      • Wouldn't Lexmark then argue that they should be the only ones refilling and reselling? I mean, we found this patent from 4 years ago that covers all the stuff you can do to refill it economically, so we're the only ones that can do the job!

    • Legality doesn't make "right". Ever.

  • ... I can actually pretty easily see how a cartridge refiller could infringe on a manufacturer's patent, because the manufacturer may have also patented the method that must be used to refill their cartridges.

    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 bu

    • Re: (Score:2)

      by gringer ( 252588 )

      Yes. People have this idea in their mind that all intellectual property is the same, which causes confusion when litigation happens correctly. In this particular case, the debate will be whether or not Lexmark's patents are infringed by the process that the second-hand suppliers use, rather than the sale of the end product.

      Richard Stallman has a good talk about the differences between the three main types of intellectual property, and says that anyone who tries to lump them together to be dealt with as a wh

    • although an unscrupulous manufacturer...

      This is an article about Lexmark... Lexmark and Keurig seem to be competing against each other to see who can be the most unscrupulous.

      This isn't the first time they tried to pull this sort of trick. in the past it was copyright law via the DMCA here is a slashdot article [slashdot.org] from 2003

  • 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 ru

    • > There is absolutely no act of "inject ink into container" which could possibly have anything to do with a patent.

      Huh? Unless you do all your shopping in Amish country, just about every container of anything you buy, ink included, was filled by some patented machine.

      • Unless you do all your shopping in Amish country, just about every container of anything you buy, ink included, was filled by some patented machine.

        Yes, sure ... but even in Amish country Jedediah will sell you a funnel. And just because that container was filled via a patented, and the connector is probably patented ... that doesn't make it the only way to put something into it.

        Putting liquid into a fucking container is NOT a patentable process ... hell, I can mostly fill a barrel with a drill, a hose, a

        • "A system and methodology by which a liquid is placed into a container" is a one-line summary of what the patent is about, like the headline on a news article. It doesn’t mean the patent covers the entire idea of placing liquid into containers. I have no idea how broadly this patent is actually written, but I’m pretty sure it goes into more detail than that. It's a method of doing something, not every method of doing it.

          Fuck Lexmark though, just on principle.

  • This very case came up here about two weeks ago! (Score:3)

    by Applehu Akbar ( 2968043 ) on Tuesday September 08, 2015 @08:18PM (#50483679)

    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.

  • 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?

  • 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.

    Univer

  • 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

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