Strike Three: Lexmark Can't Use Patents, Trademarks Or Copyright To Block Third Party Ink Cartridges

from the good-to-see dept

Printer companies have long used the fairly straightforward business model of "sell cheap printers, and make all the money by price gouging the ink." As we've noted, one study found that a swimming pool filled with printer ink would cost you almost $6 billion at retail (and that was almost 15 years ago, so the number is likely much higher today). For this business model to function at truly monopolistic pricing levels, it requires that the printer manufacturers figure out ways to block third parties from selling cheaper ink for their printers. Lexmark has been among the most aggressive in doing so, and has gone for the intellectual property trifecta: abusing copyright, trademark, and patent laws to try to block third party ink sales. Back in 2004, it lost its attempt to abuse copyright law to block sales. In 2014, the Supreme Court told Lexmark to stop abusing trademark law to scare off customers of third party ink sellers. And, today, the Supreme Court has completed the triad and told Lexmark that it cannot abuse patent law to stop third party ink cartridges as well. In the process, the Supreme Court, once again, smacked down the Court of Appeals for the Federal Circuit (CAFC), the appeals court that is supposed to be the "experts" in patent law, but keep getting the basics wrong.

The specific issue here was one of patent "exhaustion." That is, when a manufacturer (legally) sells a patent product, has it "exhausted" its rights to its patents regarding that particular product, or can it continue to hang onto those rights and block legal purchasers from doing things with it. This is important, if you believe in the right to actually own what you buy. Lexmark tried to argue that even after it sold its printers, it could block third party ink (or, in this specific case, laser toner) cartridges, by claiming that using such cartridges violated its patents. If you follow this stuff, you may remember two previous big Supreme Court cases, dealing with the concept of "exhaustion." There was the Kirtsaeng case regarding copyright exhaustion (once you've sold a copyrighted work, you can't stop the buyer from reselling it) and Quanta v. LG that said the same basic thing for patents.

But CAFC twisted itself in knots to argue that this case was different, saying that Quanta was only about blocking sales, and this case -- titled Lexmark v. Impression Products at CAFC and now Impression Products v. Lexmark at SCOTUS -- was different because it involved a "limited license" rather than a direct sale. That is, Lexmark basically sold its products with a license agreement, saying "hey, don't use third party cartridges, and if you do, we effectively are pulling our patent license and will sue you for infringement."

The Supreme Court is not impressed with the CAFC's pretzel logic and notes that it's pretty damn obvious that once you've sold a patented product, you've exhausted the right to pull back the license on that product and claim infringement:

We conclude that Lexmark exhausted its patent rights in these cartridges the moment it sold them. The single-use/no-resale restrictions in Lexmark’s contracts with customers may have been clear and enforceable under contract law, but they do not entitle Lexmark to retain patent rights in an item that it has elected to sell.

The Patent Act grants patentees the “right to exclude others from making, using, offering for sale, or selling [their] invention[s].” ... For over 160 years, the doctrine of patent exhaustion has imposed a limit on that right to exclude.... The limit functions automatically: When a patentee chooses to sell an item, that product “is no longer within the limits of the monopoly” and instead becomes the “private, individual property” of the purchaser, with the rights and benefits that come along with ownership.... A patentee is free to set the price and negotiate contracts with purchasers, but may not, “by virtue of his patent, control the use or disposition” of the product after ownership passes to the purchaser.... The sale “terminates all patent rights to that item.” ...

This well-established exhaustion rule marks the point where patent rights yield to the common law principle against restraints on alienation. The Patent Act “promote[s] the progress of science and the useful arts by granting to [inventors] a limited monopoly” that allows them to “secure the financial rewards” for their inventions.... But once a patentee sells an item, it has “enjoyed all the rights secured” by that limited monopoly.... Because “the purpose of the patent law is fulfilled . . . when the patentee has received his reward for the use of his invention,” that law furnishes “no basis for restraining the use and enjoyment of the thing sold.”

Simple, right? And, once again, the (unanimous) SCOTUS ruling is not kind to the lower judges at CAFC:

This venerable principle is not, as the Federal Circuit dismissively viewed it, merely “one common-law jurisdiction’s general judicial policy at one time toward anti-alienation restrictions.” ... Congress enacted and has repeatedly revised the Patent Act against the backdrop of the hostility toward restraints on alienation. That enmity is reflected in the exhaustion doctrine.The patent laws do not include the right to “restrain[ ] . . .further alienation” after an initial sale; such conditions have been “hateful to the law from Lord Coke’s day to ours” and are “obnoxious to the public interest.”... “The inconvenience and annoyance to the public that an opposite conclusion would occasion are too obvious to require illustration.”

And then, to help the CAFC out, after quoting another case saying that this result is "too obvious to require illustration"... immediately provides an illustration. In other words, "hey CAFC, how can you be this stupid? You even need us to draw you a picture."

But an illustration never hurts. Take a shop that restores and sells used cars. The business works because the shop can rest assured that, so long as those bringing in the cars own them, the shop is free to repair and resell those vehicles. That smooth flow of commerce would sputter if companies that make the thousands of parts that go into a vehicle could keep their patent rights after the first sale. Those companies might, for instance, restrict resale rights and sue the shop owner for patent infringement. And even if they refrained from imposing such restrictions, the very threat of patent liability would force the shop to invest in efforts to protect itself from hidden lawsuits. Either way, extending the patent rights beyond the first sale would clog the channels of commerce, with little benefit from the extra control that the patentees retain. And advances in technology, along with increasingly complex supply chains, magnify the problem.

As an aside, this "illustration" being used to mock CAFC is likely to come in handy elsewhere. We've been writing a bunch lately about companies trying to kill off "right to repair" laws, and here's the Supreme Court, in a unanimous decision written by the Chief Justice, using the right to repair as a fundamental and obvious point. "That smooth flow of commerce would sputter..." Indeed.

The opinion continues to smack down CAFC later, noting that it "got off on the wrong foot."

The Federal Circuit reached a different result largely because it got off on the wrong foot. The “exhaustion doctrine,” the court believed, “must be understood as an interpretation of ” the infringement statute, which prohibits anyone from using or selling a patented article “without authority” from the patentee.... Exhaustion reflects a default rule that a patentee’s decision to sell an item “presumptively grant[s] ‘authority’ to the purchaser to use it and resell it.” ... But, the Federal Circuit explained, the patentee does not have to hand over the full “bundle of rights” every time.... If the patentee expressly withholds a stick from the bundle—perhaps by restricting the purchaser’s resale rights—the buyer never acquires that withheld authority, and the patentee may continue to enforce its right to exclude that practice under the patent laws.

The misstep in this logic is that the exhaustion doctrine is not a presumption about the authority that comes along with a sale; it is instead a limit on “the scope of the patentee’s rights.”... The right to use, sell, or import an item exists independently of the Patent Act. What a patent adds—and grants exclusively to the patentee—is a limited right to prevent others from engaging in those practices.... Exhaustion extinguishes that exclusionary power.... As a result, the sale transfers the right to use, sell, or import because those are the rights that come along with ownership, and the buyer is free and clear of an infringement lawsuit because there is no exclusionary right left to enforce.

There was a separate, but related question in the case as well, concerning "international" exhaustion. The above parts were about what happened to cartridges Lexmark sold within the US. But Lexmark had argued separately that products sold outside the US shouldn't be subject to patent exhaustion, so if those cartridges were then sold back into the US, they should be subject to infringement cases, since the exhaustion had not occurred under US patent law (the same issue that came up under copyright in the Kirtsaeng case). And, here, SCOTUS (at 7 to 1, with Justice Ginsburg dissenting) found that the same applies to patent law, pointing to the ruling in Kirtsaeng, ans saying that the analysis is effectively the same here:

Applying patent exhaustion to foreign sales is just as straightforward. Patent exhaustion, too, has its roots in the antipathy toward restraints on alienation... and nothing in the text or history of the Patent Act shows that Congress intended to confine that borderless common law principle to domestic sales. In fact, Congress has not altered patent exhaustion at all; it remains an unwritten limit on the scope of the patentee’s monopoly.... And differentiating the patent exhaustion and copyright first sale doctrines would make little theoretical or practical sense: The two share a “strong similarity . . . and identity of purpose,” ... and many everyday products—“automobiles, microwaves, calculators, mobile phones, tablets, and personal computers”—are subject to both patent and copyright protections.... There is a “historic kinship between patent law and copyright law,” ... and the bond between the two leaves no room for a rift on the question of international exhaustion.

The opinion also makes fun of the White House for weighing in on this case with little relevant to add, and with a confusion about the fact that patent law is based on the public interest, rather than as what's in the best interest for the two parties in the transaction:

The Government has little more than “long ago” on its side. In the 1890s, two circuit courts—in cases involving the same company—did hold that patentees may use express restrictions to reserve their patent rights in connection with foreign sales.... But no “coalesc[ing]” ever took place: Over the following hundred-plus years, only a smattering of lower court decisions mentioned this express-reservation rule for foreign sales.... And in 2001, the Federal Circuit adopted its blanket rule that foreign sales do not trigger exhaustion, even if the patentee fails to expressly reserve its rights.... These sparse and inconsistent decisions provide no basis for any expectation, let alone a settled one, that patentees can reserve patent rights when they sell abroad.

The theory behind the Government’s express-reservation rule also wrongly focuses on the likely expectations of the patentee and purchaser during a sale. Exhaustion does not arise because of the parties’ expectations about how sales transfer patent rights. More is at stake when it comes to patents than simply the dealings between the parties, which can be addressed through contract law. Instead, exhaustion occurs because, in a sale, the patentee elects to give up title to an item in exchange for payment. Allowing patent rights to stick remora-like to that item as it flows through the market would violate the principle against restraints on alienation. Exhaustion does not depend on whether the patentee receives a premium for selling in the United States, or the type of rights that buyers expect to receive. As a result, restrictions and location are irrelevant; what matters is the patentee’s decision to make a sale.

As for Ginsburg's dissent over international exhaustion, she also dissented from Kirtsaeng, and more or less repeats that argument here.

In the end, this is a big win for consumer rights, and blocks companies from trying to abuse patent law from restricting how people can actually use products they bought.


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  • icon
    Ninja (profile), 30 May 2017 @ 11:56am

    Until some company lobbying gives us a law that prevents meddling with stuff you own for your own safety.

    reply to this | link to this | view in chronology ]

  • identicon
    Baron von Robber, 30 May 2017 @ 12:03pm

    Interesting that Ginsburg dissented and Gorsuch (with the rest) favoring the consumer, in this case.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 30 May 2017 @ 12:14pm

    It would be impressive if the printer makers just got together and made standard ink carts.
    Stop selling printers at a loss, give up the dreams of money raining in on ink, and actually push the tech forward.

    They can gain public support by pointing out that a unified cartridge market is better for the planet. They can be recycled easier, no trying to remember special code numbers in a sea of code numbers. I need a black cart, I need a magenta cart, etc.

    The reason carts get refilled, remanufactured, & knocked off is there is a HUGE gap in what it actually costs to produce them vs retail prices.

    Offer us better printers at a reasonable price (seriously, I know MULTIPLE people who just bought a new printer everytime the ink ran out because it was cheaper) & a unified ink platform. You'll kill off a majority of the 3rd parties in the market, because its a good price everywhere and not $50 for something that might print 20 pages before crapping out.

    reply to this | link to this | view in chronology ]

    • icon
      sehlat (profile), 30 May 2017 @ 12:25pm

      Re:

      You're quite correct, but the term "blind greed" should tell you why they won't.

      reply to this | link to this | view in chronology ]

    • icon
      zboot (profile), 30 May 2017 @ 12:42pm

      Re:

      I don't see this increasing public "support" in the way the manufacturers want, which is more money. Your suggestions dilute the market. Sure, there may be competition on printers, but the big manufacturers aren't losing sleep to crap third party printers. So, increased competition there doesn't change anything for them. Not that I expect there will be much innovation in consumer printers anyway - they're going the way of digital cameras.

      Having printer carts that work everywhere just increases the good competition they already have from refills - they'd lose money since it'll be pretty hard to innovate on ink to the point where I'd prefer $$$ Lexmark black to $ ebay black.

      reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 30 May 2017 @ 1:09pm

      Re:

      > I know MULTIPLE people who just bought a new printer everytime the ink ran out because it was cheaper

      That's why printers are now sold with cartridges that are only partially filled.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 May 2017 @ 1:11pm

      Re:

      They can gain public support by pointing out that a unified cartridge market is better for the planet.

      Except for cartridges, it's basically the premise of the "EcoTank" printers: https://www.wired.com/2015/08/epson-printer-no-cartridge/

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 May 2017 @ 3:01pm

      Re:

      While that is a good dream, it will never happen. Otherwise we'd also start seeing standardized power connections - another patent thicket. Ever see what a high amperage connection costs for something like "data center in a container"? - it's over $1,200. Each. You need four total, if not more (cooling is usually not on the critical power rails).

      Don't even get me started on cell phone connectors.

      reply to this | link to this | view in chronology ]

    • icon
      Coyne Tibbets (profile), 30 May 2017 @ 9:10pm

      Re:

      It's a great idea, everyone agrees...except the companies, they don't agree at all!

      Whether it's ink cartridges, pharmaceuticals, or coffee maker manufacturers, the holy grail of marketing is the consumer who buys another of something "every day."

      That's why I call this "the Extortion Generation": the company offers you a shiny new toy. Then when you plug it in, they add, "You want your shiny new toy to work, right? Then you better get your credit card out and buy, buy, buy..."

      (For meds it's, "You want to stay healthy, right?" Latest marketing improvement: "If you stop taking our drug you might die...")

      Haven't you noticed that these "daily" purchase items are always 98.5% profit? An ink cartridge is a $0.10 cent injection molding, $0.05 chip, and a few other odds and ends probably totaling less than $0.25. Including the ink. Boy isn't that 7,200% markup just heavenly...for the company?

      Even the right-to-repair nonsense is the same thing: "Remember that new tractor you bought? If you'd rather it did something besides sit and rust, better bring it by OUR shop for an oil change."

      Don't get me started about intellectual property extortionists ("troll" is totally the wrong word).

      Extortion is the most profitable business model that exists. Trust me when I say companies are not giving extortion up without a fight.

      reply to this | link to this | view in chronology ]

      • icon
        That Anonymous Coward (profile), 31 May 2017 @ 3:06am

        Re: Re:

        We should send their shareholders a brief history of the **AA's, where they fought tooth and nail against every advance & still made money on the deal. Perhaps they would be wise enough to notice that making more money without paying for a group to tell you the sky is falling unless you pay them more each year is a really good plan.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 May 2017 @ 12:20pm

    Other products

    Would it be correct to assume that this ruling would apply to other products such as razor blades, coffee brewing cups, and the like? If so, this is a much bigger win than just printer ink?

    reply to this | link to this | view in chronology ]

  • identicon
    John, 30 May 2017 @ 12:23pm

    I can fix my tractor now!

    This seems to also shoot in the head the idea that John Deere has that they can restrict who can fix their tractors as well.

    reply to this | link to this | view in chronology ]

    • identicon
      Thad, 30 May 2017 @ 12:42pm

      Re: I can fix my tractor now!

      No, because this was a patent ruling, and the DMCA applies to copyright (that's what the "C" is for).

      That said, as the article notes, Roberts's direct reference to mechanics' right to repair cars does suggest that the court may not find the copyright argument persuasive either, should such a case reach it.

      reply to this | link to this | view in chronology ]

  • identicon
    Angus, 30 May 2017 @ 12:25pm

    Perscription Drugs

    Anyone notice that this could be used to import drugs from Canada if some other three letter agencies would just get out of the way?

    reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 30 May 2017 @ 12:34pm

    How is it that CAFC keeps getting these things wrong when they're patently obvious?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 May 2017 @ 12:40pm

      Re:

      It has been filled with corrupt judges is my guess.

      reply to this | link to this | view in chronology ]

    • identicon
      Jason, 30 May 2017 @ 1:12pm

      Re:

      I see what you did there.

      I do have a serious question, though, and it may be just that some of the finer details are blurred in the reporting.

      Lexmark tried to argue that even after it sold its printers, it could block third party ink cartridges, by claiming that using such cartridges violated its patents.

      If Lexmark has valid patents on some part of their (say) ink cartridges, shouldn't that allow them to prohibit third-party imitations? I can see where it wouldn't let them stop someone from selling refill kits or "compatible" cartridges, and maybe that's where the distinction lies that I'm not seeing, but if we're talking about someone making use of patented technology then shouldn't that be something they could legitimately call infringement?

      Don't get me wrong, I'm not against third-party inks at all. But I'm evidently not seeing the critical detail of why this case went the way it did, instead of being a basic case of patent infringement.

      As a simplified example, if ABC Corp. markets their patented WonderBox and XYZ Inc. comes along selling the same thing, I can see where that would likely be infringement. But if XYZ was selling a very similar-looking Box o' Wonder by getting around the patents then that would be okay. Maybe that's what is going on here, and it just wasn't clear.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 30 May 2017 @ 1:47pm

        Re: Re:

        Patents only give you the exclusive right to determine who can make and sell your patented thing. They don't give you the right to tell people what they can do with your patented thing that you sold to them. Once they've bought your thing, they can do whatever they want with it including refill and resell it.

        This isn't XYZ Inc making the same thing, this is XYZ Inc buying up used Box o' Wonder's from people who bought new ones from ABC Corp. And then they spruce them up and resell the physical object, not making a new one.

        reply to this | link to this | view in chronology ]

      • icon
        Steerpike (profile), 30 May 2017 @ 2:37pm

        Re: Re:

        Hi Jason:

        A patent would prevent third parties from producing the patented product (e.g. infringing ink cartridges). What was happening here is that a third party was refurbishing and reselling the same physical cartridges that Lexmark had already sold once. That is why the exhaustion doctrine applies. Exhaustion wouldn't apply to an infringing third party product, so if this third party started making its own cartridges instead of just reselling old Lexmark cartridges, they'd have a problem.

        reply to this | link to this | view in chronology ]

        • identicon
          Jason, 31 May 2017 @ 6:15am

          Re: Re: Re:

          Ah, now I see. I hadn't picked up on the fact that the parts in question were refurbished. (To be fair, "third-party ink cartridges" as they were referred to in the article does heavily imply they were manufactured by the third party.)

          That makes perfect sense, then; you're right, Lexmark shouldn't be able to prevent someone from doing whatever they want with the stuff they've already bought and paid for.

          Thanks (and to the AC above) for the clarification.

          reply to this | link to this | view in chronology ]

    • identicon
      Digitari, 30 May 2017 @ 2:30pm

      Re:

      Seriously?

      Have you met "people"?

      reply to this | link to this | view in chronology ]

    • identicon
      Zonker, 2 Jun 2017 @ 2:50pm

      Re:

      Because the obvious is patented, thus getting things right would be an infringement.

      reply to this | link to this | view in chronology ]

  • icon
    Roger Strong (profile), 30 May 2017 @ 1:04pm

    The Supreme Court is not impressed with the CAFC's pretzel logic and notes that it's pretty damn obvious that once you've sold a patented product, you've exhausted the right to pull back the license on that product and claim infringement:

    Have shrink-wrap licenses ever held up in court?

    If I purchase software or printer ink, take it home, tear open the packaging AND THEN find a license agreement, it's not just that the deal was already concluded before new license stipulations were presented. It's that there's no option to say 'no.' With the packaging opened, it can no longer be returned.

    If Lexmark can add stipulations at this point, then the user should be allowed to do the same. "By allowing the cartridge to function, once installed, Lexmark agrees to provide the user with unlimited free ink refills or other materials of equal value by weight. Also bacon."

    reply to this | link to this | view in chronology ]

  • icon
    TechDescartes (profile), 30 May 2017 @ 1:34pm

    I'm exhausted

    Here's hoping Lexmark is, too.

    reply to this | link to this | view in chronology ]

    • identicon
      Thad, 30 May 2017 @ 3:14pm

      Re: I'm exhausted

      I get that you're making a "patent exhaustion" pun, but I'm sure we haven't seen the last of Lexmark. I bet they're already looking at other ways of abusing copyright and patent law to try and shut out cartridge refills.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 May 2017 @ 1:43pm

    What does this do for the attempts by John Deere, Apple, and others, to keep customers from repairing items they purchased from these companies?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 May 2017 @ 1:49pm

      Re:

      Not much directly. This was about Patents. The right to repair stuff is about the DMCA and Copyright law. Lawyers might be able to pull some of the high level reasoning from here, but there's no settled case law to pull from this.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 May 2017 @ 2:52pm

    It would be nice if all these printer manufacturers would drop this idiocy now and just make good solid printers that work, last, have universal cartridges and not worry about ink rather than make cheap crap that breaks easily with super expensive ink that's almost cheaper to buy a brand new printer when the ink runs out since they come with cartridges.

    I think I have a better chance of winning the lottery than that happening.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 May 2017 @ 9:50pm

    Patent fail, trademark fail, copyright fail... boy, My_Name_Here's really not going to like this.

    reply to this | link to this | view in chronology ]

  • icon
    Hugo S Cunningham (profile), 31 May 2017 @ 2:17am

    Build a better consumer-trap, and the stock options will beat a path to your door...

    Next project for printer oligopolists: a cartridge that works well enough with its first load of ink to avoid class-action lawsuits, but then disintegrates so thoroughly that refurbishment and refilling is impossible.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 May 2017 @ 8:34am

      Re: Build a better consumer-trap, and the stock options will beat a path to your door...

      Oh, please, be quiet. You've just let them off the hoo....

      reply to this | link to this | view in chronology ]

    • identicon
      Guest, 31 May 2017 @ 2:53pm

      Re: Build a better consumer-trap, and the stock options will beat a path to your door...

      This was the intent when they first started putting the microchip in the cartridges.

      reply to this | link to this | view in chronology ]

  • identicon
    John Cressman, 31 May 2017 @ 4:40am

    About Time!

    It's about time we get a decent ruling! Now... if only we could get the same ruling when it comes to gadgets with OSs.

    Let's face it... that's the big loophole. Stick a microprocessor in something, load an OS and suddenly you control it ABSOLUTELY because of "licensing" agreements.

    What's next... a microprocessor and OS on my underwear? Smart Undies?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 May 2017 @ 5:51am

    Frome here it just looks like Lexmark couldn't afford to bribe the SCOTUS like it did with the CAFC. :)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 May 2017 @ 7:18am

    I love by Brother Laser printer. Easy to refill with 3rd party toner. Mechanical cartridge reset. No Chip!!! Cheap to refill. Good for the environment as I don't have to throw it away or mail it off to do whatever with. Being Laser, it can sit around and not be used for weeks and then spit out a perfect page. No nozzle cleaning. Crap prints because you aren't using it at least weekly.

    I found I really don't even need color. If I need to print some color pictures, there's local places I can go to with a memory card and get prints, or do it online at Costco and then I can just pick them up locally. It's pretty rare though.

    If I was going to get a Inkjet again, It would be one of them Epson tank type ones that don't use a cartridge. You fill it up by a bottle of ink. Now that's the way to do things. Hell should make it simple to go 3rd party cheaper also, though I would assume they wouldn't mark up a bottle of ink to much.

    reply to this | link to this | view in chronology ]

    • identicon
      Thad, 31 May 2017 @ 2:02pm

      Re:

      I've heard a lot of good things about Brother.

      I bought a cheap HP B&W laser a few years ago and haven't had any issues with it, and I don't print much. But if it ever goes south I'll definitely look at getting a Brother.

      reply to this | link to this | view in chronology ]


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