If At First You Don’t Succeed, Don’t Try Again With Patent Law
Printers aren’t all that expensive. Ink for the printers, on the other hand, can cost more than fine Champagne and tends to be far less delicious. Lexmark, in yet another attempt in a long line of schemes, is trying to use patent law to make sure it stays that way.
In a case called Lexmark v. Impression Products, Lexmark is trying to use patent law to prevent customers from lawfully getting cheaper ink. Lexmark argues that by slapping a “notice” on the side of a patented ink cartridge, they can limit consumers to using the cartridges only once under the threat of patent infringement.
EFF, together with Public Knowledge, the Open Source Hardware Association, the Digital Right to Repair Coalition, and Public Citizen filed an amicus brief at the Federal Circuit arguing that Lexmark should not be allowed to distort patent law in order to prevent people from lawfully reusing what they already own. Once Lexmark sells its cartridge, it should not be able to use patent law to further control the market.
The issue is one of “patent exhaustion.” This is the patent law version of “first sale,” the doctrine in copyright law that says that once a consumer buys a copy of a work, she owns it, and can do what she wants with that copy. Patent law is similar. Once a patent owner sells a product, it cannot later claim its use is infringing.
In our brief, we argue that patent law doesn’t allow Lexmark to control its products through a “single use” notice after making an authorized sale. We argue this is true whether the product was originally sold abroad or whether it was originally sold in the United States. Unfortunately, case law from the Federal Circuit holds the exact opposite. But we believe, as do many others, that more recent Supreme Court decisions have overruled the previous, anti-consumer Federal Circuit decisions.
This is not the first time Lexmark has tried to use intellectual property laws to unfairly harm consumers. In a case called Lexmark v. Static Control, the Sixth Circuit rejected Lexmark’s attempts to use copyright and the DMCA to control the reuse of its printer cartridges. As we argue in our brief, the Federal Circuit shouldn't allow Lexmark to do with patent law what has already been rejected in copyright law.
The Constitution grants Congress the power to enact copyright and patent laws in order to “promote the progress” of science and art. We hope the Federal Circuit confirms that patents are not granted to allow patent owners to control what a consumer decides to do with their lawfully purchased ink cartridge.