Printer ink wars may make private property the exclusive domain of corporations

Serfs paying their feudal lords

Printer manufacturer Lexmark hates America, and everything good and right in the world, because we keep stubbornly insisting that if we buy a printer cartridge, we can refill it, because it's ours.

A decade ago, the company argued that refilling cartridges violated copyright law, but the Federal Circuit told them to buzz off.

Undeterred, they went back this decade and argued that refilling printer cartridges violates their patent: not because they have a patent on refilling printer cartridges, but because the "patent license" under which the cartridges are sold prohibits this. What's more, since patent law is strict liability and doesn't require intent for you to be found liable, Lexmark can put a patent notice on the box that it sends to a store, and you, as the store's customer, are bound by that license, even if you never see it.

Virtually all modern objects embody one or more patents (thanks, in part, to the nonsensically low standards that the patent office has for granting these monopolies). If Lexmark's theory is right, then simply putting a notice on the packaging for any object at some point in its commercial life allows corporations to dictate how we use it, to their favor and our detriment.

Worse still: a judge bought this theory and ruled in Lexmark's favor.

The Electronic Frontier Foundation has sent an amicus brief to the Supreme Court asking them to hear an appeal to the case.

In its decision, the Federal Circuit made two important rulings. First, it said that as long as a sale is “restricted” (this could be as simple as a notice placed on disposable packaging), patent rights can be reserved by the patent owner and sale does not result in exhaustion. Second, the court ruled that an authorized sale overseas by the US patent owner does not exhaust US patent rights.

These twin rulings give patent owners a roadmap for undermining consumer ownership. As a consumer, you might not even know about what notices were placed on goods earlier in their ownership history. And because patent infringement generally does not require “intent,” you could find yourself liable for the use of goods that you purchased legally and that the patent owner has already been paid for.

Our brief explains that the Federal Circuit’s decision undermines centuries of law upholding the right of individuals to use and resell their possessions. Allowing patent owners to control goods even after sale harms liberty and autonomy. Patent owners like Lexmark (which tries to impose one-use-only limits on its ink cartridges) could try to restrict otherwise legal modifications, add-ons, resale, reverse-engineering, and security research. We hope the Supreme Court takes this case and restores our right to pwn the things we own.

EFF Asks Supreme Court to Overturn Dangerous Ruling Allowing Patent Owners to Undermine Ownership
[Daniel Nazer/EFF]

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