The Latest IP Crime: "Box-Wrap" Patent Infringement
http://www.corante.com/copyfight/archives/039510print.html
What's that, you ask? Evidently, it's when you ignore the terms written on
the side of Lexmark printer cartridge box, refilling the cartridge with ink
even when the company has designated it "single use only." According to the
Ninth Circuit ruling [PDF] this week in ACRA v. Lexmark, opening the package
means you agree to Lexmark's wishes. And if you break that agreement, you
could face claims under contract and patent law.
As Fred von Lohmann explains it, it's sort of like when you buy those fancy
Gillette Sensor razors, then purchase cheap replacement razor heads --
except that a court has ruled that if the package says "single use," then by
opening it you've agreed you can't have any cheap replacements (but you can
buy another Gillette "single use" razor). And that means the company that
makes the replacement heads is out of luck, too.
Writes Fred:
[The strategy here is] a variant on the "shrinkwrap license" that used
to appear plastered on software. Lexmark is bringing this practice to the
world of patented goods. If you step outside the bounds of the "contract"
(by giving your spent cartridge to a remanufacturer), you're suddenly a
patent infringer. More importantly, Lexmark can sue cartridge
remanufacturers for "inducing" patent infringement by making and selling
refills.
Yes, Lexmark is the company that already tried and failed to control the
printer cartridge after-market using the Digital Millennium Copyright Act
(DMCA). Contract and patent law are clearly proving more amenable. The
question is, how will the ruling impact the way companies do business in the
future? Asks Fred:
Will patent owners exploit this decision as an opportunity to impose
over-reaching restrictions on formerly permitted post-sale uses, repairs,
modifications, and resale? Will consumers soon confront "single use only,
not for resale" notices on more and more products? Will innovators stumble
over labels announcing "modifications prohibited"?
Obviously, we can't know yet. But the danger is there.
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