
Patent Law Shouldn’t Block the Sale of Used Tech Products - walterbell
http://www.nytimes.com/2015/09/07/opinion/patent-law-shouldnt-block-the-sale-of-used-tech-products.html?_r=0
======
atirip
I don't know about Patent law, but it should be made illegal to mask renting
as selling. That would be first step to let consumers know. Like in this
Lexmark case - if you are required to return the cartridge, then this
transaction is not sale. And on and on, same with electric cars where you do
not own the battery.

~~~
URSpider94
In the US, unless you are signing a contract of some sort, then a sale is a
sale. Any physical object that you simply buy at the store is yours, full
stop.

I don't understand the comment that you make about not owning the batteries in
an electric car. If you own the electric car, then you own the batteries,
that's not in question.

However, manufacturers often put measures into place that make ownership less
useful:

\-- They might load software into the device that makes it respond to their
control, and limits your ability to use the object

\-- They might restrict availability of manuals, repair parts and other
information to incentivize you to use their service facilities

However, I would argue that these are not the same as infringing on your
ownership.

~~~
rnovak
I'm not sure if you've been keeping up with US news, but this isn't true, at
least until it's decided in court. GM, John Deere, and Ford all have the
opposite opinion[1][2][3]

[1][http://www.againstcronycapitalism.org/2015/04/john-deere-
and...](http://www.againstcronycapitalism.org/2015/04/john-deere-and-gm-says-
you-dont-really-own-any-vehicles-bought-from-them-you-only-have-an-implied-
license-for-the-life-of-the-vehicle-to-operate-the-vehicle/)

[2][https://www.techdirt.com/articles/20150421/23581430744/gm-
sa...](https://www.techdirt.com/articles/20150421/23581430744/gm-says-that-
while-you-may-own-your-car-it-owns-software-it-thanks-to-copyright.shtml)

[3][http://news.boldride.com/2015/04/gm-wants-to-make-working-
on...](http://news.boldride.com/2015/04/gm-wants-to-make-working-on-your-own-
car-illegal/76702/)

Not to mention I think it's currently _illegal_ to Jailbreak an iPhone or root
an Android, despite them being _yours_.

I really do wish the US was as cut/dry as you make it seem, and I wish they
cared about consumers more, but in reality, Companies get far more rights then
we, as consumers, do.

Edit:Formatting

~~~
superuser2
The hardware is yours. If you want to blow away the firmware and write your
own, no one can (legally) stop you on copyright grounds, though it might lose
its street-legal status in the interest of the people you might manslaughter
by writing buggy code.

It's where you want to modify the software and post a derivative work online
that copyright law kicks in. You may as well say that you do not "own" a book,
because you don't have the right to share an edited version of it. Sort of
true, but not very interesting.

~~~
TheLoneWolfling
> If you want to blow away the firmware...

False premise: you often cannot blow away the firmware, because it is either
hard-coded, or signed.

And even when said premise is correct for a device, there are cases where the
firmware inherently requires copyrighted material (For instance, requiring a
(copyrighted) poem in a handshake).

~~~
superuser2
What the manufacturer makes it easy to do and what you can get in legal
trouble for are different things.

Do you want the state to use men with guns to force everything with a
microcontroller in it to also come with an SDK? I'm basically a socialist, and
even I think that's ridiculous overreach.

~~~
unprepare
Unlocking your phone in the US was actually illegal until August 1st of 2014.

You could be held for circumvention of copy protection schemes.

[http://arstechnica.com/tech-policy/2013/01/unlocking-new-
cel...](http://arstechnica.com/tech-policy/2013/01/unlocking-new-cell-phones-
to-become-illegal-on-saturday/)

~~~
rayiner
If you wiped the software rather than modifying it to unlock it, that probably
wouldn't be illegal.

------
marincounty
I sometimes wonder if we really own the products we buy. It feels like I'm
theoretically leasing, more and more products. Item breaks down, you need to
send it back to the company. "We don't sell our service manuals." I need to
buy their toner, ink, etc?

I repair watches. Their are certain brands I cannot buy parts for. Even as a
certified watch repairer, most companies won't sell parts to me, or anyone
else--no matter how much experience you have. You are forced to send that
watch back to the factory, and pay outragious prices for repair and service.

So you did ok financially. You go out and buy a fine watch. A watch designed
to be taken apart--over and over again. A watch you plan to hand down to your
kids. The only problem is you, and everyone else who owns that watch needs to
send it back to the factory for service(cleaning, and oiling), and parts when
it stops keeping time. You don't own the watch, you are mearly leasing it.
It's not about quality service; it's about money.

If you happen to own one of these watches. If it ever stops don't think you
have the right to repair it yourself, or decide who repairs your timepiece. It
has to go back to the factory.

A. Lange & Sohne Alfred Dunhill (Rolex, and Omega sell to some certified watch
repairers, but are trying to find ways to eliminate 3rd party watch
repairers.) Audemars Piguet Bertolucci Blancpain Breguet Breitling Bulgari
Cartier Certina Chaumet Chopard Daniel Mink David Yurman Dior Diesel Doxa
Fossil Franck Muller Frederique Constant Glycine Guess Harry Winston Hublot
Jaeger-LeCoultre Krieger Luminox Marcel Watch Meylan Stopwatches Mont Blanc
Nixon Parmigiani Piaget Pierre Balmain Raymond Weil RGM Sector Skagen Tourneau
Tutima Ulysse Nardin Vacheron Constantin Van Cleef & Arpels Zodiac

Yes, the watch analogy is little off topic, but I believe relevant. If
consumers don't smarten up, more and more companies are going to be "milking"
you for money, or we will be forced--economically to just buy another
expensive unit of their product? (It's not just ostentatious watches, it's car
companies that won't sell 3rd party auto repairers scan codes in order to
repair their complicated/mess of wires, and computers? It's more product than
people realize? I believe in recycling/repairing goods? I don't like this
throw away society.

~~~
rm_-rf_slash
I feel terrible that my sausagy American fingers accidentally downvoted you
because you make an excellent point. I fear that by stripping people of their
agency when it comes to things they've already purchased implies that
companies not only still own things you buy, but by extension, they own you.
They own your priorities for use, your necessity for repair, and your
creativity for adaptation. It's like if it were illegal to use anything but
Home Depot(TM) nails on Home Depot(TM) planks, or auto shops that have to kick
back to Ford or GM or else they couldn't touch your car.

I can't see this principle as anything but incumbent crony capitalism and a
completely unnecessary drag on the economy.

~~~
jdmichal
> It's like if it were illegal to use anything but Home Depot(TM) nails on
> Home Depot(TM) planks, or auto shops that have to kick back to Ford or GM or
> else they couldn't touch your car.

It's actually nothing like that. It's like Ford refusing to sell you parts for
your car. Or Apple refusing to sell you parts for their computers. Nothing
says you can't acquire parts from another manufacturer, nor is there anything
preventing you from performing the repairs yourself. (Other than maybe
warranty terms, which is IMO not a moral hazard.)

~~~
TheLoneWolfling
> Nothing says you can't acquire parts from another manufacturer, nor is there
> anything preventing you from performing the repairs yourself.

Incorrect.

> I'm not sure if you've been keeping up with US news, but this isn't true, at
> least until it's decided in court. GM, John Deere, and Ford all have the
> opposite opinion[1][2][3]

> [1][http://www.againstcronycapitalism.org/2015/04/john-deere-
> and...](http://www.againstcronycapitalism.org/2015/04/john-deere-and..).

> [2][https://www.techdirt.com/articles/20150421/23581430744/gm-
> sa...](https://www.techdirt.com/articles/20150421/23581430744/gm-sa..).

> [3][http://news.boldride.com/2015/04/gm-wants-to-make-working-
> on...](http://news.boldride.com/2015/04/gm-wants-to-make-working-on..).

> Not to mention I think it's currently illegal to Jailbreak an iPhone or root
> an Android, despite them being yours.

> I really do wish the US was as cut/dry as you make it seem, and I wish they
> cared about consumers more, but in reality, Companies get far more rights
> then we, as consumers, do.

For instance: parts that refuse to work unless all other parts return a
handshake containing a copyrighted message.

------
jackgavigan
What's really at stake here is is the business model of selling printers below
cost and making profit on the cartridges.

Epson was the first major printer manufacturer to ditch that business model,
with it's EcoTank range: [http://www.wsj.com/articles/review-epson-kills-the-
printer-i...](http://www.wsj.com/articles/review-epson-kills-the-printer-ink-
cartridge-1438683871)

~~~
emodendroket
The article is talking about toner; is that really also true for laser
printers?

~~~
dikaiosune
Seems to be. Maybe I'm buying cheap printers, but the last two I've bought had
anemic toner cartridges along with a catalog and order form for direct sale of
the cartridges that were actually full. Notably the manufacturer toner
cartridges were close to the price of the printer itself, while the third-
party knockoffs on Amazon were a fraction of the price.

I'm no industry insider, but their packaging behavior says to me that their
real money is in getting you to buy their toner, and the stark price
difference between first and third party replacements indicates the likely
markups on the first party option.

~~~
jsprogrammer
There is MRR in ink, not so much in printers. If you naively optimize for MRR,
your business will operate around extracting profit from ink selling schemes,
not printer selling schemes.

------
tim333
Indeed patent law shouldn't block the resale of any products if you bought
them legitimately in the first place. Just think if the precedent got set and
you couldn't sell on your cars, computers and the like because someone had
some patent.

------
PythonicAlpha
Patent law is totally overstretched today.

Once it was said, that patent law was introduced to support small inventors
and the disclosure of inventions. Today's implementation of the patent system
fails in both respects!

Small inventors are not supported, but hindered by the current patent system.
And no essential inventions are disclosed anymore by the patent system. Most
patents are about things that are so trivial that the patent disclosure brings
no additional knowledge to the world. Even the other patents most often do not
hold enough knowledge, that would be a real "disclosure" \-- patent lawyers
are trained today to "disclose" with out real disclosure. The real information
is hidden -- just enough information is given, to block competitors.

As we can see, additionally the patent system is misused by big corporations
today more and more to protect their monopolies. Essentially, patent law is
used by the big players to damage the interests of consumers. Today we could
also speak of a concealed "patent-tax" that all of us are paying when we buy a
smart-phone or other high-tech products. With any product, we pay also for
patent-fights, for a host of patent-lawyers many companies need today and for
the situation, that cheaper products are blocked by patent-holders.

The problem is, that there are to many interests pro-patent. So a real reform
will never be undergone by today's politicians.

------
amelius
Patent Law shouldn't block any sale. It should at most lead to reasonable
financial compensation of the inventors.

~~~
dalke
If you have a patent, and I use the patent to sell a product, why shouldn't
you as patent holder be able to get an injunction to prevent me from selling
the product?

Also, what does 'reasonable financial compensation' mean? Consider newly
patented drugs. The R&D cost is enormous, even without covering the cost of
the attempts that failed to get to market. And there can be multiple patents,
including the method of action and the method of synthesis.

If you have 5 patents for drug X and I infringe on 3 to make a competing drug
X', do I pay less than if I infringe on all 5 patents?

(Edit after several people commented: I believe that amelius meant to include
mandatory RAND-like licensing for first sale. My response should be read in
that vein.)

~~~
ingenter
> I use the patent to sell a product

Let's say that you are a patent holder for an über-toaster.

If some company is making über-toasters using your patent, you can stop them
from using your patent for their profit. This is what patents for.

If some other company is buying _used_ über-toasters, fixes them and re-sells
them, you should not be able to stop them from re-selling fixed über-toasters.

~~~
Joeri
It seems to me that when a patent covers a product that is sold, the sale
implies a license on that patent for that product. The license is sold along
with the product. So if the über-toaster is resold, the patent license is sold
along with it, regardless of the number of intermediate steps.

If that's not how the law works, it's how it should work. Actually scratch
that, the way it should work is to not have patents at all, since they lost
their net benefit to society a long time ago (if they ever had it), but that's
a whole other can of worms.

~~~
venomsnake
Patents are still valuable, but only for research that requires massive
investments.

~~~
Joeri
They also cause a lot of research not to happen, and a lot of products to not
come to market. If you take a holistic view, as a society we would be better
off without patents.

~~~
throwawaykf05
There is simply not enough empirical evidence to support your assertions.
Every time I've asked for evidence to support similar assertions, I've gotten
nothing but vague anecdotes or historical examples that have been debunked.

This is unfortunate, because there are plenty of empirical studies showing the
benefits and costs of patents (search ssrn.com for "patents" and focus on the
studies that use economic data). The upshot is, to date nobody has been able
to say the one outweighs the other largely because they are not directly
comparable.

~~~
nitrogen
Does the book "Against Intellectual Monopoly" not have any such examples?

[http://www.dklevine.com/general/intellectual/againstfinal.ht...](http://www.dklevine.com/general/intellectual/againstfinal.htm)

~~~
throwawaykf05
This book gets cited a lot in such discussions, so I usually just respond by
linking some of my previous comments that address it and related works :-)

[https://news.ycombinator.com/item?id=7890441](https://news.ycombinator.com/item?id=7890441)
[https://news.ycombinator.com/item?id=8157206](https://news.ycombinator.com/item?id=8157206)

------
brownbat
Kirtsaeng solved this for copyright, but first sale in copyright is different
from exhaustion in patents.

I'd ordinarily assume the courts would follow the path of Kirtsaeng, and find
for the refiller.

However, if the court's asking for briefs on Kirtsaeng's applicability...
that's a worrying question. Kirtsaeng is not binding as a matter of law in
this domain, even though it's the better solution. The court wouldn't ask for
briefs on applicability if that wasn't potentially decisive. So maybe the
Court is prepping to find for Lexmark, and will force SCOTUS to explicitly
extend Kirtsaeng-reasoning to patents.

