
The US Supreme Court is hearing a case about patent law’s “exhaustion doctrine” - DiabloD3
https://www.eff.org/deeplinks/2017/03/patents-are-big-part-why-we-cant-own-nice-things-supreme-court-should-fix
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dvfjsdhgfv
It's interesting to note Lexmark tried to (ab)use other kinds of so-called
"intelectual property" laws earlier: the copyright law and DMCA. When they
failed, they decided to use patents instead. And all this for what purpose? To
prevent people from using cartridges manufactured by other companies, i.e.
blocking competition and acting against free market and user rights. If this
isn't abuse, I don't know what it is. If you can't build a superior product
supported by good marketing, don't try to save yourself by legal action. If
you do, you only alienate your customers, the very people you should serve
first.

~~~
maxerickson
The thing is there are printers without the stupid on the market.

So the EFF is wrong, patents haven't savaged the printer marketplace, there
are nice printers available that are not expensive. And it's wrong that the
market will punish shitty products, Lexmark is one of the few survivors in the
printer business.

~~~
Someone1234
It is almost impossible for new competition to enter the printer market
because it is so patent encumbered. That's why you can only buy a printer from
Canon (inc. HP brand), Epson, Lexmark (inc. Dell brand), Samsung, and Brother.

Anyone trying to start a new printer company will get sued into the ground or
blocked by a US court from even importing their printers. That's why countries
without strong patent protections have a local printer brand that costs half
as much or less.

It is also why we witnessed such a strong 3D printer marketplace for a while,
different companies entering an unencumbered market and trying to establish a
monopoly via IP protections.

Printer innovation is non-existent (outside of innovate ways to make more
money, like subscriptions). That's because there's no threat to their
position, nobody can go near printers and they know it.

~~~
Animats
That hasn't been true for years. HP's original Inkjet patents are long
expired. That technology was a major breakthrough. They had to do fluid
simulations on a supercomputer to get the ink control to work right. Someone
involved once told me that intuition totally fails on that problem - fluid
behavior on that scale is not at all like what one might expect.

~~~
ThrustVectoring
That doesn't mean that HP wouldn't sue you for violating any number of
possibly-applicable patents that are currently valid.

~~~
wbl
If you make an exact copy of that first inkjet they cannot sue you.

~~~
justinclift
_cannot_ seems like a strong term.

They'd very likely try (hard), even if they eventually end up losing. Then try
again a different way using a different approach, then again (etc). "Drown the
opposition" in legal fees seems to be a commonly used tactic by larger
(bullying) companies.

------
ballenf
I worked at Lexmark shortly after they spun off from IBM. As an intern in the
early 90s I was tasked with researching crypto methods of securing their
printer cartridges. Whoever bought or was running Lexmark from day one had
these goals in mind as a key part of the value-add in buying IBM's old
typewriter division.

My answer, at the time, was 'no' there is no foolproof way of using crypto
because the keys would have to be stored in the chip that the refiller has
access to. I'm sure there were actual engineers working on the same task, who
I assume gave the same answer since they moved on to legal instead of
technological means.

Even at the time, I was disheartened by the leadership's attitude and goals.
Kind of amazing that for 20+ years they haven't abandoned this approach.

~~~
javajosh
I wonder if the founder of Lexmark started the company with the big idea,
"Hey, let's apply the razor/blade business model to printers!" If so, then
"abandoning the approach" is impossible, and the approach will only be
abandoned with company failure.

And you know, I have to say it: it's unethical, immoral, but it's not illegal
to have a nefarious business plan, and I'm glad. To me, the larger issue is
that _the justice system has itself become a weapon to punish competitors_ ,
particularly through the use of IP claims. Punishment occurs long before
conviction, when the cost of defending yourself can mean a significant and
ongoing expense. A justice system that ignores reality, including economic
reality, cannot be just.

------
turc1656
This is just an extension of a tied sale. Tying agreements are already illegal
under anti-trust law. The only difference here is that Lexmark (and other
companies) are skipping the contract/agreement part of it and going directly
to forcing the hand of the consumer by adding new changes and inserting
technology that has no other purpose than to specifically limit the consumer
to purchase a related product (in this case, ink), where no such restriction
previously existed and therefore is not naturally occurring. This is even
worse than a regular tied sale arrangement because the consumer never agrees
to it.

The only wrinkle I can see is that the tied sale laws seem to relate to
unrelated products or services. The ink that goes with the printer is
obviously related, but I think that's irrelevant here because of the history
of inkjet printers. We all know that there never used to be any inherent,
natural limitation to obtaining ink from another manufacturer as long as it
was designed specifically for your make and model. The new changes were
deliberately put in by Lexmark and other printer manufacturers for the sole
purpose of restraining trade/commerce. That is blatantly in violation of anti-
trust law.

~~~
josaka
It's worth noting that tying agreements are no longer per se illegal in all
cases. Courts have recognized procompetitive benefits in some cases. Now it's
only under certain conditions.
[http://www.americanbar.org/groups/young_lawyers/publications...](http://www.americanbar.org/groups/young_lawyers/publications/the_101_201_practice_series/the_wonderful_world_of_tying.html)

~~~
turc1656
Interesting. Thanks for this information.

Obviously, this wouldn't apply to the case at hand, though, as Lexmark is not
a newcomer to the industry nor is the industry itself relatively new, thus
requiring facilitation from tied sales.

If the USSC ends up ruling against Lexmark, the Justice Department should
follow it up with indictments for felony violations of 15 USC.

------
Someone1234
I don't think patents are inherently evil; and I also believe that "obvious"
patents will get less common with time (relatively speaking we're still in the
early days of patent law for many areas).

That being said, I think the big issue we're seeing these days is that some
patent categories simply last too long. Technology moves a mile a minute, a
patent system with a duration of 20 years is absurd, something that was
innovative in 1997 doesn't continue to provide the same level of value in 2007
let alone 2017.

At absolute MOST the patent duration for technology patents should be halved.
Ten years is still too long but at least there's a chance the entire industry
doesn't overtake the patent too much, five years would be better but
realistically patents are fairly expensive to file so the whole system might
collapse.

~~~
danielweber
When I was at a start-up and had someone literally rip-off our product
(including typos), we would have really liked some faster protection than the
patent, which took around 2 years to issue.

As a business matter, we would have happily accepted a shorter lifespan in
return for a quicker decision.

~~~
joshuaheard
You say typos so I assume you are referring to software, which has an
automatic copyright on creation, and can be enforced much easier and faster
than a patent.

~~~
danielweber
There were multiple paths we pursued in consultation with our lawyers. If you
want me to take your advice over Fish & Richardson, okay.

~~~
wahern
They're a law firm that specializes in _patents_. When all you have is a
hammer....

Also, presumably you failed to register your software with the copyright
office before the infringement began. In such a case you're less likely to get
a fat damages award. Which is actually a good reason to pursue a patent claim,
but if we're being cynical it's also a good reason for a firm to _prefer_ a
patent claim.

The fact of the matter is that if the case was a slam dunk as you say, you
should have been able to get an injunction fairly quickly, depending on when
this occurred. Step one to seeking an injunction would have been to register
your software (or a component of the software, if you didn't want to divulge
the whole thing) with the Copyright Office. Currently their e-filing website
says it'd take 6-10 months. It used to be much shorter than that. A few years
ago, IIRC, I received a certificate in less than 90 days. In any event, that's
much shorter than 2 years.

It's also a good lesson: always register at least some component of your
software with the Copyright Office; a component that an infringer would
necessarily have to copy. To get through the courthouse doors you need a
certificate from the Copyright Office, but it doesn't have to cover the
entire, larger work. It's more of a procedural hurdle of the copyright statute
that courts construe very liberally, so you needn't be afraid of having to
publish all your source code just to get a certificate.

The nice thing about copyright is that it's simple enough that you don't
really need to involve a lawyer. Of course, you don't do this to the exclusion
of any patent filings, but it's a smart move that is almost zero cost. Paste
your software into a TeX document, generate a PDF, and upload it to the
Copyright Office website. Easy peasey.

NOTE: IANAL

~~~
danielweber
> They're a law firm that specializes in _patents_.

What the fuck. Oh, you got that when you googled them, and you think the
fucking top-tier national IP law firm had no other ideas at all because the
patent hadn't issued yet.

> NOTE: IANAL

No shit.

HN is such a fucking clown show.

------
lutusp
I'm in my 70s and I've seen a complete change of atmosphere since the 1950s
when I first interacted with tecnology.

In 1950, apart from a small number of ready-made products, if you wanted
something out of the ordinary, you designed and built it (I was a ham radio
operator at the age of 13). I would build my radio gear out of the salvaged
parts from neighbors' discarded TV sets (which in those days were very short-
lived).

Decades later I saw people lose interest in either understanding technology or
building/repairing their own. I found this change discouraging, but I failed
to see where that was headed.

Now corporations are using the political/legal system to forbid people from
closely examining their technical purchases or changing them to suit new
needs. For most people the level of required knowledge is quite beyond
imagining, so it may not seem much of a burden, but for a shrinking minority
with technical skill, it nips creativity in the bud.

It's a variation on the classic Time Machine plot (H. G. Wells) -- the
minority Eloi live on the surface, designing and building IPods for the
troglodytic Morlocks.

To me personally, the real tragedy will be when people can't even imagine
understanding, repairing or building their own equipment.

------
zebrafish
Without the guarantee of a patented marked up drug, would drug companies waste
the same amount of money that they currently do on R&D? I'm of the opinion
that we would see a major slow down in drug innovation without patents.

R&D is very wasteful and expensive. Patents prevent competition for a short
period of time to help the business recoup losses from failed experiments and
to deliver profits which serve as an incentive for more innovation.

~~~
frgtpsswrdlame
We just need shorter patents. For example drug companies spend far more on
marketing than they do on R&D and a substantial amount of the research that
generates new drugs comes from government funded research (>50%). Also, it's
been demonstrated that taxpayer funded research drives private R&D up. So if I
was dictator, I'd make it illegal to advertise drugs on tv/radio/web, double
the current government budget for drug development R&D and make medical
patents expire much more quickly. (And maybe something to allow Americans to
buy drugs from overseas markets? Not sure on that one yet)

~~~
danielweber
> We just need shorter patents.

This is nuts. By the time a major drug is ready for market, out of a 20 year
patent there are usually only 5 years left. How much shorter do you think it
should be? When they are operating under that kind of deadline, they don't
have time for word-of-mouth marketing.

For software, sure, I'm really willing to hear arguments that 20 years is too
long. But drug patents lifetimes are already very small. If something is too
expensive, wait a few years.

~~~
frgtpsswrdlame
>If something is too expensive, wait a few years.

Isn't that the point? In medicine, you often can't just wait it out.
Healthcare is not a normal market.

>By the time a major drug is ready for market, out of a 20 year patent there
are usually only 5 years left.

>And for most new drugs, patents expire approximately 12 years after market
introduction.

[https://hbr.org/2014/11/the-real-cost-of-high-priced-
drugs](https://hbr.org/2014/11/the-real-cost-of-high-priced-drugs)

>When they are operating under that kind of deadline, they don't have time for
word-of-mouth marketing.

Word-of-mouth marketing isn't really "slow" if the drug is very effective.

~~~
danielweber
> In medicine, you often can't just wait it out. Healthcare is not a normal
> market

Then you pay.

I have family members who are only _functional_ because of prescription drugs.
When I see someone on HN talk about how "oh, it will _probably_ be okay if we
mess with this market, I read this really cool article online that said so," I
see them no different than someone who decided on their own to start tinkering
with grandpa's iron lung, because "oh, it will _probably_ be okay." You don't
know what you are messing with. Stop it.

>And for most new drugs, patents expire approximately 12 years after market
introduction.

I don't know what the HBR's source is because they don't tell me. I am telling
you to find any drug you see newly on the market, particularly one you see on
tv since you worry about marketing budgets, and look up when its patent
expires.

~~~
frgtpsswrdlame
>Then you pay.

And if you can't afford it? Does society pay? Do we let them die? I'm
interested in your answer.

>I have family members who are only functional because of prescription drugs.

Me too.

>I don't know what the HBR's source is because they don't tell me.

And I don't know where your 5 year number comes from because you didn't
provide a source.

When I see someone on HN talk about how "oh, it will probably be okay if we
leave the market alone, I read this really cool article online that said so,"
I see them no different than someone who stood by a river and watched their
grandfather struggle against the current, because "oh, it will probably be
okay." You don't know what you are talking about. Stop it.

~~~
danielweber
> And if you can't afford it? Does society pay? Do we let them die? I'm
> interested in your answer.

The same thing that happens with the people whose lives could be saved _right
now_ if we stopped funding roads, or basic research, or investing in the
city's water system, or educating first-graders, or researching drugs, or
enforcing the property rights of rich people, or a bunch of other things that
aren't going to pay off for years and are not associated with one's political
party. It's not that the parties being funded are all completely honest and
trustworthy, but that the money still needs to be spent. Drug research is one
of the small number of things society does that actually add to the public
good forever. Every year amazing drugs that do amazing things go off-patent.
It's an amazing system and our children should be awed by how much stuff they
will have. "Hepatitis C" will be like "polio" for them.

There is no reason to think the years 2010-2025 are some magic perfect ground
where the drugs from pre-2010 are completely unsuitable and all the drugs that
will be invented in year 2025 and beyond are unimportant or will still be
found if a bunch of people who understand neither biochemistry nor economics
rebuilt the economic system around it.

Every generation has the option to quit investing in the future. There are
always people who want to stop all the painful sacrifices that are required
right now, and just live off of yesterday's accumulated sacrifices and then go
to sleep.

There will always be some procedure that keeps people alive but that costs Too
Much Money. It's how most countries have kept their health care costs under
control without noticeably impacting QALYs. There should be no doubt that
there are people who died sooner because of these decisions, but the system
works and doesn't bankrupt them. If "but we can't let someone die for a reason
as stupid as money" is your terminal argument, be thankful you weren't in
charge, or else society would have gone bankrupt a long time ago. These are
hard decisions but adults need to make them, and generally adults do make them
and things work out.

> When I see someone on HN talk about how "oh, it will probably be okay if we
> leave the market alone

I think there's a lot that can be improved about the market. I have a lot to
say about that, but you are trying so hard to be cute and using children's
arguments that goodwill can no longer be assumed. Good night and good luck.

~~~
frgtpsswrdlame
Unfortunately I'm one of those guys who just really enjoys having the last
word lol.

>The same thing that happens with the people whose lives could be saved right
now if we...

I'm just looking for an answer to the question. Right now society pays for
treatments that can't be afforded. Furthermore, I'm actually pro drug
development when most of your response seems to think I'm not. I actually
think that the current system does not support R&D like it should.

>I think there's a lot that can be improved about the market. I have a lot to
say about that, but you are trying so hard to be cute and using children's
arguments that goodwill can no longer be assumed. Good night and good luck.

I'm a mirror, you're glue... :P But seriously, I am citing my sources, there's
even a huge post in here a bit upstream you can read with all sorts of sources
debunking a couple industry claims. The point of turning your quote around is
to show that those sorts of diatribes aren't particularly useful.

------
bo1024
The EFF chose a very bad / misleading title compared to what the article is
actually about. A better one would be:

> Supreme Court to Rule on Whether Patent-Holders Can Control What You Do With
> Your Stuff

or something like that.

~~~
joshuahaglund
The title is a play on the phrase "this is why we can't have nice things." To
me, this reminds us that the things we have, we might not own.

"Control what you do with your stuff" sounds like the concept of ownership.

Yes patents do other things but according to Lexmark their patent means you
don't get to do the things you traditionally get to do with the printer you
bought.

~~~
bo1024
To me, the phrase has always referred to a scenario where someone misuses a
privilege, which is then taken away from everyone. And I don't see what that
has to do with this circumstance.

~~~
joshuahaglund
We once had the privilege of refilling our machines with whatever we wanted.
Now, because of the misuse of patents, we can't do that.

------
JohnJamesRambo
Parents are also a big part of why we have anything at all.

~~~
ekidd
There have been several historical studies done on the effects of patents on
innovation, and the results are mixed. For an example of the "patents may hurt
innovation" side, see
[http://levine.sscnet.ucla.edu/papers/ip.ch.1.m1004.pdf](http://levine.sscnet.ucla.edu/papers/ip.ch.1.m1004.pdf)
, which argues that the steam engine patents actually held back the
development of superior steam engines, reduced the total horsepower deployed,
and even distracted Watt (the inventor) from his business.

I've seen more detailed studies of patent history (which I can no longer find,
alas), and they make a good case that patents have an ambiguous effects on
industrial innovation. I'm not sure if I _believe_ these studies, but I don't
think it's an open and shut case either way. Also, steam engines may have
different issues than drug development, and drug developent may have different
issues than software.

~~~
lprubin
If you're interested in a book length exploration of patents on the anti-
patent side of the argument, I found this book to be well argued:

[http://www.cambridge.org/catalogue/catalogue.asp?isbn=978052...](http://www.cambridge.org/catalogue/catalogue.asp?isbn=9780521879286)

~~~
throwawaykf09
I believe ewatt (edit: Sorry not ewatt, ekidd, the GP) referenced that same
book. Here's my take on it:
[https://news.ycombinator.com/item?id=13930823](https://news.ycombinator.com/item?id=13930823)

------
nsnick
I would like to thank whoever changed the title of this post. The old title
led this comment section to the generic patents are bad discussion while not
addressing the substance of the article. It was clear the people commenting
hadn't actually read the article. The new title has already started steering
the conversation towards what the article actually says and people will be
educated about the exhaustion doctrine.

------
AndyMcConachie
I initially misread this as, "Parents are a big part of why we can't own nice
things." And could only agree.

------
joncp
I don't get it. If Lexmark is so hell-bent on preventing refilling, they could
just simply change the purchase to a rental. Then, if don't return the
cartridge to them you don't get your deposit back. They could even spin it as
some sort of "we're being really green by making sure all of our cartridges
are recycled" campaign.

The same goes for all of the farm equipment manufacturers that are fighting
the right-to-fix movement. Why even have that fight and look like the bad guy?
Again, I just don't get it.

------
kevin_b_er
Lexmark and the Federal Circuit are now a direct and actual threat to the
notion of the ownership of property, both real and personal, in the United
States of America.

------
microcolonel
Statute is cancer, long live common law.

------
monochromatic
The title is typical EFF bluster. This case is about a relatively narrow
question on patent exhaustion, not a referendum on patents in general.

~~~
JustSomeNobody
while this may be, when it comes to the EFF I give them some latitude. I think
they're fighting the good fight in general and if they get more exposure then
I'm ok with that.

