
Patent Owners Can Prevent You from Owning Anything - pavornyoh
https://www.eff.org/deeplinks/2016/02/federal-circuit-sticks-its-guns-patent-owners-can-prevent-you-owning-anything
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pklausler
My name is on a pile of US patents, all assigned to whomever employed me at
the time that they were filed. It's always been a condition of employment that
I would disclose inventions and cooperate with the filing of patent
applications. And now there's a bunch of good ideas that I know are not being
exploited for value by anybody. I feel as if I have somehow betrayed the
scientific Enlightenment by doing my duty by my employers.

~~~
desdiv
To play the devil's advocate: 20 years from now someone trying solve a hard
problem could stumble upon your patent via a simple google search.

~~~
toolslive
I've discovered something for the company I worked for, wrote the patent draft
and spent weeks trying to explain to the patent lawyers,who wrote the final
version, how it worked. So I should have a good understanding of the topic,
but yet, I honestly don't understand the granted version of the patent. It's
total gibberish.

~~~
dognotdog
You are not alone, I also do not understand much of my patents after they've
been lawyered up. I attribute it to a) them trying to change the language to
be as broad as possible, while b) making it also deliberately hard to figure
out what the damn thing is supposed to do in the first place.

~~~
justaman
One of the greatest crimes of recent history is allowing lawyers to write a
document so confusing only their circle of lawyer buds can understand it. Much
of the "legal" world is so obfuscated that ignorance SHOULD BE a valid excuse
for breaking the law.

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guelo
We really need to get rid of the Federal Circuit. On first blush it seems like
a good idea to have a court that specializes on technical patent issues. But
it turns out that most lawyers interested and experienced in patent law are
corporate lawyers who spent their whole careers creating and defending patents
without ever thinking from the consumer point of view at all. So the patent
court ends up packed with a bunch of over the top, maximal patent rights
judges.

~~~
qrendel
Can confirm this attitude among some lawyers I know. A certain unspecified
family member does contract law (not even IP law) and totally buys into the
life + 70 years to "promote innovation" copyright BS without question.

~~~
monochromatic
The Federal Circuit isn't a copyright court, it's a patent court.

~~~
xiaoma
Similar shit, different bull.

Both examples fall under the same umbrella of IP laws run amok and
impoverishing society rather than bringing more creation to the public domain.

~~~
monochromatic
It's not even close to similar.

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jedmeyers
I don't really understand what is going on with the legal system in the US
lately? We have all those nice protections for the buyer ... unless the seller
chooses not to provide them. We have all those nice protections for consumers,
like being able to sue in case something goes wrong ... unless the other party
decides not to play this whole 'legal system' game and includes an arbitration
clause in the initial agreement, which basically means "we can break the
agreement but you don't". What's up with that?

~~~
rhino369
Arbitration clauses are wrongly maligned. If I had a conflict with a company
I'd want to do arbitration and civil litigation is my day job. The major
arbitration companies are fair and professional.

The only downside is that arbitration is still too much like litigation.

~~~
labster
The only downside is that the consumer never has a choice in the matter of
arbitration at all. There's a take-it-or-leave-it EULA, which if you reject
you cannot legally use the $300 item you bought. The consumer never has a
chance to choose if they get arbitration or not. The consumer never has a
choice of the arbitrator. The consumer does not have a choice of venue. The
only choice the consumer has is to whether or not to file suit.

I've been dreaming about a ballot proposition which says that if a person
agreed to a contract that enforced binding arbitration, and was never given an
opportunity to amend the contract, then the consumer would be eligible to pick
the arbitrator from the set of licensed arbitrators. The company still gets
its cost savings from avoiding court, but is not in effect buying a whole firm
of arbitrators. The consumer at least can get some attempt at a fair choice in
a case of a complaint, which is more choice than they have now.

~~~
stult
>I've been dreaming about a ballot proposition which says that if a person
agreed to a contract that enforced binding arbitration, and was never given an
opportunity to amend the contract, then the consumer would be eligible to pick
the arbitrator from the set of licensed arbitrators.

The Supreme Court decided in AT&T Mobility LLC v. Concepcion that the Federal
Arbitration Act preempts state laws disfavoring arbitration. Your proposed law
would invalidate a large number of existing arbitration agreements and so
would likely also be preempted. At this point, it will take an act of Congress
to make any significant changes to existing consumer arbitration laws because
conflict preemption will invalidate nearly any conceivable state law favoring
consumers.

It's an upsetting state of affairs because the federal government does little
to protect consumers yet consistently interferes with the ability of state
governments to do so (see, e.g., the Office of Comptroller of Currency's
frequent interventions to prevent state regulators from investigating
predatory lending practices in the years leading up to the financial crisis).

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craigds
This kind of bullshit is why I'm deeply scared of the TPPA. We _don 't_ want
this kind of rubbish in NZ.

~~~
tremon
Be sure to let your representatives know, then. Please? On behalf of all of
us?

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spodek
Once the government grants a monopoly, no matter how limited or small, the
foothold and motivation exist to expand it.

The system is: a small number of monopoly holders, each with strong incentives
to expand it, versus the rest of the population, none of whom cares that much
about a single case, and a court system that responds to the more motivated
party.

The rest is a matter of time.

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kazinator
> _And because patent infringement generally does not require “intent,” a
> consumer could be liable even if they never saw the notice or agreed to it
> (for example, if they bought the product used without the original
> packaging)._

Can it? Who can prove that there was such a notice, long after the packaging
is gone?

Maybe _almost_ all units had such packaging, but I carefully inspected the box
before opening the one that I bought, and didn't see any such notice. Can you
produce my original packaging to show me the notice?

Or how about: I got it out of box for a reduced price. At the time I completed
the sale, there was no packaging. No implicit contract can possibly bind me to
a time prior to the sale, when persons unrelated to me in any way removed the
packaging.

~~~
tonyarkles
Here's where I wear my devil's advocate hat:

If you bought the product out of box, then the person who sold it to you had
no right to sell it to you! Our agreement with the distributor specifically
states that the product must be sold in the original packaging. In the same
way that you can't go around selling your neighbour's house, the distributor
had no right to sell that product to you. Give it back now please.

~~~
kazinator
But you got paid and so did the seller. The seller did "wrong", not me; why
should I give it back and not be compensated? You can buy it back from me for
the full retail price that I paid plus taxes.

~~~
SixSigma
You can sue the person who sold it to you and attempt to recover the money.

Just like if I buy a stolen car and the police come knocking. bye bye car, bye
bye cash.

~~~
tluyben2
With a stolen car when you buy it, you did not do even the most basic of due
diligence so there it is understandable. With most other products you cannot
do due diligence. Comparing this to stealing makes the case in point though;
the original user did not read the small print should be treated vastly
different than going out and stealing something.

~~~
SixSigma
Due diligence is a bit tricky though. Thieves have more practice than you.
This guy bought his from a high street dealer and even had it checked

[http://www.telegraph.co.uk/finance/personalfinance/2738806/A...](http://www.telegraph.co.uk/finance/personalfinance/2738806/Are-
you-driving-a-stolen-car.html)

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cwkoss
This is deeply disturbing.

~~~
lisper
It certainly is. I know that "me-too" comments are generally frowned upon, but
an upvote by itself is not enough here. This is really, really bad,
particularly with the SC in turmoil.

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rhino369
I think the bigger problem is the ability to sue unsophisticated end users,
even when big fat suppliers, retailers or manufacturers exist and are easily
sued. The only reason a patent holder would do that is to make the legal
defense hard. This is a common troll tactic. Sue people with shady patents who
can't mount a defense and avoid the big pockets who would invalidate the
patent.

~~~
mdip
I may have read it incorrectly but didn't Lexmark sue a reseller, not an end-
user?

I don't think it changes anything -- my thinking is that suing over what is
likely a trivial change made to allow them to screw their customers by giving
away the printer and hiding the true cost of ownership in obscenely priced ink
by abusing[1] the patent system.

[1] Perhaps this practice is so common-place and blessed by the courts that
this is what the "patent system" has become so it's not really "abuse", but if
the patent system's design was to encourage expensive R&D by allowing for a
brief period of monopoly then it's rarely used for its original purpose.

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rayiner
> But there is a very big reason to make such a distinction: consumers’
> expectations based on long-standing law disfavoring these “restraints on
> alienability of property.” For almost 400 years, it has been widely accepted
> that those who manufacture goods shouldn’t be able to reach out and exercise
> a “dead-hand” of control over the goods once the manufacture has long passed
> ownership on to the consumer.

The EFF takes some artistic license here. The aversions to restraints on the
alienability of property apply to _real property_ ( _i.e._ land), which is
different than mass-manufactured chattel property for obvious reasons. The
doctrine has nothing to do with "consumer expectations" but is instead a way
to avoid land-use planning problems that result from use and transfer
restrictions in wills.

~~~
gr3yh47
Their general assertion here stands - there's still a general expectation from
consumers that once someone buys something physical it is theirs to do with as
they wish.

~~~
rayiner
They're presupposing that there is any legal recognition of that "general
expectation." That's why the invoke the doctrine of restraints on alienability
--to justify that such an expectation exists.

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Iv
"in USA". Luckily such madness tend to stop at the EU borders.

~~~
rahimnathwani
From another write-up about the case:

'Lexmark’s cartridges are “regionalized” such that a cartridge sold in Europe,
for instance, will not work in a printer sold in North America or Latin
America.'

~~~
TeMPOraL
Inkjet printers are almost a criminal abuse. The whole idea of putting a chip
on a cartridge that simply counts down and after specified amount of prints
forces you to replace the whole cartridge is one giant "fuck you" towards the
customer.

~~~
chopin
Then, don't buy it. I have a laser printer for exactly this reason.

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gizi
Japanese and especially European car manufacturers are good examples of the
problem. They load so much restrictive software onto their cars, that these
cars are now deemed unusable by at least half the global population. This
leaves a fantastic opening in the market for producers who offer an
alternative. Car manufacturers which are either less reliant on software or
else use free software are bound to win substantial market share.

~~~
numeromancer
That probably is more a result of various standards than an intent to limit
the use of their product.

~~~
tremon
No, it is at least partly an attempt to capture parts of the car service
market. Requiring brand-specific (or model-specific) tools for maintenance of
cars allows for far more rent extraction than just dealership/garage
certifications.

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mdip
Although I tend to be anti-patent, the circumstances around the case are
important and the eff didn't really provide them. The link, included, pointed
directly to the ruling which I was unable to grok as a non-lawyer.

I found a more detailed explanation from a site that is "pro patents". Ignore
the bias, but it's a good explanation of what happened here and I feel it's
made it no less distrubing: [http://patentlyo.com/patent/2015/04/lexmark-
impression-facts...](http://patentlyo.com/patent/2015/04/lexmark-impression-
facts.html)

The TL;(not-terribly-accurate)DR; is that Lexmark patented some elements of
their toner cartridge and sold a "regular" and a "single-use" version at a
discount with DRM to prevent its re-use. They sued a reseller that
circumvented this single-use restriction and won on the "license" that states
the single-use cartridge cannot be resold.

This is the kind of case that makes me _hate_ the patent system when I'd
otherwise be a proponent of it in spirit[1]. In the case of Lexmark, it
appears they're using the patent system in order to continue the lousy
practice[2] of charging very little for the printer while gauging the customer
on the ink, a practice that I wish the patent system didn't enable. In all
likelihood, they've patented some very tiny, novel part of the toner cartridge
(perhaps the chip that prevents its reuse?) and are using it to enforce this
sort of bait-and-switch.

I also hate the idea of enforcing a "single-use" rule via DRM and then suing
to further push the idea that we don't actually own the things we buy. I'll
avoid buying products that have these kinds of restrictions but if the
practice becomes common-place, I expect I'll begin to have trouble doing that.

It makes me think of the little plastic cups I purchased for a family party I
had last year. I was surprised to see them adorned with "U.S. Patents ####."
So does this court order indicate that they can simply write a blurb
indicating that they may only be used for a "Single Drink" and they can
proceed to sue anyone for infringement if they fail to abide? That's reductio
ad absurdum, of course, but there's many products/scenarios in-between that
which are possible and likely if restricting your customers is your business
model.

[1] In theory, I like the idea of giving an inventor who has created something
truly unique a brief period of protection against incumbents, who will likely
do whatever they can to either prevent the new product from disrupting their
existing sales or copy a small inventor out of business. This is provided that
the barriers for entry are particularly high. In tech, they're so low that it
seems the _only_ way patents are used is for predatory purposes by large
companies.

[2] It's a bait and switch of sorts in that people pay less attention to
price-per-page than they do the initial investment. It's this reason that I
chose to buy a black-and-white laser printer the last time I purchased a
printer (2005?). I've gone through two $35-$65 "compatible" toner cartridges
since then.

~~~
teddyh
I think you mean “gouging”, not “gauging”.

~~~
mdip
Gah, yes, thanks for that. Edit button is gone or I'd fix it ;).

------
dh997
File a patent on the generic supposed protection of intellectual, design and
creative ideas to overworked, inconsisent and vague government entity that are
then hoarded by lawyers with lots of money whom frequently visit Texas. Maybe
that would wake up some folks to the fact that their ostensible protection
process is right now a protection racket.

