The U.S. Supreme Court recently ruled on behalf of consumers in a lawsuit by Lexmark International, the maker of computer printer ink cartridges.
The company wanted to control what happens to its cartridges after they’re sold, seeking to prevent anyone from refilling them instead of buying a new one.
The high court rejected the claim, which was a “big win for individuals’ right to repair and modify the products they own,” according to the Electronic Frontier Foundation, a leading privacy advocacy group.
But the issue is far from resolved, commentary writer Elliot Harmon warned on the EFF site: The U.S. Patent office just granted a patent on the shape of a Ford automotive windshield.
Why would a company want a patent on the shape of a window?
Harmon points out that any replacement glass needs to be the same shape as the original.
“If the Patent Office continues to issue stupid design patents like Ford’s windshield patent, it risks giving manufacturers carte blanche to decide who can repair their products. And customers will pay the price,” he wrote.
The background to the warning is the Impression Products Inc. v. Lexmark International Inc. case in which the Supreme Court affirmed a consumer’s “right to own the things you buy.”
Lexmark attacked the argument that once the owner of a patented product, such as an ink cartridge, sells a product, the owner cannot later claim the product’s use or further sale is an infringement of its rights.
“This principle prevents patent owners from controlling goods after sale and interfering with your right to resell, tinker with and understand the things you own,” EFF said.
Lexmark warned consumers on the cartridges’ disposable packaging that the company maintains an ongoing claim to control its use. When Impression Products began refilling used cartridges and selling them, Lexmark sued.
Lower courts ruled in favor of Lexmark, but the Supreme Court reversed the company’s attempts to restrict the use of products after they have been purchased by consumers.
Chief Justice John Roberts wrote in that case: “Take a shop that restores and sells used cars. The business works because the shop can rest assured that, so long as those bringing in the cars own them, the shop is free to repair and resell those vehicles.
“That smooth flow of commerce would sputter if companies that make the thousands of parts that go into a vehicle could keep their patent rights after the first sale. Those companies might, for instance, restrict resale rights and sue the shop owner for patent infringement.
“And even if they refrained from imposing such restrictions, the very threat of patent liability would force the shop to invest in efforts to protect itself from hidden lawsuits.”
Harman explained why the windshield shape patent deserves to be a named “Stupid Patent of the Month.”
“Unlike utility patents, design patents have only one claim and usually have little or no written description. The patent only covers the non-functional design of a certain product. But design and utility patents are alike in an important way: both are intended to reward novelty. According to U.S. law, the Patent Office should issue design patents only for sufficiently new and original designs. By that test alone, it’s easy to see that the windshield patent should never have been issued.”
So the question is why Ford demanded a patent on a windshield shape.
“One possible reason is that it’s the automotive industry’s latest attempt to control the market for repair. If the shape of your windshield is patented by Ford, then no one else can replace it without risking costly patent litigation,” the commentary explained.
EFF said it’s not the first time such a concept has been evident at Ford.
“In 2015, it sued the manufacturer of an independent diagnostics tool under Section 1201 of the Digital Millennium Copyright Act, the infamous law that makes it illegal to circumvent digital locks on products you own. Later in 2015, the Librarian of Congress granted an exception to 1201 for some forms of auto repair, but manufacturers have continued to seek out creative ways to close out the market, whether it’s through copyright, contract clauses, or patents,” EFF wrote.
Ford’s patent, No. D786, 157S, credits “inventors” of the shape of the windshield. And it gives seven illustrations of the view of the “new design.”
EFF filed numerous arguments in the Lexmark case, arguing consumers need to be assured that when they purchase a product that they own it, can repair it and even resell it.