Tricia Judge, Executive Director of the IITC
The International Imaging Technology Council (IITC) filed a friend-of-the-court brief in the USA on behalf of Ink Technologies Printer Supplies, and has the support of automotive remanufacturer associations.
The case at the US Court of Appeals for the Federal Circuit between Lexmark and Ink Technologies Printer Supplies is said by the IITC to concern “whether a manufacturer of original computer printers and consumable supplies can impose a patent license on new cartridge buyers to thwart competition from remanufactured, used laser toner cartridges”, which ties into the principle of patent “exhaustion” in patent law, otherwise known as “first-sale doctrine”.
The first-sale doctrine saw a major ruling in 2013 that The Recycler noted at the time would “prevent copyright owners from stopping imports and reselling of content sold abroad, which will have major implications for remanufacturing in the USA”, and this latest case also argues the remanufacturers’ case that “a patent owner who authorises the sale of a patent product cannot impose post-sale patent restrictions on use or disposition of the product” after sale.
The IITC filed its friend-of-the-court brief on 19 November, and stated that this is the fourth such brief it’s filed “in support of free trade in imaging supplies”, with three filed at the Supreme Court and available to view at www.i-itc.org. One of these was a case in 2008 involving Quanta Computer, Inc. and LG Electronics, in which the IITC and two automotive industry remanufacturing associations submitted briefs to support Quanta.
The IITC noted that Lexmark has “continued to label its toner cartridges” with a “patent license” that claims to “prevent purchasers from having the cartridge remanufactured or recycled by anyone but Lexmark”, with the OEM said to have “sued dozens” of remanufacturers for infringement. Since the Quanta ruling however, two district courts have sided with remanufacturers, and this is why the Lexmark case is now at the appeals court, as Lexmark has appealed against the decisions.
In its brief, the IITC stated that it “opposes any resurrection of the ‘conditional sales’ cases discredited by Quanta, and reaffirm[s] that otherwise lawful remanufacture cannot be thwarted by post-sale license conditions”. Policy arguments are also included that cover what remanufacturing does, how it contributes to the US economy and job market, and environmental advantages, and it concludes that “Lexmark’s interpretation of the law is a threat to the consumer’s right to repair its property, and promotes anti-competitive behaviour”.
The two automotive associations that joined the brief are the Automotive Aftermarket Industry Association and the Automotive Parts Remanufacturer Association, who joined as the case has “serious import for all remanufacturing industries”. In turn, the Auto Care Association’s Senior Vice President for Regulatory and Legislative Affairs, Aaron Lowe, commented that “while the case in question relates to print cartridges, a failure to reaffirm the principle of patent exhaustion in this case could jeopardise the ability of Auto Care Association members to remanufacture and distribute remanufactured auto parts as well.
“The availability of remanufactured parts reduces the use of raw materials and provides an effective and affordable replacement option for car owners in the United States”. Finally, IITC Executive Director Tricia Judge stated that it “wants decision makers at all levels of government to know about the importance of our industry. These briefs convince judges of the importance of a fair and open marketplace for imaging supplies”.