There is a surprisingly non-partisan case up in the United States Supreme Court right now,
Impression Products v Lexmark, the Supreme Court is considering whether Impression Products has the right to refill and sell patented Lexmark inkjet printer cartridges. The general rule in patents is once a company with a patent sells a covered product, the sold product is not subject to additional restrictions by the patent holder.
At issue is a judicially-crafted narrow exception for products that were sold with an explicit contractual restriction. Lextmark claims that its cartridges are sold with a restriction on resell on the outer shrinkwrap of the cartridges that is supposedly supported by a 20% discount.
The Supreme Court is supposedly having a tough time deciding this case. They should let me write the opinion. Here’s my rough draft:
“Lexmark’s position is complete bullshit. Th. The e shrinkwrapped contract does not represent true assent. The consideration is illusory. Even if the contract not to sell was valid, restrictions on sale of printer cartridges violate the very core principles of our patent system, so to the extent that the exception is valid at all, which may need to be considered in another case, it can’t be stretched to this product. ”