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from the think-of-the-poor-rent-seeking-monopolists dept.
Score one for the little guys. In a precedent-setting decision handed down this morning, the U.S. Supreme Court ruled that a company's patent rights are forfeited once they sell an item to a consumer under the "first sale" doctrine. This idea was central to Impression Products, Inc. v Lexmark Int'l, Inc. and is a major blow to companies that sell their printers for (relatively) low prices and then recoup any losses on the sale of expensive ink and toner cartridges. [...]
"Extending the patent rights beyond the first sale would clog the channels of commerce, with little benefit from the extra control that the patentees retain," wrote Chief Justice John Roberts. In his opinion, Chief Justice Roberts contended that Lexmark's heavy-handed approach to discouraging cartridge remanufacturers only emboldened them to find new and innovative ways to circumvent the company's defenses.
A patent holder that restricts the reuse or resale of its printer ink cartridges can't invoke patent law against a remanufacturing company that violates the restriction, the U.S. Supreme Court ruled on Tuesday.
The court ruled that Lexmark International's patent rights are exhausted with its first sale of the cartridges, despite restrictions it tried to impose.
Chief Justice John G. Roberts Jr. wrote the opinion (PDF), joined in full by six justices. Justice Neil M. Gorsuch didn't participate in the case.
Additional coverage by Consumerist.
Doesn't the Supreme Court care how many lawyers this will put out of work? Think of the Lawyers! And the effect on commerce for those selling ink at $8,000 a gallon.
(Score: 0) by Anonymous Coward on Tuesday May 30 2017, @10:39PM (16 children)
So does this mean a drug company can not use patents to prevent a drug sold cheaper elsewhere from being imported into the US?
They still have their little buddies at the FDA, but maybe we could get a law to permit importing already FDA approved medicines from countries that have better health stats than ours.
(Score: 2) by kaszz on Tuesday May 30 2017, @10:42PM (2 children)
The question then becomes. Does first-sale-doctrine apply to the sale elsewhere or does it apply when imported into the jurisdiction of United States?
(Score: 0) by Anonymous Coward on Tuesday May 30 2017, @11:48PM
The point was that the ruling settled that.
A willing sale in another country exhausts the patent rights in this country.
(Score: 2) by jelizondo on Wednesday May 31 2017, @02:43AM
Nope. The ruling is only for products manufactured in the U.S. and sold abroad. If said product is manufactured by a third-party abroad under a license from the patent-holder, this ruling has no effect on that contractual relationship; meaning, it does not apply and the patent-holder can withhold permission to import it to the U.S.
If your medication was actually manufactured in the U.S. and sold internationally, you can indeed import it from abroad without being sued for “patent infringement” but other barriers might exist, i.e., Customs. (Not the FDA as this medication, by definition, has already been approved for sale in the U.S.)
But don’t let me go there, the prices paid for medication in the good ol’ U.S. of A. are totally outrageous. (The usual alt-right soylentils will point out the ‘free market’ will take care of it, just after I die I suspect.)
(Score: 2) by Justin Case on Tuesday May 30 2017, @10:54PM (12 children)
The FDA has the USA balls in a death-grip, which is why my wife's recent prescription had an alleged retail price of $4000. (I know there are plenty of worse examples.) Meanwhile Tylenol costs less than $10 a bottle.
FDA should have no more power than granting an "FDA seal of approval" sticker on any product that desires one. They can still go through their 10 years of testing and everything else if they want.
You the buyer can choose product A with the sticker, or product B without it.
Yeah I know some of you lay awake at night quaking at the thought somebody might package up poison and sell it as platinum. OK so just don't buy stuff without the lovely FDA sticker, mmmkay?
(Score: 5, Informative) by linuxrocks123 on Wednesday May 31 2017, @12:01AM (11 children)
Companies probably wouldn't do that on purpose. However, in an industry without an enforced culture of safety, bad things can happen:
In the 1930s, Sulfanilamide was a well-known, safe antibiotic. S.E. Massengill saw a demand for a liquid preparation instead of the normal powdered one, since children like liquid medication better and often need antibiotics, and the company ordered its chemist to find a substance it would dissolve in. He found it dissolved really well in ANTIFREEZE! So he added some raspberry flavoring -- you know, children like flavor -- and BOOM, it was on the market! Tasty, effective raspberry medicine for children! YAY FOR RAPID FREE MARKET INNOVATION!
https://en.wikipedia.org/wiki/Elixir_sulfanilamide [wikipedia.org]
Guess Watkins didn't realize how awesome the free market is. Those 100+ children should have just done better research before taking the medicine. And the S.E. Massengill brand lost a ton of value, so their agonizingly painful deaths from kidney failure weren't in vain. Caveat emptor. Free market rulez.
This incident is literally why we have the FDA.
(Score: 2) by Justin Case on Wednesday May 31 2017, @12:26AM (9 children)
Calm down. I'm not machine-gunning babies. I'm suggesting people could have a choice. If you fear the above scenario playing out again, choose the product with the FDA approved sticker. What's so hard about that?
(Score: 5, Insightful) by frojack on Wednesday May 31 2017, @01:10AM
We DO have a choice. And we have collectively chosen to hire some people who work for all of us to prevent crap "medicine" from being pedaled by as useful and safe when it may be neither
Nobody is holding YOU to that choice. You can buy all the components and concoct your own formula and try it out on your wife.
We've just all chosen to set up barriers to prevent you from selling to our unsuspecting children. We call it the FDA or the EMA or Rozdravnadzor depending on where you live.
Its not a perfect system. But its better than what you propose. We've had what you propose before. It didn't work.
No, you are mistaken. I've always had this sig.
(Score: 2) by linuxrocks123 on Wednesday May 31 2017, @01:13AM
Most people don't have the expert knowledge necessary to make informed choices about the safety of drugs. Some will be tempted by the lower price on the unsafe drug into making a poor decision. Some will be financially forced by their insurance plan into buying the unsafe drug. Some, particularly children, will have no choice whatsoever as to which drug they take.
This happened more than once already. Some other examples are the 60s thalidomide incidents in Europe and the modern day cosmetic contact lense incidents. What makes you think it won't happen again, or do just not care if it does?
(Score: 4, Insightful) by Gaaark on Wednesday May 31 2017, @02:40AM (6 children)
You're a single father who has a sick kid and you rush to the store. You do not earn a lot of money, and you want to get home to your kid.
You look, and side by side the two drugs look the same, but one is cheaper, so you grab it (not even stopping to look for an FDA sticker).
You rush home in order to KILL YOUR CHILD!
--- Please remind me if I haven't been civil to you: I'm channeling MDC. ---Gaaark 2.0 ---
(Score: 2) by Justin Case on Wednesday May 31 2017, @04:29PM (5 children)
In your scenario the person checked the price. Why? Because he cared about it. But he didn't check for the FDA sticker. WHY???
Good god people, you'd think our watchful guardian angels from the government are the only thing saving us minute by minute from grisly death because they are so smart and we are so helpless we can't even look for a sticker.
If you want your vitamin-C to be certified by someone, look for a certification. From FDA, if that's who you trust. From someone else, if you trust them more. Choice.
(Score: 2) by Gaaark on Wednesday May 31 2017, @08:59PM (3 children)
You've never lost your keys, or the remote or your glasses?
People under stress don't think properly: your kid is sick, you grab something (it may not even BE the cheapest). Should there REALLY be something on the market that could kill a kid?
Is that who you are???
--- Please remind me if I haven't been civil to you: I'm channeling MDC. ---Gaaark 2.0 ---
(Score: 2) by Justin Case on Wednesday May 31 2017, @09:24PM (2 children)
No, cars should not be on the market because they might kill kids.
Idiot.
(Score: 2) by Gaaark on Wednesday May 31 2017, @09:57PM (1 child)
Wait! That's your come back? Cars are the same as poison marketed as safe?
Good one!
Idiot.
--- Please remind me if I haven't been civil to you: I'm channeling MDC. ---Gaaark 2.0 ---
(Score: 2) by linuxrocks123 on Wednesday May 31 2017, @10:22PM
Don't take it personally, and don't descend to his level. The point of arguing with people like him isn't to change his mind -- I mean, sometimes it is, but usually people like him are too far gone to help. The point is to demonstrate to less blinkered people that his philosophy and reasoning have no merit. Name calling doesn't help us do that.
(Score: 2) by linuxrocks123 on Wednesday May 31 2017, @10:17PM
We had stickers in 1937. People trusted the S.E. Massengill brand. They bought the Elixir Sulfanilamide from a brand they trusted, and they and their children died.
Either stickers don't work for drug safety, or you're okay with people who trust the wrong stickers -- and their children, upon whom you can impute no negligence -- dying from preventable causes. Which is it?
(Score: 0) by Anonymous Coward on Wednesday May 31 2017, @12:30AM
https://en.wikipedia.org/wiki/Polio_vaccine [wikipedia.org]