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Legal experts predict aftermarket victory in Lexmark case

November 17, 2015

Impression Products' Eric Smith. Credit: Krista Belcher

Impression Products’ Eric Smith. Credit: Krista Belcher

A law publication said that the US Federal Circuit is “leaning toward” the side of Impression Products in its on-going case against the OEM.

The article in the National Law Review compared the essence of the case to a patented popcorn tub which has to be returned to the manufacturer for recycling, and re-sold by them too, but “according to those in the refurbish/resell business, it’s just too much”.

The legal case began when Impression Products was named in an IP infringement case in October 2013 in the US District Court Southern District of Ohio (Cincinnati Division). The case referred to the “unlawful importation […] the sale for importation and/or the sale within the United States after importation” of a number of infringing remanufactured and cloned aftermarket cartridges.

Impression’s legal team moved to dismiss claims as well as overturn the Jazz Photo decision that impacts on patent exhaustion, or the “first-sale doctrine”. This was also influenced by the Supreme Court’s ruling in the Kirtsaeng case in 2013, which prevented copyright owners from stopping imports and reselling content sold abroad.

But now the National Law Review thinks that “in all, it seems the Federal Circuit is leaning toward patent exhaustion”. It concluded that “if the court over-turns the precedent, the previously-sharp patent sword you had for your [popcorn] tub may be worn to a nub.

“If not, the determination of what constitutes a valid and effective post-sale restriction, as opposed to a contract with the customer, may become a murky ground for new litigation.”

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