ITC ruling upholds Epson cease and desist order against third-party carts

In a case filed by Epson against 24 aftermarket ink cartridge importers and resellers, the U.S.

International Trade Commission issued a Final Determination on Oct. 19 that all the ink cartridges

accused by Epson infringe one or more of the company's patents. As a result, the ITC issued a General

Exclusion Order that directs U.S. Customs to bar all imports of infringing cartridges and a Cease and

Desist Order that bars the named respondents from selling infringing cartridges.

 

The ruling outlined at http://www.rechargermag.com/articles/52277/ could have a potential impact on

the availibility of cartridges used by Piezography and MIS, among others. I know many here make their

living using these inksets, so I would suggest writing / contacting the US president regarding this issue.

 

That may seem like a bit of an over-reaction, but approval or limitation of ITC orders is at the sole

discretion of the president, following a sixty day review period.

 

You can email the president (actually the Office of Presidential Correspondence) at

president@whitehouse.gov

 

or post mail to:

 

President George W. Bush

The White House

1600 Pennsylvania Avenue NW

Washington, DC 20500

 

Earlier today Jon Cone posted this suggested text on the yahoo! Piezography user group, and offered

permission to post his statements elsewhere:

 

"So, if you think that the your welfare is affected by the ITC decision

or that competitive conditions will be affected, etc, you should quickly

write the President of the United States and reference this on both your

envelope and the letterhead:

 

RE: International Trade Commission 337 Investigation No. 337-TA-565

 

Please write the President. You have only a short time to act.

 

start it thus:

 

President George W. Bush

The White House

1600 Pennsylvania Avenue NW

Washington, DC 20500

 

[enter date here]

 

RE: International Trade Commission 337 Investigation No. 337-TA-565

 

Dear Mr. President,

 

I am writing to you concerning the October 19, 2007 decision by the

International Trade Commission concerning the Section 337 Investigation

in the Matter of Certain Ink Cartridges and Components Thereof (Inv. No.

337-TA-565). Their decision is now coming to you for your approval, of

which I hope you pause to reflect upon, and do not sign.

 

The ITC decision adversely affects me because...[ this is where you

write the because and you should speak of how it directly affects you or

your business.]

 

...and dont forget to sign it!"

 

This is a long-shot, but you can actually call the White House switchboard at 202-456-1414 if you'd

like to try to get the voicemail of Keith Hennessy, Deputy Assistant to the President for Economic Policy.

 

Also, give your congresspersons a ring.

Hate to tell you this but if a commission said that its a case of patent infringement than its a cut and dried as far as I'm concerned. Epson gets to stop the other inks. Patent laws are there for a reason. If this hurts other business than that's unfortunate.

I would no more try to weasel my way around patent infringements than I would copyright protections. Both of which serve to protect intellectual property.

It is unfortunate that Epson is moving closer to a closed system where you are forced to use its inks and cartridges. This is bad news for users of dedicated black and white inksets who are ill-served by the OEM products.

This is the USA, not China where things like this are ignored. Their idea, their patents, they

have rights for 17 years.

 

If you don`t like how Epson images monochrome, then you need to try another brand or

get the software that fixes the problem.

Its interesting that photographers want patents shut down; maybe ole Bush could then eliminate copyrights too? <BR><BR>If all patent laws are railroaded; then lets be fair and make all photos and movies not copyrightable; and extend the jackassery.<BR><BR> Why should a companies patents be allowed to be voided; and not copyrights too? Photographers on photo.net should take some basic business courses. If you want to whine and destroy the hard work of another's business; let the wrong ill thought spread to your wallet.<BR><BR> Maybe a gut wretching recession is in order. Why would one want to be involved with destroying patents?. Its a sad day that beginners whine and want another businesses LEGAL patents railroaded. Maybe the laid off printer workers will write the president and have photographers intellectual property neutered as revenge. <BR><BR>If you make a living selling bootleg illegal cartridges that should be not sold due to patent reasons then there is a basic moral issue here; one that should have been learned at an early age by a parent with a nice switch in a wood shed:). Its abit weird to want intellectual property neutered to sell ill goods. It destroys the moat that the engineers built with sweat and toil; the profits used to survive another product release. <BR><BR>Destroying intellectual property is not what the President should be called upon to do; its insulting. What in Gods name is the purpose of wanting another legitimate businesses intellectual property voided; this sickness will then spread and other legal areas will attacked. May those who attack legal patents see their photos legally taken away from them; then the fun begins. The loss of personal income might sink in.<BR><BR> Its only a recession if you get the other chap laid off; but a depression if you loose you job.

I can't think of a faster way to stuff a $2000 printhead than to use 3rd party inks.

There's no question that geniuses with good luck and MIS or Piezo print better than I do with Epson OEM and QTR driver.

 

And there's no question that many fall by the wayside with clogging from those third party inks, perhaps due to humidity or bad luck having to do with individual machine quirks. I destroyed one 2200 with third party, made some nice prints along the way.

 

Happily I had another 2200, pure OEM, that in several years has only required a couple of cleaning cycles...merely 5 minutes. And happily I've learned through observation of the prints of others that paper selection is more important than ink, and that personal skill (which is taking me time) and original photography trump everything else.

 

Some like to bash Epson and many hate to pay anything at all for ink (or for beer).

 

An ignorant European court penalized Epson for selling carts that prevented clogging by retaining a little ink. The beer mooches loved it, and went on to beg for cigarettes.

 

Me, I think Epson, like IBM and Apple, and George Eastman for that matter, has given us a magnificent mixed blessing. I wish none of them did it, but the genie is out of the bottle.

The law at issue in this ruling reads (in part):

 

"Section 19 U.S.C. 1337. Unfair practices in import trade

 

(d) Exclusion of articles from entry

 

(1) If the Commission determines. that there is a violation of this section, it shall direct

that the articles concerned, imported by any person violating the provision of this section,

be excluded from entry into the United States, unless,after considering the effect of such

exclusion upon the public health and welfare, competitive conditions in the United States

economy, the production of like or directly competitive articles in the United States, and

United States consumers, it finds that such articles should not be excluded from entry. ."

 

This law does allow the ITC (and, ultimately, the president) to consider the impact of any

such ban on businesses and consumers. I suggest that we bring knowledge of these

potential impacts to those officials who will determine whether or not this violation will

result in an import exclusion. Much like a legislative action, an ITC order must be

approved by the president before it is enacted as policy.

 

Therefore, those concerned about "the effect of such exclusion upon the public health

and welfare, competitive conditions in the United States economy, the production of like or

directly competitive articles in the United States, and United States consumers..." should

contact the president and relevant advisers to voice their thoughts.

When a large company like Epson innovates so well (for us community of photographers and digital darkroom printers) they are then afforded the protection of their invention by patents and copyright protection. I am very happy Epson won.

If Epson innovated so well and provides such a superior product why are people trying to avoid using its inks and cartridges?

If third-party works as poorly as some of the above posters believe, why would Epson need to lock out competitors from their hardware instead of letting the market work?

 

Not that long ago IBM and Nintendo lost anti-trust suits for similar restrictions.

The imitations do not have the cost of R&D EPSON has to bear. That is why they are cheaper. It is easier to emulate than to innovate.

Paul Roark, a former FTC official himself, offered some thoughts on the matter earlier

today, as well as his permission to repost them:

 

"Writing letters that alert the politicians to a large constituency that thinks this action will

harm competition might be effective. The letters should key into this section (of the U.S.C.

1337 that I cited above) and the fact that competition in ink resale market will be

adversely affected by an exclusion order.

 

The letters should vary their wording so that they are not identified as a mass mailing.

 

Letters to agencies get more attention if they are via a congressional (House or Senate

representative. I'm not sure if anything can get the attention of this White House.

 

The issues are very complex. Don't challenge the law or the patents. Use them to your

effect.

 

The *NET* competitive effect is the issue. "Competition," not the survival of a competitor is

the issue. Epson's competition with HP and Canon is included.

 

Prohibitions against "tying" agreements, in the past (IBM punch card case), would have

knocked this down, but "modern" (heavily influenced by Chicago School economics

antitrust does not trust "per se" theories and looks at a "bigger" ("rule of reason") picture

of competition. In theory this is great, but in practice, the issues become so complex that

the side with the most money to hire the best lawyers (and lobbyists, etc.) often has a

huge advantage.

 

Healthy horizontal competition among HP, Canon and Epson is probably a major part of

the big picture the policy makers are hearing about, and it's very intense. Did you notice

Kodak is explicitly competing on ink price?

 

"Below cost" sales prohibitions might have in the past stopped the loss-leader character of

competition that has developed. But that approach is also discredited.

 

We can't really expect to be able to free ride on below cost sales of Epson printers.

 

One pro-competitive argument that is being increasingly getting attention is that

innovation is a factor to be considered.

 

Even if Epson succeeds in keeping out most carts, I think the CIS/CFS business will survive,

and large format cartridge refilling will probably remain viable. Third party ink sales will

continue, but maybe not as well in some markets as today"

"If Epson innovated so well and provides such a superior product why are people trying to avoid using its inks and cartridges?"

 

Some people are CHEAPSKATES. Some people will waste time and energy to save two dollars because they're nuts?. No other answer fits.

 

I have never seen "people" avoiding Epson's K3 inks because they were inferior. Only cheapskates seeking gold at the end of the rainbow think emulators have a "better product."

Many of the cartridges at issue, such as the <a href="http://shopping.netsuite.com/s.nl/c.

362672/sc.15/category.1260/.f" >Piezography Splittone K7 inkset</a> that i use, are

significantly more expensive than the <a href="http://www.epson.com/cgi-bin/Store/

BuyInkResults.jsp?BV_UseBVCookie=yes&oid=53540919" >Epson OEM cartridges</a>.

Musings: Cannot the third parties could pay Epson for the use of their patents, if Epson agrees? Perhaps there's light down that tunnel. Perhaps not. In any event, Congress established the policy of the country to protect patents and foster innovation. Nobody is forced to use Epson printers. Maybe Canon and others will benefit.

I'm glad, too, that Epson's patents were upheld. But, that said, I wonder how long it will be

before Canon, Nikon etc, decide to push the point that their lens couplings were 'designed

by them, legally, no one should be able to make aftermarket lenses to fit our bodies.' Think

Vivitar and Sunpack flash feet that fit SLR's-Tamron and Sigma fighting court battles to stay

in business. I'm not saying it'll go there, but is the genii not out of the bottle?

<i>This is the USA, not China where things like this are ignored. Their idea, their patents, they have rights for 17 years.</i><p>Patents in the US are good for 20 years. The 17 year number is old and applies to patents granted before 1995, and even then, it can be 20 years, depending on filing date. This is easily verified in any documentation on US patents.

This is absurd. Epson has developed the printer technology but third parties use their own ink formulations. Why would these violate Epson patents? They provide consumers more options, e.g. K7 inks which are unavailable through Epson. Epson should price their printers higher and not fund their printer development from the ink cartridges.

 

Epson would have us buy a separate printer for black and white and for color. That's nice. And the absurdly high cost of Epson inks is also remarkable.

 

Perhaps it is time to buy my black and white printer from another brand. Epson must have made gazillions of money from their ink already. Enough of it!

 

Yes, a K3 printer is nice but they're expensive considering that the warranty period is a typical average of the lifetime of an Epson printer. I'm using my 6th Epson by the way. Talk about e-waste!

Ilkka, this ruling does not concern third-party ink formulations, but rather the cartridges that

are utilized for supplying that ink. Specifically, all desktop cartridges which have a chip

parallel to the front of the cartridge (but not the chip itself), the port through which ink feeds

into the ink stem of the printer, and the device which secures the cartridge in the printer, as

well as cartridges with foam or a bladder/valve, plus a handful of other mechanisms within

the cartridges.