Consumer Rights at Center of Two Major Intellectual Property Cases
Consumer Rights at Center of Two Major Intellectual Property Cases
Consumer Rights at Center of Two Major Intellectual Property Cases

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    Last week, Public Knowledge filed two amicus curiae briefs in intellectual property cases before the Court of Appeals for the Federal Circuit, urging the court to consider the rights of consumers and the public. The cases are Lexmark v. Impression Products and In re Tam.

    The Lexmark case involves a patent infringement suit against printer toner cartridge refillers. The case asks whether a product manufacturer can launch a patent lawsuit against an item that was legally sold to a consumer, or if the legal sale “exhausts” patent rights in that item. The amicus brief, joined by the Electronic Frontier Foundation, Public Citizen, the Open Source Hardware Association and the Digital Right to Repair Coalition, argues that the patent rights are fully exhausted.

    The following may be attributed to Charles Duan, Director of the Patent Reform Project at Public Knowledge:

    “It was a perfectly normal day when John Q. Public went to the store. Putting things into his shopping basket, he expected he could use them, fix them if they broke, and sell them on eBay later. A perfectly normal day. Little did he expect the zombie hand of patent law to reach up and grab him by the throat.

    “But that is exactly what the product manufacturers want to do in the Lexmark case. Lexmark wants to use patent law — just like it has tried to use copyright law and section 1201 of the DMCA — to obstruct consumers who use lawfully purchased products in ways or places the manufacturer doesn’t happen to like. That’s a scary thought: that Lexmark or any other company could dictate how you use your stuff, even after you paid for it — as if it were controlling products from beyond the grave.

    “That is why Public Knowledge has joined with top-flight organizations in its brief: to defend consumer rights against these encroachments in wide ranging fields, from car repair to access to medicines. We are asking the Court of Appeals to state the simple fact that consumers own what they buy, and to put a stop to these attempts at undead patent power over consumer products, lest they infect the entire world with an apocalypse of anti-consumer licensing regimes.”

    The Tam case deals with a law that prevents registration of trademarks that are considered “disparaging,” and considers whether that law is a violation of freedom of speech under the First Amendment. Though this case involves a band named “The Slants,” it is this same law that is under fire in the Washington Redskins case. Public Knowledge was represented in this filing by the Juelsgaard Intellectual Property and Innovation Clinic at Stanford Law School.

    The following may be attributed to Sherwin Siy, Vice President of Legal Affairs at Public Knowledge:

    “This case demonstrates that intellectual property laws are free speech laws. In our brief, we want to make two points. First, we agree with Simon Tam that the First Amendment doesn’t let the government pick and choose which trademarks it will register based upon its judgment of what is and isn’t ‘disparaging.’

    “Second, we note that courts need to realize that, in granting a trademark registration, they risk burdening everyone’s speech — because enforcing a trademark gives the trademark holder the right to prevent others from speaking in particular ways. Because of this, there are still limits on what trademarks can and can’t be granted — those limits just can’t be drawn around questions of what some might consider offensive.”

    You may view both the Lexmark v. Impression Products and In re Tam briefs for more information.

    Members of the media may contact Communications Director Shiva Stella with inquiries, interview requests, or to join the Public Knowledge press list at or 405-249-9435.