Digital BW, The Print

A question for the legally knowledgeable:

Someone mentioned that Epson has to sue to keep their patents alive,  
otherwise a competitor like HP could come along and capitalize on  
their technology and prevail based on Epson's failure to get active  
and raise the issue.  Couldn't that same argument pertain to protect  
artists who have been using the cart technology for a number of years  
now?  When did Cone's Piezo system first come out?  More than ten  
years ago?  Granted, those carts weren't chipped.  But artists have  
established themselves and are making livelihoods using this  
technology having nothing to do with cart type or anything else other  
than ink different from or superior to anything Epson offered at the  
time, or even now.  Did Epson spring into action in a timely fashion  
and say wait a minute; you can't use those carts/materials?  Or did  
respectable and valuable businesses and artists become established  
for years, now to find their livelihoods and art threatened?   
Couldn't some case be made based on the length of time these  
practitioners have had, and based on the inherent value of what they do?

James

James Irelan wrote:
> 
> 
> A question for the legally knowledgeable:
> 
> Someone mentioned that Epson has to sue to keep their patents alive,
> otherwise a competitor like HP could come along and capitalize on
> their technology and prevail based on Epson's failure to get active
> and raise the issue.

I believe I made that point.  First of all, I'm not an attorney,
and I'm especially not an intellectual property attorney, so I
may be completely wrong, etc.  Talk to a real attorney for real
advice :-)

> Couldn't that same argument pertain to protect
> artists who have been using the cart technology for a number of years
> now?

Failure to defend intellectual property rights (patent, trademark,
copyright) can result in losing those rights.  This assumes that
some kind of intellectual property protection has been established;
something has to exist in order to be defended.

I think what you're asking is "Can't the artists that have been
putting non-Epson inks in cartridges for Epson printers claim that
Epson hasn't been defending Epson's patents?".

Sure, anyone can claim anything in court, of course.  However,
intellectual property law is very detailed.  If Epson fails to
defend a patent, that applies only to a specific patent.

 > When did Cone's Piezo system first come out? More than ten
> years ago? Granted, those carts weren't chipped. But artists have
> established themselves and are making livelihoods using this
> technology having nothing to do with cart type or anything else other
> than ink different from or superior to anything Epson offered at the
> time, or even now. Did Epson spring into action in a timely fashion
> and say wait a minute; you can't use those carts/materials?

I don't know.  It's possible that Epson didn't defend some patents
in a timely way, in which case it's possible that some patents could
be successfully challenged in court.  For example, Epson might not see
the value in defending patents for non-chipped carts, but vigorously
defend patents on chipped carts, in which case it is conceivable that
someone could successfully challenge Epson's patents on non-chipped
carts - but not chipped carts.

If the business really didn't have anything to do with cart-type,
then this is irrelevant; Epson would have no claim, but the business
*does* have to do with cart-type when carts are being sold.  If the
carts are protected by a patent, then the patent-holder has a claim.

 > Or did
> respectable and valuable businesses and artists become established
> for years, now to find their livelihoods and art threatened?

The short answer is "yes".

> Couldn't some case be made based on the length of time these
> practitioners have had, and based on the inherent value of what they do?

As I mention above, I'm sure some case could be made, but
there are two problems I see.  The first problem is that it's
not just a case, but potentially many cases to challenge each
specific patent; it's possible that someone could challenge the
patent(s) on non-chipped cartridges and win.  How much would that
help today?

The second problem is that someone has to make the case.  Someone
has to go to court and pay the attorneys, and that cost may be
much larger than the potential return even if successful.

I'm not arguing for or against anyone here.  I'm just expressing
intellectual property law as I superficially understand it.  Basically,
once someone holds a patent, it provides a very high level of
protection.


Dana

In a message dated 11/6/2007 11:14:46 A.M. Eastern Standard Time,  
james@... writes:

Couldn't  some case be made based on the length of time these  
practitioners  have had, and based on the inherent value of what they  do?

James



James:
This is a decision made by an international trade commission on patent  
protections. We as artists also have a stake in these decisions, and seek  
protection for our rights to art and intellectual property. We can't be  hypocritical 
about this issue. If the owner of a patent seeks to protect his  rights, and 
those rights are protected by law, or in this case, by agreements,  that is his 
right. 
 
Richard Massie



************************************** See what's new at http://www.aol.com


[Non-text portions of this message have been removed]

James,

You could be a lawyer as this is one of the affirmative defenses in
the large format case (CV No. 07-0896-ST) which is going on now in Oregon:

"23. On information and belief, such Purchasers have relied to their
detriment upon Plaintiffs' conduct and silence and reasonably believe
by virtue of Plaintiffs' conduct and silence, that such replacement
using competitive ink cartridges is permitted."

I do not know if it would help or not to communicate what you bring up
as fact but it is in line with one of their affirmative defenses, and
material witnesses are necessary. The lawyers which mounted this
defense on Oct 15 are:

Dennis P. Rawlinson, OSB No. 763028 
dennis.rawlinson@... 
Kieran J. Curley, OSB No. 012414 
kieran.curley@... 
Phone: (503) 224-5858 
Fax: (503) 224-0155 
 
Joel E. Lutzker 
joel.lutzker@... 
John C. Garces 
john.garces@... 
Leonard S. Sorgi 
leonard.sorgi@... 
SCHULTE ROTH & ZABEL, LLP 
919 Third Avenue 
New York, New York  10022 
Telephone: (212) 756-2000 
Facsimile: (212) 593-5955 
 
Attorneys for Defendants Linkyo Corp., 
Cartridges Are Us, Inc., and Printpal, Inc. 

Perhaps James you can communicate and let users know if they can be of
assistance to them. Incidentally, PiezographyBW for large format was
released in 2001. Desktop versions were released in April, 2000.




--- In DigitalBlackandWhiteThePrint@yahoogroups.com, James Irelan
<james@...> wrote:

>
> A question for the legally knowledgeable:
> 
> Someone mentioned that Epson has to sue to keep their patents alive,  
> otherwise a competitor like HP could come along and capitalize on  
> their technology and prevail based on Epson's failure to get active  
> and raise the issue.  Couldn't that same argument pertain to protect  
> artists who have been using the cart technology for a number of years  
> now?  When did Cone's Piezo system first come out?  More than ten  
> years ago?  Granted, those carts weren't chipped.  But artists have  
> established themselves and are making livelihoods using this  
> technology having nothing to do with cart type or anything else other  
> than ink different from or superior to anything Epson offered at the  
> time, or even now.  Did Epson spring into action in a timely fashion  
> and say wait a minute; you can't use those carts/materials?  Or did  
> respectable and valuable businesses and artists become established  
> for years, now to find their livelihoods and art threatened?   
> Couldn't some case be made based on the length of time these  
> practitioners have had, and based on the inherent value of what they do?
> 
> James
>