A court in the Netherlands says the sale of replacement ink cartridges is permitted, even if the cartridges relate to an essential part of a patented invention.
The Court of Appeal at the Hague ruled in favor of Digital Revolution in a case brought on by HP.
According to Lexology, the court ruled the user of a printer “has an implied license to use the printer in a normal, well-functioning way, which includes the use of compatibles, provided that there is no protection for the cartridge itself.”
However, in practice, this ruling may have limited consequences, as the court also declared the result could be different if the consumer agrees to certain conditions at the time of purchasing the printer.
HP originally accused Digital Revolution of breaching its patent EP 2 170 617 (“EP 617”), “because all elements of claims 1 and 2 were present in the cartridges offered by Digital Revolution.” This was rejected by the District Court of The Hague, because it found the claims to be invalid.
Lexology further noted, “In a later stage of the proceedings HP also argued indirect infringement of claim 7. This was also dismissed by the Court, because this additional claim was filed too late in the proceedings in violation of the principle of due process.” They continued, “In the appeal proceedings, HP again argued direct and indirect infringement. The appeal on the grounds of direct infringement was rejected by the Court of Appeal, because the Court found claims 2-6 and 13 of EP 617 to be invalid. “
Digital Revolution argued it does not offer or deliver cartridges to “anyone other than those authorized under the terms of Articles 55 to 60 (thus licensed) to apply the patented invention” as required by Article 73 DPA. The court agreed.
The case is expected to go before the Dutch Supreme Court.