Author: Viscount James Bryce
Author: Frederic William Maitland
Nos. XIII, XIV. 1565. Sept. 17. Two licenses to Wm. Humfry and Christopher Shutz to dig (1) for the Lapis Calaminaris, the manufacture of brass and iron wire and battery wares, (2) for tin, lead, and other ores. These grants covered geographically those parts of England not included in Houghstetter’s patents and the Alum patent of De Vos. Calamine or zinc carbonate is an essential in the manufacture of latten or brass, which it was proposed to use in casting ordnance (S. P. Dom. Eliz. vol. 8, No. 14). The mineral was discovered in Somersetshire in 1566, and the first true brass made by the new process was exhibited in 1568. The patentees also erected at Tintern the first mill for drawing wire for use in wool-carding. In 1568 the Company was incorporated by Charter as the ‘Company of the Mineral and Battery Works,’ and remained under practically the same management as that of the Society of the Mines Royal (Stringer, Opera Mineralia Explicata). In 1574, and again in 1581, the assignees of the patent obtained an injunction against several owners of lead mines in Derbyshire for using certain methods of roasting lead ores in a furnace worked by the foot blast and other instruments invented by Humphrey after the date of his patent. The Court of Exchequer ordered models to be made, and after repeated adjournments a Commission was appointed to investigate ‘the using of furnaces and syves for the getting, cleansing, and melting of leade Ower at Mendype, and the usage and manner of the syve’ (Exchequer Decrees and Orders). The depositions in this case are still preserved, but it is impossible to trace the history of the case to its completion. Coke informs us that as regards the use of the sieve, the patent was not upheld on the ground of prior user at Mendip. It is a peculiarity of the grant that it covered all subsequent inventions of the patentees in this particular branch of metallurgy. The hearth was invented after the date of the patent, and one of the questions to be decided was whether a subsequent invention could be covered by letters patent or no. See also Hyde Price, pp. 55-60.
So what does this have to do with Planned Obsolescence, Ethical E-Waste, Right To Repair, etc.? Wire patent law was instrumental in the establishment of "first use principle". And I'm going to try to explain it very simply, avoiding the weeds of individual inventions tangential to what cannot be patented.
1. Metal ore mining - not copyright protected, not patented.
There may be individual methods and machines, but as my failed 2006 patent for recycled gold certification attests, you cannot patent counting stuff that people have done for eons. Therefore, protecting a mining investment is - largely - a matter of scale.
Today the industrial mining giants are too big to compete with. They protect their barriers to competition with massive billion dollar land deals in countries around the world. Largely, they are big enough to bully smaller nations into adapting the USA General Mining Act terms - which means no share of royalties on extracted ores. There exist no metal recyclers who come close to competing at that scale, because metal mining is collosal in every way thinkable. They literally wipe out mountains for veins of ore that are less than 2% metal.
Primary Metal Smelters are also huge, and owned by the mining companies. There may be patents on some machines and processes, but the fact that titanium requires titanic investment to refine is barrier enough to copycats. But once that titanium is extracted, refined, and put into a product - like titanium wire - anyone can collect that wire and reuse or recycle it... in part due to the USA patent laws of the 1860s. King Copper industry cannot sue the blacksmiths for remelting (recycling) metal... so there were a lot more recycling village blacksmiths (or titanium smiths) than there are mining conglomerates.
Stick figure man mining. Stick figure man smelting. Stick figure person smithing.
2. Metal products.
Once the metal giants or village blacksmith recyclers have entered the trade in metals, the tech sector had to be very strict in applying for patents of unique inventions using that metal. And as explained earlier, wire making for wool baling and cotton baling was one of the earliest patents - and in the USA, one of the earliest patent lawsuits.
Say a company like "New England Wire and Cable Company" of Danny Devito's 1991 "Other Peoples Money" flick (a gem panned by RottenTomatoes but understood as visionary by me and Roger Ebert) had a patent on making wire in the 1800s. Lets say that their New England mill made three wire products, at great profit... the Tech Sector of the 1860s, making hay (or thin as hay) from the subsidized (even then) metal mining of the period (GMA 1872).
- Copper wire for telegraphs (expensive raw material, highly recycled)
- Baling wire
- Barbed wire
Copper is expensive in its own right. But "Number 8" steel baling wire is less valuable for recyclers. Interestingly, the invention of barbed wire was a boon to the number 8 steel wire makers of the 1800s, because it made enormous cattle (and sheep) ranches more affordable to contain.
The genius (patented!) of taking the ordinary steel baling wire and cutting it into barbed wire (twisting the ties into painful sharp "barbs" that could contain herds of cattle known to bust apart more expensive wooden fences) was the subject of six patents during the mid 19th century... and several lawsuits creating several legal precedents... involving a monopolist named John Warne Gates, who played a role in consolidating barbed wire companies, and became a labelled "robber baron". Joseph Glidden, another adapter of barbed wire patents, was the center of one of the most renowned Supreme Court patent cases. But the major "point" of barbed wire patents was that it created multi-millionaires.
The "Big Four" in barbed wire were Joseph Glidden, Jacob Haish, Charles Francis Washburn, and Isaac L. Ellwood.[15]
So for the purpose of this essay, #2 baling wire is made with cheaper metal, but patent on wire would have been extinguished by the end of Queen Elizabeth's reign. But #3 barbed wire took the same material and "added a twist"... with a patent. Gates and Glidden were part of a "roll up", or "merger and acquisition" of various barbed wire patent holders. Encyclopedia.com explains how Washburn and Moen consolidated these patents to form a monopoly by 1880.
Washburn and Moen Manufacturing Company aggressively sought to limit competition by buying or claiming patents on all aspects of the industry. Several innovative farmers contested their attempts, but legal disputes were largely settled by an 1880 court decision that supported the company's monopoly.
Stick figure person creates wire. Simple millionaire.
Stick figure person creates "barbs" in wire. Billionaire robber baron.
3. Bootleggers
The term "bootlegger" originated with cowboys who hid flasks of liquor in their cowboy boots, and originates around the same time as developments of barbed wire patents.
In 1850, The Supreme Court ruled in Wilson v. Simpson that once you buy equipment, the patent holder has received compensation - and presumably a profit - and is made whole even if you extend the life of the device by repairing it.
The proof in the case is, that one of Woodworth’s machines, properly made, will last in use for several years, but that its cutting-knives will wear out and must be replaced at least every sixty or ninety days. The right to replace them was a part of the invention transferred to the assignee at the time he bought it, without which his purchase would have been useless to him, except for sixty or ninety days after a machine had been put in use. . . . [W]e do not think that the defendants in this case, from having replaced cutter-knives in their machines, have been using them in fraud of the law, or in violation of the rights of the [inventor]. Wilson v. Simpson, 50 U.S. (9 How.) 109 (1850).
In 1873, the US Supreme Court upheld what is known as the patent exhaustion doctrine. The reasoning by the majority court was simple.
[T]he sale by a person who has the full right to make, sell, and use . . . a machine carries with it the right to the use of that machine to the full extent to which it can be used in point of time. . . . [I]n the essential nature of things, when the patentee, or the person having his rights, sells a machine or instrument whose sole value is in its use, he receives the consideration for its use and he parts with the right to restrict that use. The article, in the language of the Court, passes without the limit of the monopoly. [citation omitted] That is to say the patentee or his assignee having in the act of sale received all the royalty or consideration which he claims for the use of his invention in that particular machine or instrument, it is open to the use of the purchaser without further restriction on account of the monopoly of the patentees.[5]
Whenever the company trying to sue you for repairing and reselling the thing you bought has already received consideration - all their costs and profits - the company has no claim of injury against a third user, or cause to expect that third user to pay them again for the same patent. To rule otherwise, the original Massachusetts Circuit Court stated, would make secondhand trade and commerce generally impossible.
When a patented product passes lawfully into the hands of a purchaser without condition or restriction, it is no longer within the monopoly or under the protection of the patent act, but outside of it. ...It is clear that by such a sale the purchaser acquires an absolute title to the manufactured product which is the subject of a patent, and may deal with It in the same manner as if dealing with any other kind of property. He may use it, repair it, Improve upon it, or sell it. Subsequent purchasers acquire the same rights as the seller had, and may do with the article, or its materials, whatever the first purchaser could have lawfully done if he had not parted with the title.[3]
So tying these in to the cotton wire bale (cheap product #2) , the court in the same ruling noted that once the cotton bale is cut, that the wire bands are scrap metal because they cannot be used again to re-bale another load of cotton.
So the miner/refiner of metals has sold it to New England Wire and Cable, New England Wire and Cable has sold it to the cotton baler, the cotton baler transferred the bale to a textile mill, and the textile mill sold the scrap wire to a recycler... who sells it for the best price.
Turns out, that best price might be offered by a refurbished who ties the short pieces of wire together with a twist, creating a competitor to New England Wire and Cable's added value, patented, barbed wire.
Stick figure person twists cut scrap bale wire to make barbed wire. Simple millionaire.
So the courts are now set to battle the "patent exhaustion principle" which was based on the fact that the patent owner had sold and received compensation for what they sold, and "right to repair and resell", vs. using secondhand parts to make a new item that competes with the sale of a different patent.
One the one hand, the simple fact that a new device is made from recycled rather than mined raw material would certainly not allow someone to infringe a patent via a claim that only virgin raw material content can be patented. That would be absurd.
Equally absurd would be if the farmer who bought #2 wire and cut it himself was prevented from reuseing what he had purchased as barbed wire. New England Wire and Cable can't sell #2 simple steel wire and state that you can use it this way but not that way. Wire is designed to be cut, twisting ends together can make a barb. To say otherwise would mean LG might say I cannot plug my TV display screen into a Roku without LG's permission.
Trying to extend the patent two third parties (scrap collectors) and fourth parties (people who buy cut wire from scrap collectors to make their own barbed wire), in my opinion, would violate the simple reasoning behind the "patent exhaustion" principle - that if a seller hasn't been injured, that it's not worth the cost to society to officiate how things are reused, repaired, resold. Warranty violation shenanigans are already illegal, we can just add "Right to Repair" if you insist (though I'd prefer that to be found a right that already exists, and think there's a risk to introducing laws that imply a "repair" of our rights is necessary).
Asking our court system to police this type of ingenuity is far more cumbersome, expensive, and subject to frivolous claims against small scale reuse than the Original Equipment Manufacturer's other obvious remedy - one Robber Barons have used successfully in the past. Buy the refurbisher, employ her/him, or go into takeback and value added yourself.
That is what Catepillar did with Asian remanufacturing, what Cummins Motor does with engine blocks, and after decades of frivolous "killer chips" and "Lexmark paper disclaimers" and lawsuits and crooked deals with China EPA, that Brother, Lexmark, HP and others came around to the obvious... Ford Motor Company dealers buy back used cars, they don't try to get courts to weigh in on your rights to resell your used cars.
ALL THE INK AND TONER CARTRIDGE MANUFACTURERS NOW BUY BACK EMPTY CARTRIDGES, AND PARTICIPATE IN THE REUSE MARKET.
or
LEASE YOUR PRINTING EQUIPMENT INSTEAD OF MAKING ALL THE PROFIT UP FRONT.
A lazy simpleton patent holder who doesn't want to take back their cut baling wire to make cheap barbed wire (or remelt it for recycled content, if they so prefer) is going the way of the buggy whip (nod to Danny Devito's speech in "Other Peoples Money"). It's a failing strategy to denigrate independents or threaten to sue village blacksmiths. If there are so many of your products out there (like 17" CRT monitors 2 decades ago) that a refurbisher can economically scale:
1) It's probably been 17 years (end of patent)
2) You probably made a ton of money already
3) The scaleable SKD factories are probably the same ones you already subcontract to - or those ones are the most able to compete against DIY infringers.
Either make enough money on your first sale to live off a patent for 17 years, or go into competition with the used, recycled, and secondhand market.
Clearly, patent law precedents from Queen Elizabeth's era didn't mean that if your axe breaks that you cannot buy a new handle except from the original manufacturer. Re-reading the Wikipedia articles on patent exhaustion (which I've done for over a decade), I see the mission creep of claims that there's a sneaky attempt to re-educate us.
The exhaustion doctrine, also referred to as the first sale doctrine,[1] is a U.S. common law patent doctrine that limits the extent to which patent holders can control an individual article of a patented product after a so-called authorized sale. Under the doctrine, once an authorized sale of a patented article occurs, the patent holder's exclusive rights to control the use and sale of that article are said to be "exhausted," and the purchaser is free to use or resell that article without further restraint from patent law. However, under the repair and reconstruction doctrine, the patent owner retains the right to exclude purchasers of the articles from making the patented invention anew (i.e., making another article), unless it is specifically authorized by the patentee to do so.[2]
(My bold lettering)
The very footnote to cases like Aro Manufacturing Co. v. Convertible Top Replacement Co. shows that the patent attorneys trying to fight patent exhaustion - the "Make America Robber Baron Again", Planned Obsolescence League - want the courts to be bogged down by axe-handle repair cases. Of all groups of people, OEMs should realize the legal costs and the regulatory remedies demanded are the bane of the free market.
Who should have the burden of proof? By drafting a Right to Repair law, are we inadvertently accepting that the burden of proof is shifted to the consumer? Or should we just claim these rights steadfastly under precedent?
The patent trolling business has to retain the burden of proof, must prove to the court that the axe handle repair is "infringing reconstruction", and should pay the court costs if they are not successful. Otherwise, just go by Ford's example, get into the secondhand business and live with a mere billion dollars profits in the patent business, and put your legal money into buying back anything that can be scaled to cannibalize your markets.
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