Compatible ink cartridges are being removed by Epson under eBay's Verified Rights Owner programme.
Epson have contacted a number of resellers on eBay warning them to remove their listings. They have followed up by directly removing the items from eBay, as members of the “VeRO” programme.
Epson enjoy a special trusted status on eBay under their VeRO programme. VeRO allows rightsholders to remove listings that they “believe may infringe on their intellectual property rights”. eBay don’t appear to require an actual proof of infringement, for example a decision of the court, but accept Epson’s word as a trusted company.
The policy for patent takedowns only applies in the EU. This means that Epson compatible cartridges in the US are not affected.
Epson are alleging that certain compatible ink cartridges infringe their patents GB2433473 and amendment GB2465293. The alleged infringement concerns the alignment of chip contacts on their cartridges. So far, we know Epson have issued takedowns against compatible cartridges T16 XL; T18 XL; T24 XL; T26 XL; T27 XL; T29 XL; T33 XL plus T0715 XL; T0797 XL; T0807 XL.
We are concerned that eBay is giving protection to only one party in this dispute. Rightsholders can easily claim infringement but resellers appear to be unable to assert the legality of their products and listings.
This is both unusual and unfair. Indeed, eBay have said as much in relation to US patent claims:
“eBay has a policy to quickly remove listings when a NOCI [Notice of Claimed Infringement] provides a court order, but eBay rarely removes listings based on mere allegations of infringement. eBay has two reasons for this policy. First, eBay believes that removing listings based on allegations of infringement would be unfair to buyers and the accused sellers. Such a policy, in eBay’s view, would give too much power to unscrupulous patent holders. The second reason eBay has adopted its policy is because it lacks the expertise to construe the patent infringement claims submitted to it and cannot assess the claims when it never possess[es] the products.”
It is also concerning that Epson opted to act against resellers and did not contact the manufacturers first. If Epson believe that their patents are genuinely being infringed then it would be more efficient and just to take direct legal action in order to prevent import or manufacture of these products at source.
At this stage, we cannot know if there is any merit to the Epson’s claim that these compatible cartridges infringe their patents but using patents in this way would undermine the legal regime that protects production of compatible products, including components, such as ink cartridges. That would be extremely bad for consumers.
We have contacted the IPO for clarification of eBay’s duties and responsibilities relating to patent claims. We would like to speak to both eBay and Epson about this. Meantime, if you have been affected by takedowns relating to Epson compatible ink cartridges and patent claims, please get in touch with us by emailing email@example.com.