HP Seeking to Have Inkjet-Printer Firmware Class-Action Lawsuit Dismissed

Law360 reports that HP Inc. sought to convince a California federal judge on September 1st to dismiss a proposed class action lawsuit alleging that HP attempted to “monopolize”the printer ink-cartridge market by using a firmware update to block HP inkjet printers from accepting third-party ink cartridges. HP’s attorney argued that HP doesn’t have a legal obligation to ensure that its printers use other companies’ third-party cartridges that infringe on HP’s intellectual property (IP) rights.

HP attorney Rod Stone of Gibson Dunn & Crutcher told U.S. District Judge Edward J. Davila that the March 2016 HP firmware update only targeted ink cartridges that infringe on HP’s IP rights, and that no legitimate third-party ink cartridges were affected. Stone said that HP took the right steps to stop infringing ink cartridges from being used, and to do so isn’t a crime.

“This was a routine firmware update that was done with permission,” Stone said. “We don’t think there’s any computer crime here.”

The class-action lawsuit was brought by six consumers who allege that HP’s firmware update violated the Computer Fraud and Abuse Act, multiple state unfair competition statutes, and common law.

Background

In September 2016, thousands of HP inkjet-printer users reported that they could no longer use non-HP ink cartridges with various HP OfficeJet printers and All-in-Ones, after a routine HP security upgrade over the Internet to their printers.

HP subsequently apologized for the update, and, in October 2016, released a firmware update that unblocks use of non-HP, third-party ink cartridges.

In the meantime, though, the non-profit Electronics Frontier Foundation demanded that HP “needs to promise never to use a security update” that would block use of third-party cartridges, and several consumers began filing a class-action lawsuit.

Class-Action Lawsuit

The class-action lawsuit seeks to certify a nationwide class of consumers who own certain models of HP’s OfficeJet, OfficeJet Pro, and OfficeJet Pro X series.

During the hearing last week, HP attorney Stone argued that the firmware updates are standard and to criminalize them would be a very broad expansion of the federal computer-abuse statutes. He also argued that the consumers also authorized changes to the printer by accepting the firmware updates.

Stone also explained that since the suits were filed, HP has received complaints from customers about the firmware update. As a result, HP issued a patch so that those customers can undo the previous update and “proceed at their own peril,” Stone said.

Stone added that although the patch might affect potential damages that are recoverable in the suit, “it’s not really relevant to HP’s motion to dismiss, and the patch was purely done as a customer service measure.”

In response, the consumers’ attorney, Jordan S. Elias of Girard Gibbs, argued that the firmware update was HP’s attempt at “crushing the competition. But if it wants to stop companies from making rival ink cartridges that infringe on HP’s IP, it needs to ‘go to the source,’ ” – that is issue a cease-and-desist letter and seek a court-ordered injunction against the third-party ink-cartridge makers.

Elias said that after the firmware update and subsequent error messages that appeared on customers’ printer control panels were “positively baffling.” The messages said the ink cartridge was missing or damaged. He said that, as a result, many customers were confused and were forced to buy more expensive HP cartridges.

In one case, Elias said, the customer thought that her ink cartridge was broken, so she purchased another one. When her printer still didn’t work, “she called HP for technical support and the customer service representative told her that her printer was likely broken, so she purchased a new one, Elias said.”

Elias added that since the update, HP has apologized to customers, but the company admitted “it would do it again if it’s necessary, so a court-ordered injunction is necessary.”

The judge in the case has not yet decided whether to dismiss the case, which is HP Printer Firmware Update Litigation, case number 5:16-cv-05820, in the U.S. District Court for the Northern District of California.

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