It has been reported that Whirlpool has filed forty lawsuits to protect a fridge water filter in the USA but it could well happen here too given the sums involved.
Using a Texas court that Bloomberg says is a known venue for people trying to win patent cases, Whirlpool has taken the unusual step of suing retailers that sell cheap compatible water filters direct to consumers and, according to a lawyer for two of the companies, even its own distributors.
“In addition to infringing our intellectual property, these water filters risk harming consumers by failing to meet our high standards,” said Whirlpool spokeswoman Kristine Sherman.
The copycat products are “substandard in a variety of ways,” she said, noting Whirlpool filters are certified by safety group NSF International for up to 66 types of contaminants, including parasites, metals, pesticides and pharmaceuticals.
The reason people buy the cheap copy filters is pretty darned obvious, you can buy them them for half the price or less than Whirlpool’s genuine filters.
Reports say that when the company noticed “a sudden emergence” of the non-Whirlpool filters in 2015, its lawyers swung into action. Only thing is, these filters have been around for a decade or more, it’s nothing remotely new at all.
Whirlpool has been filing patent-infringement lawsuits in Texas since September, claiming companies are selling unauthorised replacement parts for its refrigerators, including the water filters.
But let’s break that down a little will we.
There are a bunch of filters you can buy on Amazon, Ebay and other places that… well, they’re not very good at all. They’re knocked out in China mainly and they are rubbish, we’ve written about these some years ago and how they were breaking down, damaging water tanks and all the rest so, there is some truth to what Whirlpool are saying.
However, there are replacement filters that are just as good which aren’t “Whirlpool”(or any other manufacturer) branded and here’s the ironic twist here that Bloomberg and others didn’t report as, they probably don’t know this; Whirlpool sell their own filters under other brands.
Pot, kettle?
Suing Retailers Over Parts
By suing retailers, the company is copying the same or a similar a tactic from computer printer makers that try to block the sale of unauthorised toner cartridges as well as other industries that rely on the repeat sale of consumable items.
Bloomberg says that most of the defendants in the Texas suits are retailers who sell plumbing supplies and appliances from places like Tennessee, Indiana, Washington, South Dakota and Georgia. They also have online sites where people from Texas can buy their products, giving Whirlpool the standing to sue there.
Some retailers were selling both authorised Whirlpool filters and the cheaper versions, said patent lawyer Michael Smith of Siebman Burg who represented two companies that settled within weeks of being sued.
But it’s a bit rough to sue the retailers for offering their customers choice don’t you think?
Or is it cheaper to go after the retailers that to try to stem the flow of cheap copies from China where, let’s face it, you’ve a snowball’s chance in hell of stopping counterfeit goods?
“I haven’t seen companies like Whirlpool filing cases against distributors,” Smith said. “These are Whirlpool distributors, so Whirlpool would have a little more leverage against them. It is an unusual batch of cases, but I can understand why they are doing it.”
At least two of the companies are manufacturers, including a Chinese company doing business as Yunda Filter Co. that has agreed to stop selling its products including on Alibaba.com, although the suit continues.
It’s not really all that how much Whirlpool earns from the filters but we’d think it was substantial and, as they sell more machines, there’s more business here to go after. So it is liable to be a significant amount of cash Whirlpool is chasing.
Like most of course, Whirlpool recommends that the filters be replaced every six months, which can add up for owners over the lifetime of a fridge freezer and, as we’ve noted in some articles, it can even exceed the cost of the appliance itself over the life of it.
According to the Association of Home Appliance Manufacturers in the USA there were 10.3 million refrigerators shipped by all manufacturers for sale in the US last year, 50 percent had water filtration systems.
That’s a lot of water filters that are required every year, over ten million of them in the USA alone!
Given Whirlpool are probably 20-30% of that, it’s a serious amount of money at $25-40 a filter.
Not About The Money, Huh?
Whirlpool’s Sherman said the cases were filed there because the east Texas district is “very experienced in patent law and has a history of resolving infringement cases in an efficient and prompt manner.”
Whirlpool’s goal isn’t money so it’s been said. If you want to believe that.
In fifteen or more of the cases, settlements came within weeks with only promises not to sell the unauthorised filters. Officials with a some of the retailers that have settled declined to comment publicly, citing the agreements so in other words, an NDA has probably been enforced.
However about another fifteen suits have been consolidated for pre-trial purposes before the judge, with mediation due by February and a trial in August 2017.
The lawsuit against manufacturer TST Water LLC, which is separate from the other cases is scheduled for trial in March and it will be very interesting for us to see how that pans out.
As to the assertion that it’s not about the money well some simple arithmetic would have us thinking that this is probably worth in excess of $10 million a year to Whirlpool so, if anyone wants to believe that it’s not about the money, feel free. We’ll think it is as otherwise, what bother doing anything at all?
All About One Patent
Many if not most of the cases appear to focus on a single patent issued in February 2006 to Pur Water Purification Products, that transferred to Whirlpool in 2007. It’s for “fluidic cartridges” with end pieces that cause the valves inside the fridge freezer to work.
The companies under attack in the cases have filed responses to say this patent and others that were asserted in some of the cases are invalid or weren’t infringed.
TST Water that sells water filters under the name WaterSentinel openly admits making filters that can be used in Whirlpool refrigerators but said there’s no harm to Whirlpool.
Whirlpool got paid for its patent when the consumer bought the refrigerator with the original filter, and the replacement parts fall under the legal theory of “permissible repair,” meaning someone has the right to keep their purchased product working, TST said in its response to the suit.
It also says Whirlpool waited too long to complain; the patent was issued in 2006.
It will be hugely interesting to see how this one pans out and, if Whirlpool or any others try this in Europe as it could hold huge ramifications if Whirlpool win this.
Just think if compatible spare parts were never to be available as they were banned in law or, companies were scared to produce or sell them for fear or legal repercussions from doing so where the world would be.
Parts for old cars, appliances and goodness only knows what else could all be consigned to the dump or scrapyard because the manufacturer decides to no longer support it when, there may well have been a community of small producers making parts to keep them in use.
There again, we don’t suppose to many manufacturers will complain about selling replacements or indeed being able to freely charge what they like for components.
