Amazon has had some pretty revolutionary ideas over the years. The Kindle is awesome. Prime is a great service. And drone delivery may be on the horizon. However, Amazon has gone a bit too far with one of its latest "inventions."
Amazon Technologies, Inc. (a subsidiary of Amazon.com, Inc.) has legitimately…
I also thought this MUST be an April fool! There is nothing in it that is novel as far as any studio photographer is concerned. In my limited knowledge of patents, this would be completely unenforceable. What is being patented? Not equipment, obviously. Must be know-how. Duh!! The patent wording is vague. Using words like "substantially" and allowing positioning of equipment to be within a range is not precise enough for a patent application IMHO.
GET REAL AMAZON.
As with all Amazon scare patents, you have to look at what the claims actually cover. See here: http://pdfpiw.uspto.gov/.piw?d…..uspto.gov/
The simple version is that to infringe a patent, you need to provide all the elements of the claim.
Claim 1 of the patent in question (US 8,676,045, see above link) requires the use of an 85mm lens, an ISO of 'about' 320, an aperture of 'about f5.6', and a lighting ratio of 'about' 10:3.
So this claim probably does pass the novelty test, because the Examiner won't have been able to find any prior art with that specific combination of variables. Of course he would have found examples of high-key studio set-ups, but that's not what's being claimed (per se).
To be patentable, the claim must also be non-obvious. Under US patent law, this is a fairly subjective test, and applied in ways that often seem to be out of step with most of the rest of the world. With regard to obviousness, the Supreme Court has unfortunately muddied things up rather than clarified them the last few times this has come up. From a philosophical point of view, a very specific set of camera settings may not be 'inventive' (the European standard) but they may nevertheless not be 'obvious'. I'm still surprised this got through. But here we are.
So, Amazon now have this patent. Will lots of people infringe it? Er, no. Only (for certain) people using an 85mm lens, ISO 320, f5.6 and a 10:3 light ratio (amongst other things – there are other elements in the claim that also must be proided). There's some wiggle room around most of that because of the 'about' language, but I think (*not a formal opinion*) you'd be totally in the clear using a 100mm or 50mm lens. Zoom lens with a range encompassing 85mm but not set to 85mm exactly – probably not but a grey area. Would ISO 400, f6.3 or 10:4 light ratio infringe? Also a grey area, likely not especially if combined.
Also bear in mind that (unless you include metadata in the finished JPG on a website and have an inspectable or well-documented studio set-up) it's going to be very hard to work out who is infringing – mostly all you'll see is a product against a white background, which could have been produced by any means, including photoshopping out non-white bits of the background as in the prior art. (Yes there may be a vague suggestion of a particular focal length or aperture, but you couldn't determine this to an appropriate level of accuracy to determine infringement in this case).
This is basically a very limited patent. I haven't read the prosecution history and I don't know what discussions went on in Amazon, but this looks like a desperate attempt to get absolutely anything granted, no matter how limited, just so they could say the technology was patented in vague terms, and/or to use it as a stick to beat competitors around the head (which is relatively easily done in the US system as you can rack up huge losses even if you win).
Is this a patent abuse? Well, Amazon (being Amazon) have managed to stoke up another controversy, not making them or the USPTO look too great, again, but (without having checked the arguments and prior art on the record) a patent this narrow in scope doesn't seem like any sort of abuse. How it's used, and in particular how anti-competitively, will determine whether this is patent abuse, but that's more a question of anti-trust law and commercial judgement than a question of whether a patent should have been granted. If this was someone other than Amazon this patent wouldn't have come up, full stop.
(To learn more, you could inspect the prosecution history via the USPTO Public Pair site.)
(I am a qualified European/UK patent attorney and a photographer – go figure – but am not giving an official opinion here, certainly not on US matters)
Stuff like this really makes me think there are a lot of companies out there that don't understand what a patent is, or know the difference between patents and trademarks.
The patent process largely is based off the rule of, whatever it is can't be easily duplicated.
If its widely used by the public already, (IE: Public domain) it can't legitimately be trademarked either.
This is not the first time the patent process has been abused, some may recall certain companies attempted to patent stuff like ordering off the web with X number of mouse clicks or that absurd supposed scientific formula for picking the correct life mate in a dating pool. They were all approved until challenged in court. The number of incoming patent requests I guess is so high that the patent office does not have the man power to proof read them anymore. If my assumption is incorrect then the patent office is fabulously high off their butts on that government grade pot I keep hearing about.
It must be groundhog day.. History is repeating itself.
The USPTO process is flawed in many respects, and I've received my fair share of absolutely brainless examination reports, but I can assure you that everything is examined. In the business methods/software field, it is in fact relatively difficult to get anything granted these days – including (to the detriment of my own clients) a lot of good, technically-focussed inventions that deserve protection. (That may in fact be why the only dodgy-looking Amazon patent in recent times has gone through in a photography-rather than software-related field).
Unfortunately patent and trade mark laws are complex. As much as it is tempting to reduce the issues in a case like this to a good soundbite or two, while there may well be errors and/or abuse involved, things are not usually as clear-cut as they seem.
I hadn't seen that one (US 8,370,271). Claim 1 is:
1. A computer-implemented method for providing recurring delivery of products, the method comprising performing instructions under the control of a computer system for: receiving at the computer system a designation of a delivery slot and a recurring delivery list comprising one or more list items, each of the one or more list items identifying a product, a quantity to deliver, and a frequency of delivery; periodically generating, by the computer system, an order having a date and time for delivery based on a next occurrence of the delivery slot, the order being generated in advance of the date and time for delivery such that the order has a period of time of pendency prior to the delivery; creating, by the computer system, one or more order items for the order based on a last delivery date and the frequency of delivery of each list item in the recurring delivery list; receiving at the computer system a change made to a first list item of the recurring delivery list during the period of time of pendency of the order; in response to receiving the change, determining, by the computer system, whether the order includes an order item corresponding to the first list item; in response to determining that the order includes an order item corresponding to the first list item, modifying, by the computer system, the order item corresponding to the first list item based on the change made to the first list item of the recurring delivery list; and providing, by the computer system, the order to an order fulfillment system capable of causing the one or more order items to be delivered substantially on the date and time for delivery.
Yeah, that's pretty bad. It's a lot broader than the photography one. Presumably the Examiner hadn't found anything which disclosed all those claim elements, and he judged the difference to be non-obvious. So the problem is either the quality of the prior art search, the assessment of obviousness, or both.
What I'm finding, by the way, is that increasingly Examiners ask you to narrow claims – not because they've really found prior art to justify that (in which case, fair enough) – but because (and this is entirely speculation on my part) they don't want to be the guy that issues the next silly Amazon patent. So thanks, Amazon, for poisoning the well…
On the plus side, it is getting easier for third parties to challenge US patents/applications, but there is further to go.
It makes me wonder though, exactly *why* did they patent this? I know they photograph models wearing this or that clothing, but it would seem like a huge waste of time and money for something as generic as this. And enforcing it would be a bottle-of-asprin headache to enforce. Unless there's some back-office lawyer trying to justify their position, it just doesn't seem worthwhile.
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