Whiter than white?
Whiter than white?

Yesterday I tweeted a link from IP Watchdog to a post called “The Story of How Patents Promote Innovation.”  Now, Gene Quinn loves patents, but he’s never been in denial about just how stupid the PTO can be in its patent decisions.  It’s a good thing, too, in light of how he would otherwise have to answer for his overall defense of the concept as against the “dumb patent of the week” — arguably the year or more — that’s making all the rounds.  (Not that he hasn’t already written that piece.)

Anyway, notwithstanding the merits of that forced segue, here’s the story, Via TechDirt:

The US Patent and Trademark Office is frequently maligned for its baffling/terrible decisions… and rightfully so. Because this is exactly the sort of thing for which the USPTO should be maligned. Udi Tirosh at DIY Photography has uncovered a recently granted patent for the previously-unheard-of process of photographing things/people against a white backdrop… to of all companies, Amazon. . . .

Some patent examiners will buy anything
Some patent examiners will buy anything

Chalk up another loss in the USPTO’s column and a baffling, oblique “win” for Amazon’s IP legal team, which now “owns” an obvious method.

Can LIKELIHOOD OF CONFUSION® possibly add to this?  Usually when everyone’s writing about something I do one of three things: (a) Ignore it on purpose; (b) ignore it by accident (i.e., miss the story even though everyone else is writing about it — hey, it’s like that around here); or (b) round up what everyone’s saying it about it and see if I see something.

This one, however, is a challenge.  Because so far all I see on the Internet is mouth-agape dumbfoundedness — at Slate, at Gizmodo, at CNET, etc.  Although I did find this divergence of views.  Over at Ars Technica, Joe Silver writes, somewhat menacingly:

Whether this process is overbroad or fails to meet the legal requirements for patent eligibility is subject to a debate that will likely be ongoing. But as things currently stand, Amazon now appears to have control over yet another area of the commercial marketplace should it choose to wield such power.

Whereas Ashley Feinberg at Gizmodo observes, perhaps more insightfully:

[W]hile Amazon almost undoubtedly did not pioneer this technique as they claim, the fact remains that there is still pretty much no way to enforce the patent. The extensive and specific conditions listed mean that there is pretty much no way to either A) violate it or B) know if the patent has even been violated in the first place.

I think, yes, more insightfully.  Profoundly, even.

Which leaves the question of why Amazon bothered.  Well, each of the articles linked to above, and many more, speculate about that.  I certainly have nothing to add.  Perhaps it is worth noting, though, that evidently more than one person reporting on this story has sought Amazon’s comment, and come up empty.  I don’t know how long this patent will last, but Amazon’s no-comment policy certainly won’t.  I therefore humbly offer a selection of possible comments from the proud new patentee, which — out of gratitude for Amazon Prime’s free shipping — I offer gratis:

  • “Wait, that actually got filed?  The one from the office holiday party over at legal?”
  • “Amazon intends to vigorously enforce the proprietary rights appropriately recognized by the U.S. government’s issuance of this patent.”
  • “Photographers who infringed this patent also infringed …”

Other suggestions will, of course, be passed along.

Originally posted 2014-05-13 12:06:21. Republished by Blog Post Promoter

By Ron Coleman

I write this blog.

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