If you are a photographer, you have no doubt seen that Amazon has apparently obtained a patent for a specific methodology for shooting on a white background. Everyone has been up in arms about it but, in spite of my lame patent knowledge, I thought there had to be more going on here. Or, actually, less. I thought that even if Amazon had the patent, it had to be somehow not enforceable. At the very least, it seemed to me that it would be essentially overwhelming for Amazon to even attempt to litigate against each individual (mostly broke) photographer who uses the same set-up and it wouldn’t be cost-effective unless they only went after large photo-factories, but there really aren’t so many of them anymore so that seemed unlikely too.
Even so, photographers are a worrying lot so I thought I’d try to find out the skinny on the patent. Luckily, I have a friend who is a brilliant patent lawyer so I asked her for her general impression. Here is what she told me (of course, none of this is actual legal advice–just her impression):
If this technology is as old as the article indicates, then the patent is likely invalid. Invalidity and non-infringement are the two primary defenses in almost every patent case. Amazon cannot receive a patent to an old technology. They have to establish something is novel about their invention. They have to conceive the invention. But you can argue it existed in the prior art or was obvious from prior art and thus the patent is invalid.
So, it seems that in the patent world, the first defense is similar to the copyright world: invalidate. And here, even though my friend is not from the photo world, even she can tell that the technology likely pre-existed the patent and so, boom, the patent would likely be found invalid.
In other words, Amazon may hold a patent, but that piece of paper is essentially worthless. Might as well use it to wrap a book for shipping.
Whatever the reality, I’m not going to get in a lather about any of it until or unless Amazon not only attempts to enforce its patent, but succeeds in doing so. We have bigger, much more threatening fish to fry.
Leslie thanks for sharing some real information about this topic. I also came to the same conclusion that first off all how could they even prove you used the same setup and second what are they going to do about it.
Thanks for your insight, always helpful.
Lee
Your friend is quite right, but there is one thing that should be pointed out…
Patents, like trademarks (and to an extent copyrights although they are inherently different) are legally presumed to be valid once issued or approved by the PTO.
So yes, this patent is junk (I am a patent lawyer as well, although I wouldn’t call myself brilliant) in my professional opinion. But to *prove* that it’s junk, you’re going to have to spend a lot of money.
Now, whether Amazon would ever try to enforce this patent, I have no idea. For all I know this was a vanity patent (they do exist) for some high muckety-muck in the Art Department at the ‘zon. If I were their attorney, I’d tell them never to try, as it would be embarrassing and the PR costs would far outweigh any possible business advantage, since in the end the patent would be found invalid.
But if they did, the courts would assume it was valid, and any accused infringer would have to come to court and prove obviousness, or they would lose.And while it wouldn’t be hard, it would require actual lawyers and actual filing and actual money. So while I’m having a hard time visualizing Amazon actually C&D’ing anybody, and on what grounds they’d do it, if they do, people should know that they can’t just ignore this because “the patent is no good.”
I know neither you nor your friend were saying that, but people take away what they want to hear from things like this – so it should be said out loud that that is NOT what should be taken from your post. 🙂