Will Amazon Win “The Most Undefendable Patent Award” of 2014?

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Amazon Patent Drawing for “Sudio Arrangement”. source: USPTO

On March 18, 2014 Amazon was awarded a patent simply called “Studio Arrangement”.  The patent is for a particular type of photography studio setup that involves taking pictures of any kind of object in front of a cyclorama.  I would agree that its definitely not novel at first look.  I doubt you’ll find anyone saying what Amazon has patented was previously unattainable or not obvious to anyone of ordinary skill in the art of photography (read: any experienced photographer).

Predictably, some writers seem aghast, and are expressing surprise that such a thing could be patented in the first place.  The  agbeat.com article  questions whether or not the USPTO process used to evaluate patents is even sane.  The and the Puget Sound Business Journal article on the same subject simply asks why Amazon would choose to do so in the first place.  They may have a valid point, but now that the patent has been issued it’s for the court to decide if/when Amazon has to defend or prosecute their patent.  The fact is, US law requires the USPTO to award a patent to any invention that meets certain criteria.

Whether or not the USPTO violated statute in issuing the patent aside, it’s fun to look at what Amazon may have set itself up for:  the loss of a lot of money defending such a patent.  If you think about the concept of prior art, you’ll see why.

Ex-Parte Examination

The USPTO has a way that anybody can require the USPTO to re-examine a patent to determine whether or not a mistake has been made.  Once the application is approved, my understanding is that it’s not possible for Amazon to stop the process. This is one way Amazon’s $20,000+ in costs to get the patent could be at risk.

Prior Art

There are no prior art references in the Amazon patent.  Now that IS curious. Prior art is important here.  Basically, anyone who files a patent is wise (or perhaps has a duty) to identify prior art to the patent. Failure to do so means that prior art can be used to invalidate a patent.

Prior art, according to lusmentis.com, is basically any public disclosure that shows that the claims of Amazon’s patent are not novel. Given that Amazon has no prior art claims, and that the patent is for something so basic, it stands to reason that the patent may be declared invalid.

Did Amazon Buy a Lemon?

If you look at the patent you’ll notice four inventors, and Amazon is simply the assignee.  It’s fair to assume that Amazon paid some sort of fee, or benefit to the inventors to get this patent filed.  Whatever the situation is, Amazon may have procured the rights to a patent that is not enforceable.  The worst case for Amazon: they spend hundreds of thousands of dollars paying for and defending this patent only to discover that the patent is invalidated.

That’s a lot of risk to take over this kind of invention.

Long Story Short

Long story short: the patent may be a failure of Amazon to exercise discernment in what it tries to patent.  It may be the USPTO falling down on the job.  Or, a bit of both.  Time will tell.

Endgame

Endgame: the lawyers win in the end, especially if this patent goes in front of a judge.  If that happens we can thank Amazon for supporting the legal profession at the end of the day.

 

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