Get out the pitchforks! It's time to storm the castle at the US Patent Office and at the headquarters of Amazon! The USPTO just granted a patent for something that we have been doing for years.
Or so the article in techdirt would have you believe. According to the title of the techdirt article, Amazon now owns the right to "photography against a white background". Gosh darn it to heck! We have been doing that for years! How can the patent office be such stupid-heads to allow such a patent to be granted?!?!? Tim Cushing (the author of the article) starts out on the offensive:
The US Patent and Trademark Office is frequently maligned for its baffling/terrible decisions... and rightfully so.
And he ends the column on a similar tone:
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.
Relax. Douse the torches, put away your pitchforks. There is no issue here. The simple explanation is that the folks at techdirt (and many of the folks who commented on the article) don't understand patents.
The US Patent and Trademark Office is frequently maligned for its baffling/terrible decisions... and rightfully so.
And he ends the column on a similar tone:
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.
Relax. Douse the torches, put away your pitchforks. There is no issue here. The simple explanation is that the folks at techdirt (and many of the folks who commented on the article) don't understand patents.
Disclaimer
I am not a patent lawyer, and I don't even play one on TV. And while I have a whole mess of patents, I can't give legal advice - only illegal advice. And I will write that illegal advice on an illegal pad, if you like. If you have a concern about this patent, or any other patent, talk to a patent attorney. Don't take the advice of a fellow who blogs on the internet under a phony name like "John the Math Guy".
Speaking of my patents though, they are soon to be released in a series of YouTube videos. Great stuff, by the way. Enacted by some of the best patent actors in the business.
Dramatic reading of US patent #8,437,041
The (white) background
Amazon has requirements for the product images that you see on their site. One of the big things is that the images aren't allowed to have anything distracting in the background. You may not have noticed this, but almost all images of products on Amazon have a white background.
I'm sure the execs at Amazon had long debates about what color the background should be. I can picture one CFO arguing adamantly for "lilac", with the CTO holding out for "puce". Guys are like that. Somehow they managed to agree on white.
What is a patent?
Before I go off on an illegal tirade, I should say about what a patent is. A patent is a fence around a piece of intellectual property. The boundaries of that fence are written in the claims of the patent. I'm guessing that none of the people who were up in arms on the techdirt webpage actually bothered to read the claims, but really, that's all that is important.
What about all that other stuff in the patent? There is usually stuff like an abstract, a background, a summary, and a description section. The patent has to have disclosure like this. Why are they there? A patent is essentially a contract with the government. In exchange for the exclusive right to make use of the invention, the patent office requires that the inventor describe the invention is enough detail so that someone could go build it without undo experimentation.
So, before you get all lathered up about how the patent office is a bunch of bozos, or about how Amazon is in the extortion business, read the darn claims.
The first claim
I am only going to look at the first claim in this blog. (I'll admit it. I'm lazy. If you want an analysis of the the rest of the claims, find another math guy color scientist edutainment blogger who has more time on his hands.)
Here are some highlights from the first claim, and some workarounds. Important point: the rules say that in order to infringe on a certain claim, you need to do everything that's listed in the claim. Every single item. If you leave out only one thing, then you won't infringe. Another important point: You really should look at all the claims. You may have managed to escape infringement of claim 1, but claim 7 might get you. If a real patent attorney were doing this and getting paid embarrassing amounts of money, he/she would look at all of the claims.
One of the requirements of the first claim is that you must use a cyclorama as the background. That's great! How can I infringe if I don't even know what a cyclorama is? Just kidding... this illustrates one good reason for the rest of the patent to exist. It can be used to define what a cyclorama is. In this case, it does. A cyclorama is defined as "a curve, concave background". So, if I want to get around infringing on this claim, all I need to do is have a flat or convex background. Nothing else, and I am good to go.
By the way - this illustrates one of the things that I have enjoyed about writing patents. I think the word cyclorama existed before this patent, but the inventor is allowed to be his own lexicographer, which is to say, the inventor is free to invent words so long as they are defined in the patent, and may redefine standard words, so long as the new definition is not repugnant to the normal definition. This is how the words "vromanoid", and "disadumbration" entered into common usage.
Here are some highlights from the first claim, and some workarounds. Important point: the rules say that in order to infringe on a certain claim, you need to do everything that's listed in the claim. Every single item. If you leave out only one thing, then you won't infringe. Another important point: You really should look at all the claims. You may have managed to escape infringement of claim 1, but claim 7 might get you. If a real patent attorney were doing this and getting paid embarrassing amounts of money, he/she would look at all of the claims.
One of the requirements of the first claim is that you must use a cyclorama as the background. That's great! How can I infringe if I don't even know what a cyclorama is? Just kidding... this illustrates one good reason for the rest of the patent to exist. It can be used to define what a cyclorama is. In this case, it does. A cyclorama is defined as "a curve, concave background". So, if I want to get around infringing on this claim, all I need to do is have a flat or convex background. Nothing else, and I am good to go.
This is not a cyclorama
By the way - this illustrates one of the things that I have enjoyed about writing patents. I think the word cyclorama existed before this patent, but the inventor is allowed to be his own lexicographer, which is to say, the inventor is free to invent words so long as they are defined in the patent, and may redefine standard words, so long as the new definition is not repugnant to the normal definition. This is how the words "vromanoid", and "disadumbration" entered into common usage.
The claim also says that the cyclorama must be white. Make yours light grey, and you won't infringe.
The first claim requires that you have a light source that is perpendicular to the face of the cyclorama. Ok, so put your light source at 10 degrees off from perpendicular.
Another requirement in the claim is that the camera and the light source must be in a line along this perpendicular. Now, I'm not a photographer (or patent attorney), but I think it might generally be a good idea to not have the light source directly in line with the camera. Anyway, change the angles around a bit, and you're good to go.
The camera in the claim has some pretty limiting characteristics. It must have an 85 mm lens, be set up for ISO 320 speed, and have the aperture set to 5.6. The claim says "about 5.6" and "about 320", so I don't know exactly what you could get away with. As a math guy, I would think that 8 or 4 is not "about 5.6". And again, I don't know if a zoom lens which is capable of zooming to 85 mm is cobered in the claim. Certainly not if the zoom lens is not set to 85 mm.
By the way, my patent attorneys have always told me to avoid fuzzy words like "about". If this were one of my patents, it would read something like "with an f number of at least 4, but no greater than 8".
By the way, my patent attorneys have always told me to avoid fuzzy words like "about". If this were one of my patents, it would read something like "with an f number of at least 4, but no greater than 8".
Infringement of the first claim further requires that there must be an elevated platform on that line that is perpendicular or something like that. (Funny... The claim actually never says that there must be anything to take pictures of, but presumably the platform is where you would place the purse or the boot that someone is trying to sell on Amazon. I guess you actually don't need to have product on the platform in order to infringe. Come to think of it, it looks like you don't actually have to take a picture to infringe. I have no idea what that means in terms of the patent.)
How to get around this part of the claim? Maybe I'm being dumb here, but maybe you could put the boot you are photographing on the floor? Or dangle it from the ceiling with fishing line?
How to get around this part of the claim? Maybe I'm being dumb here, but maybe you could put the boot you are photographing on the floor? Or dangle it from the ceiling with fishing line?
Setting up the next product shoot for Lands End
The claim then goes on to require a total of four lights that are pointed at the background. There is a required position and orientation for each. If you leave out one of the four lights, or put one of the lights somewhere other than what is stated, or point it in a different direction, then you're are in the clear.
One thing to note. The claim says there must be four lights shining on the background. Adding a fifth light to the mix doesn't help you get around the claim. Adding stuff to the mix doesn't get you around a claim unless the claim says something like "no more than".
The claim goes on to say that the top of the elevated surface looks like the background. Hmmm... I'm not sure how to design around that one, since Amazon requires that the silhouette of their images be white. Darn! If only someone had invented green screen, or a retroreflective material that is whiter than white, or maybe had some way to illuminate the surface from below to make it whiter than white. Or if someone could figger out how to use PhotoShop to make a white background.
Finally, one last element to the first claim. The total intensity of the four light sources trained on the backdrop must be about 10/3 times the intensity of the main light. There's that pesky word "about" again. I dunno how you read that but I think that if they meant "about 3", then they would have said "about 3", rather than the precise sounding 10/3. So, I don't think that 3 is about 10/3. I dunno... maybe someone else might disagree. I'm thinking a ratio of 3 might be ok, but what do I know?
Note also that the word intensity in the claim refers to the intensity of the light, and not the intensity of the light that hits the surface of the backdrop. You could turn the four lights way up, so as to get a 20/3 ratio, and then shutter them back to 10/3. Or, You could put in fifty lights of equal intensity to get those 10 shares of light. The claim calls for the total intensity of four lights to be in that ratio.
Ohhhh! So many ways to design around this claim!! Getting around this claim is as easy as falling off the surface of an elevated platform positioned between the image capture position and the background in the longitudinal axis.
I read this claim, and I tried to imagine trying to set up a studio in an attempt to willfully infringe on it. If I tried, I guarantee you that I would mess it up. There are just too many requirements for a simple guy like me. I would set the shutter speed in order to infringe and then accidentally change it later. Maybe I would wind up moving one of the four lights? Or I would forget to turn one on?
Is a workaround legal?
The reader may be wincing at all this talk about workarounds. Maybe it sounds a bit slimy? Like maybe any of these workarounds would infringe on the intent of the claim and get someone angry? Lemme repeat what I said before... a claim in a patent is like the fence between my property and the neighbor's property. Am I trespassing if I walk right up to the fence line?
Addendum
Once again, this blog is not to be construed as legal advice. A real patent attorney would say stuff like "a claim must be read as broadly as possible without reading on prior art". A real patent attorney would suggest looking at the file wrapper to see if there is any further clarification in the prosecution history. But, I don't even know what those words mean.
This blog, on the other hand, should be construed as an attempt to get people to put away their pitchforks and stop paying attention to rabble-rousers who are trying to get people excited over nothing.
Addendum
Once again, this blog is not to be construed as legal advice. A real patent attorney would say stuff like "a claim must be read as broadly as possible without reading on prior art". A real patent attorney would suggest looking at the file wrapper to see if there is any further clarification in the prosecution history. But, I don't even know what those words mean.
This blog, on the other hand, should be construed as an attempt to get people to put away their pitchforks and stop paying attention to rabble-rousers who are trying to get people excited over nothing.
An amusing read, about an amusing patent.
ReplyDeleteAlthough uspto will grant patents, it does not mean they will hold up in court anyways.
A patent is a license to sue. And it must be defendible in court (against challenge).
They don't have a legal ground to stand on.
What's more, this is a badly designed patent: it is too specific. Of course, had it been less specific (and thus better written), it probably would not have been granted. An example of what I mean, but that can be transposed to the whole thing: instead of 4 lights, write it as "1 or more lights", and leave our extraneous details like specifics on aperture or ISO, etc. as you really don't need all those limitative factors - a "photographic device" or "image recording device" might be better.