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  • Locked thread
WhiskeyJuvenile
Feb 15, 2002

by Nyc_Tattoo

KernelSlanders posted:

Anyway, speaking of 112, do we know yet how the AIA is going to affect the "best mode" requirement in practice? It seems the act has made that requirement effectively toothless. Presumably the enablement requirement is still in force. Does that ever get patents invalidated in practice?

Best mode was already toothless.

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Kalman
Jan 17, 2010

Pre-AIA, best mode was practically toothless but in theory could be used as a defense in court.

Post-AIA, it remains a formal requirement but can no longer be used to challenge a patent in court.

A number of interest groups are pushing for removal of even the formal requirement for best mode in the new round of reforms.

Best mode is dead.

Edit: enablement definitely gets patents invalidated, but that's more common in pharma than in high tech patents where things tend to be more predictable in execution and enablement requirements are correspondingly lower.

Munkeymon
Aug 14, 2003

Motherfucker's got an
armor-piercing crowbar! Rigoddamndicu𝜆ous.



Kalman posted:

Exempting anything done in software from determining infringement is actually even worse than trying to ban software patents. Oh, there's a patent on the process for making cancer drug X? I'll do one of the processing steps in software, now I don't infringe.

I don't understand how you could do a chemical reaction in software :psyduck: I'm thinking there's a language disconnect around "process" patents in that I don't understand the scope of "process"?

quote:

The point, again, is that software isn't special and shouldn't be treated as special.

It absolutely is and should be. Any piece of software is simply an algorithm (or collection thereof). I think you guys would say they're only/just/purely functional claims?

Plus, I can run an algorithm in my head and getting sued for thinking in a certain way is pretty heinous. Hopefully a court wouldn't take a claim like that particularly seriously, but it is a logical place for a patent on a "general purpose computer that does Thing by doing T, H, I, N, and then G in sequence" patent to go.

quote:

The problems with software patents aren't unique to software patents - as mentioned, of my current troll cases, zero involve software patents. The solutions aren't unique either (my preferred solution, enhancing when 112-6 applies, would be useful in a lot of bad non-software patents as well).

Bad patents are a problem, but they aren't bad because they're software, they're bad because lovely examiners let bad patents through (no offense to Whiskey - any examiner who searches out CyberSource to make a 101 rejection isn't who I am talking about).

Trying to eliminate bad patents by banning software patents is like trying to eliminate bugs from your UI code by deciding not to have a UI. Yeah, it will reduce the number of bugs overall but it doesn't actually fix the reason you have the bugs.

But it solves my problem :) My personal goal in eliminating software patents would be to make the patent system match my view of how the industry actually works rather than to try to make the industry conform to a patent system originally designed around manufactured physical goods. It's analogous to the problem of applying copyright laws written when there were much more manageable physical limits on how many copies you could make of a piece of data to modern technology where the cost of copying an entire library worth of books can amortize out to Epsilon pretty quickly.

I'll try to read up on 112-6 limitations to (hopefully) figure out what you mean, though.

Munkeymon fucked around with this message at 22:57 on Dec 19, 2013

Munkeymon
Aug 14, 2003

Motherfucker's got an
armor-piercing crowbar! Rigoddamndicu𝜆ous.



NJ Deac posted:

A colleague of mine is of the opinion that you could argue that "a general purpose processor programmed to do feature x", where one method of doing "feature x" is described in the specification, might be invalid under 112 first paragraph under the reasoning in Miyazaki, since there are probably thousands of different ways to implement feature x, and your claims would be "encompassing any and all structures or acts for performing a recited function, including those which were not what the applicant had invented, [such] that the disclosure fails to provide a scope of enablement commensurate with the scope of the claim." (Miyazaki, page 27). I'm not sure if that argument would be a winner with respect to computer software, since I'd argue the processor itself is sufficient structure, but I think it's an interesting reading and I'd love to see someone make that argument on an appeal to the Federal Circuit just to see what happens.

That reasoning sounds spot on to me, unless there's some limit on the software representations of the feature which are considered infringing. Meaning the software source would have to follow the method outlined in the patent very closely. I mean, you realize how board the term "general purpose processor" is, right? There are a lot more of them in any given machine than the nominal CPU.

Kalman
Jan 17, 2010

Instead of trying, again, to get you to see why your idea of banning software patents is fatally flawed, I'm going to point you to a paper which does a good job summarizing why you're wrong to think it would fix anything or even be possible (page 5). Basically: defining "software" in such a way that you don't wind up with either "everything is a software patent" or else "it's trivial to write a patent that covers software that doesn't meet the definition" is probably impossible. That's a judgment coming from a group of people who agree with you that software is special. (I don't find that part of their argument to be convincing - for instance, they note that software has a first mover advantage as part of why software's short life cycle is special, but first mover advantage is generally greater in markets with longer life cycles because they generally also have longer development cycles).

It also proposes some actually useful solutions (pages 7-11). Pay particular attention to Lemleys approach on 7.

Kalman
Jan 17, 2010

NJ Deac posted:

I'm not sure if that argument would be a winner with respect to computer software, since I'd argue the processor itself is sufficient structure, but I think it's an interesting reading and I'd love to see someone make that argument on an appeal to the Federal Circuit just to see what happens.

I think he has good case law support for at least a judgment that the patent would be limited to the disclosed algorithms for the functions, except for functions where algorithms are common knowledge (e.g., storing data to a hard drive).

Lighting World or MIT v. Abacus for the proposition that the claim term is to be interpreted as means plus function, WMS Gaming/Ergo Licensing to limit the structure to a general purpose computer running algorithms disclosed in the spec.

I'd still like to see a stronger means presumption but it would have to come from Congress or SCOTUS since the Federal Circuit is not friendly to expanding when 112-6 applies.

WhiskeyJuvenile
Feb 15, 2002

by Nyc_Tattoo

Kalman posted:

I think he has good case law support for at least a judgment that the patent would be limited to the disclosed algorithms for the functions, except for functions where algorithms are common knowledge (e.g., storing data to a hard drive).

Lighting World or MIT v. Abacus for the proposition that the claim term is to be interpreted as means plus function, WMS Gaming/Ergo Licensing to limit the structure to a general purpose computer running algorithms disclosed in the spec.

I'd still like to see a stronger means presumption but it would have to come from Congress or SCOTUS since the Federal Circuit is not friendly to expanding when 112-6 applies.

You've seen 76 FR 7162?

Kalman
Jan 17, 2010


Yeah, but that's examiner guidance, so courts will mostly ignore it.

(Also, examiners don't necessarily apply it well - I've had one tell me that he had to treat terms like "x determining entity for determining x" as mpf but that "x determining software entity for determining X" was fine. He is a weird dude, though, even for an examiner.)

Zo
Feb 22, 2005

LIKE A FOX
I caught up on the thread and have to agree with kalman. Reforming the examination process is really key to stopping bad patents from being issued in the first place.

I'll use the Japanese patent office model. The JPO employs far fewer examiners than the USPTO after accounting for differences in terms of workload. The statistics back this up: Japanese Examiners examine 2.5 times as many applications compared to US examiners (JPO Annual Report 2013). This is only possible because under Japanese practice, the burden of proof is assumed to be on the Applicant. A JP examiner can reject 150 of your lovely claims in under three sentences.

In the end you have a small set of mostly fantastic examiners who can issue logical, practical rejections without getting caught up having to write 100 pages of mostly copy pasted bullshit for every action. Compare this to the USPTO where I can hardly even understand the logic behind half of the actions I get from them. It's an army of morons producing garbage.

A counterpoint is that shifting the burden gives too much power to the examiner. But this already happens in the US. Bad examiners allow bad patents and are immune. Bad examiners issue bad rejections and their supervisor backs them up every time.

Really the only people you have to blame for bad patents is bad examiners. Fire the least competent 70% and reduce the burden on the ones who are left. Increase hiring and training standards.

Zo fucked around with this message at 06:09 on Dec 20, 2013

KernelSlanders
May 27, 2013

Rogue operating systems on occasion spread lies and rumors about me.

Zo posted:

Really the only people you have to blame for bad _______ is bad _______. Fire the least competent [x]% and reduce the burden on the ones who are left. Increase hiring and training standards.

Edited slightly you have just fixed every problem with all levels of government. The same could be said for the education system, or police brutality, or for that matter Congress.

Kalman
Jan 17, 2010

Well, yes, the people to blame for bad laws ARE bad Congressmen and the appropriate response is to fire them and replace them with good ones.

It's not like Zo was using a different system as an example of how it would work or anything. (It would need to be accompanied by a change from "examiner must show why it isn't patentable or it issues" to "applicant must show why it is or it doesn't issue" in order to really be effective.)

Zo
Feb 22, 2005

LIKE A FOX

KernelSlanders posted:

Edited slightly you have just fixed every problem with all levels of government. The same could be said for the education system, or police brutality, or for that matter Congress.

Except it's very feasible to reduce the individual examiner's burden, thus making this suggestion even possible, unlike your other examples. I mean, for education, how would you reduce the burden on each teacher while firing a large portion of them? Impossible. Same with cops etc.

With examiners it's very easy, all you do is:

Kalman posted:

(It would need to be accompanied by a change from "examiner must show why it isn't patentable or it issues" to "applicant must show why it is or it doesn't issue" in order to really be effective.)
Like I said above, this is already how the JPO works. It's a proven system.

(Full disclosure I work as a patent agent handling mostly US and JP cases, with a small number of EP, KR, and CN cases. The USPTO examiners are by far the least competent of the bunch in my admittedly anecdotal experience.)

Meatbag Esq.
May 3, 2006

Hmm which internet meme should go here again?

Zo posted:

(Full disclosure I work as a patent agent handling mostly US and JP cases, with a small number of EP, KR, and CN cases. The USPTO examiners are by far the least competent of the bunch in my admittedly anecdotal experience.)


That said, examination quality has improved by leaps and bounds in the last five years or so. Now when I receive an office action the art is actually on point whereas in the past it has been "wtf these aren't even related".

WhiskeyJuvenile
Feb 15, 2002

by Nyc_Tattoo
Hiring freeze + poo poo economy means enough fresh-out-of college examiners stuck around long enough to learn the law and the art?

KernelSlanders
May 27, 2013

Rogue operating systems on occasion spread lies and rumors about me.
I'm sure it's been discussed somewhere, but the google hits I get are a bit academic. What are the implications of 3d printing and contributory infringement on a practical level? Is it possible that we'll see patent holders going after the printer companies, part file uploaders, hosting sites, or end users? I assume there's some patent version of the Sony standard in copyright law that protects the printer manufacturer, but trying to send cease-and-diciest letters to hosing sites seems like it's not going to get you very far.

hobbesmaster
Jan 28, 2008

KernelSlanders posted:

I'm sure it's been discussed somewhere, but the google hits I get are a bit academic. What are the implications of 3d printing and contributory infringement on a practical level? Is it possible that we'll see patent holders going after the printer companies, part file uploaders, hosting sites, or end users? I assume there's some patent version of the Sony standard in copyright law that protects the printer manufacturer, but trying to send cease-and-diciest letters to hosing sites seems like it's not going to get you very far.

3d printers are nothing new fundamentally and have been around for decades now. CNC mills have been around for decades further, they're merely ways to build stuff.

Nintendo Kid
Aug 4, 2011

by Smythe

KernelSlanders posted:

I'm sure it's been discussed somewhere, but the google hits I get are a bit academic. What are the implications of 3d printing and contributory infringement on a practical level? Is it possible that we'll see patent holders going after the printer companies, part file uploaders, hosting sites, or end users? I assume there's some patent version of the Sony standard in copyright law that protects the printer manufacturer, but trying to send cease-and-diciest letters to hosing sites seems like it's not going to get you very far.

If you're selling bootleg 3d models you're definitely engaging in copyright infringement. If you sell bootleg stuff you made with 3d printing, same thing. And if you're running a site that does either, going to be the same.

KernelSlanders
May 27, 2013

Rogue operating systems on occasion spread lies and rumors about me.

hobbesmaster posted:

3d printers are nothing new fundamentally and have been around for decades now. CNC mills have been around for decades further, they're merely ways to build stuff.

Perhaps I should have been more clear and said "cheap, widely available 3d printers" rather than "3d printers". CD writers were around for two decades before they became cheap enough that someone could copy one in their home, and it was cost that made home-grown piracy (as opposed to professional bootleggers) a challenge for existing copyright law.

x-post edit:

Install Windows posted:

If you're selling bootleg 3d models you're definitely engaging in copyright infringement. If you sell bootleg stuff you made with 3d printing, same thing. And if you're running a site that does either, going to be the same.

I'm not talking about the copyright of the 3d model itself. What I mean is let's say person A makes a model of a dohicky that infringes on company X's patent and uploads it to website run by person B. Person C downloads the model (with permission from person A) and makes prints it. Who's infringing?

KernelSlanders fucked around with this message at 04:48 on Jan 6, 2014

Kalman
Jan 17, 2010

There are some possible implications from patent for using 3d printers, particularly open source ones which generally don't clear their systems from a patent perspective, since use can infringe a patent and some of the 3d printing patents deal with the print process rather than the machinery. Gerard Magliocca just finished/is finishing an article on the IP issues in 3d printing (I believe cowritten with Devin Desai) if you want a lengthier treatment.

computer parts
Nov 18, 2010

PLEASE CLAP

KernelSlanders posted:

Perhaps I should have been more clear and said "cheap, widely available 3d printers" rather than "3d printers". CD writers were around for two decades before they became cheap enough that someone could copy one in their home, and it was cost that made home-grown piracy (as opposed to professional bootleggers) a challenge for existing copyright law.

3D printers are unable to reliably replicate something unless it's made out of cheap plastic, so there's a fundamental difference between CD writers and 3D printers.

But assuming for some reason it was possible to print the latest toy for only the cost of materials then the following situation would probably happen:

- people who are technically challenged (for lack of a better term) won't care because it's illegal and as a result is hard to do, they will buy the brand model

- people who make these toys will either be nerdy and/or will be looking to sell these off for cheap

- companies will crack down on the previous people (mostly the sellers) and it's perfectly legal to do so for a wide variety of reasons that are well established

- if, for some reason that's not possible then companies will simply add a trinket which is not easily copyable (think like a certificate of authenticity, with a special seal that can't be reproduced easily) and advertise that this is the "real deal"

Nintendo Kid
Aug 4, 2011

by Smythe

KernelSlanders posted:

I'm not talking about the copyright of the 3d model itself. What I mean is let's say person A makes a model of a dohicky that infringes on company X's patent and uploads it to website run by person B. Person C downloads the model (with permission from person A) and makes prints it. Who's infringing?

I don't think you understand what you're talking about then. If the thing's design is protected and you sell ways to exactly copy it you're infringing and if you attempt to pass off 3d printed copies as genuine you're also infringing and also counterfeiting. And if you do anything to support those two things you're also committing a crime.

evilweasel
Aug 24, 2002

KernelSlanders posted:

I'm not talking about the copyright of the 3d model itself. What I mean is let's say person A makes a model of a dohicky that infringes on company X's patent and uploads it to website run by person B. Person C downloads the model (with permission from person A) and makes prints it. Who's infringing?

This is a little tricky because you're asking a patent question, not a copyright question. For patents, the information on how to build the patented item is public domain information (it must be disclosed to get the patent) - you're just not allowed to use it without a license during the patent period. That's different from copyright where it's the copying and distributing that's not allowed. I think this would be a very fact-specific case about exactly what the person distributing the model was doing and why.

WhiskeyJuvenile
Feb 15, 2002

by Nyc_Tattoo
e: nm

Kalman
Jan 17, 2010

KernelSlanders posted:

I'm not talking about the copyright of the 3d model itself. What I mean is let's say person A makes a model of a dohicky that infringes on company X's patent and uploads it to website run by person B. Person C downloads the model (with permission from person A) and makes prints it. Who's infringing?

Everyone.

A is probably committing infringement by inducement. (35 USC 271(b)). There's some requirements for this that makes it more complicated, but that's why A will get sued.
Website B is potentially liable for contributory infringement. (35 USC 271(c)). Again, more complicated than just that, particularly given the statutory text requiring knowledge, but that'd be why they'd get sued.
Person C is potentially liable for direct infringement for either practicing a patented process/method or for creating a patented apparatus. (35 USC 271(a)). They're by far the easiest one to sue.

Who gets sued? Depends on who company X wants to sue, who has money, who's reachable by US legal process, etc. But generally you'd sue A - C is an end user and end user lawsuits aren't something most large companies want to engage in, particularly given the example the RIAA gave as to how it poisons your public image, and B is trickier to prove infringement than A. That said, if B was, say, Google, and A was WhiskeyJuvenile, you probably sue B.

wateroverfire
Jul 3, 2010

Kalman posted:

Who gets sued? Depends on who company X wants to sue, who has money, who's reachable by US legal process, etc. But generally you'd sue A - C is an end user and end user lawsuits aren't something most large companies want to engage in, particularly given the example the RIAA gave as to how it poisons your public image, and B is trickier to prove infringement than A. That said, if B was, say, Google, and A was WhiskeyJuvenile, you probably sue B.

Wouldn't you lose because B is a service provider covered by the safe harbor provisions of the DMCA?

Kalman
Jan 17, 2010

wateroverfire posted:

Wouldn't you lose because B is a service provider covered by the safe harbor provisions of the DMCA?

What part of the DMCA safe harbors do you think covers patent infringement? The safe harbors apply solely to copyright infringement.

Edit: maybe a CDA 230 immunity defense would work, though I think it wouldn't, since publisher and speaker are terms of art which aren't really relevant to the patent context.

Kalman fucked around with this message at 16:17 on Jan 7, 2014

wateroverfire
Jul 3, 2010

Kalman posted:

What part of the DMCA safe harbors do you think covers patent infringement? The safe harbors apply solely to copyright infringement.

Edit: maybe a CDA 230 immunity defense would work, though I think it wouldn't, since publisher and speaker are terms of art which aren't really relevant to the patent context.

I'm dumb and was thinking copyright when you were talking about patent infringement. Ignore me. :confused:

KernelSlanders
May 27, 2013

Rogue operating systems on occasion spread lies and rumors about me.
Regarding 35 USC 271(c) liability, would a design file be considered " a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process"? It's not really a component, composition, material, or apparatus.

Kalman
Jan 17, 2010

KernelSlanders posted:

Regarding 35 USC 271(c) liability, would a design file be considered " a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process"? It's not really a component, composition, material, or apparatus.

Note that software/hardware combos can be claimed as an apparatus, so don't think of it as. Ring solely physical items - it really just means a thing that is, rather than a thing you do, or a materials science/pharma type composition of matter.

I don't think there's case law on 3d printer design files, but when there is, design files for 3d printing would likely be interpreted to meet the meaning of a component of a patented machine, as the idea here is to make people liable when they don't supply the entirety of the patented machine but only key components of the infringing machine. The fact that it is a digital file wouldn't seem to preclude it from meeting the statutory language, especially the material for use in practicing a patented process (where there's a claim to method of manufacture of the apparatus.)

(Alternately, it'd be inducement liability under 271b.)

WhiskeyJuvenile
Feb 15, 2002

by Nyc_Tattoo
but see Microsoft v. AT&T, 550 U.S. 437 (2007)

Kalman
Jan 17, 2010


That's dealing with 271f and extraterritoriality, though, and wouldn't really be relevant to the question being asked. (My answers all assumed everyone was in US territory.). F always gets interpreted more narrowly than c because of the general concern over extraterritoriality.

Better case would be MS v Lucent, 580 f3d 1301 (fed Cir 2009): an infringing software instruction suitable only for an infringing use falls within the scope of 271c. MS tried to argue their software components weren't material or apparatus under the meaning of 271c. They, uh, lost.

Since it's fairly easy to argue that, for legal purposes (I'm aware there are technical distinctions), a 3d printer model is a program designed to be run on a general purpose manufacturer (a 3d printer) in the same way that software is designed to be run on a general purpose processor, I'd say that it would be a decent argument to make that 3d model files of patented devices can trigger 271c liability (assuming other requirements met).

I'll leave off with a quote from House Judiciary about the language of 271c when it was passed: "one who makes a special device constituting the heart of a patented machine and supplies it to others with directions (specific or implied) to complete the machine is obviously appropriating the benefit of the patented invention."

I think copyright will be a much bigger IP issue for sites like Thingiverse than patents will be, but I wouldn't discount the potential for patent disputes in 3D printing (entirely aside from the existing ones dealing with patents on the printing process.)

Kalman
Jan 17, 2010

Patent reform legislation continues its slow slog through Senate Judiciary. Nothing interesting to report there.

However, on the court side of things, several patent cases will be heard by the court this term.

First, Alice v. CLS Bank has been scheduled for argument on March 31. This is the one that deals with whether an invention that otherwise meets requirements (I.e. is new and non obvious) but is entirely software is patentable. Kind of an important one.

Second, Akamai v. Limelight will deal with the standard for divided infringement. The basic issue here is when you have a patent which requires several things to happen (for example, transmitting X and receiving Y) and those steps are performed by different people, who infringes, if anyone, and under what circumstances. For example, if I transmit X and you receive Y but you're only receiving y because I paid you to do it, is the patent infringed? This is actually a pretty interesting/surprisingly important area of law, mostly because a lot of patents are poorly written and require involvement by multiple actors, but won't have the same broad applicability as Alice.

Third, Nautilus vs. Biosig will deal with the standard for indefiniteness. In other words, how to tell if the words in a claim have enough meaning that the patent is valid. This one could be important or not, depending on what the ruling is.

Munkeymon
Aug 14, 2003

Motherfucker's got an
armor-piercing crowbar! Rigoddamndicu𝜆ous.



Kalman posted:

Instead of trying, again, to get you to see why your idea of banning software patents is fatally flawed, I'm going to point you to a paper which does a good job summarizing why you're wrong to think it would fix anything or even be possible (page 5). Basically: defining "software" in such a way that you don't wind up with either "everything is a software patent" or else "it's trivial to write a patent that covers software that doesn't meet the definition" is probably impossible.

Still don't totally buy it. Just because law professors and legislators haven't come up with a good definition of software doesn't mean it can't be done, but at least now I get why it's so hard to treat it totally differently: treaties. After reading that and re-reading some of the thread (I've been gone a while - I'm sure you missed me) I'm actually confused as to why I can't patent A Method or Process for Producing the Melody for Twinkle Twinkle Little Star on a Piano With Ones' Own Hands because of how absurdly loosely defined Method or Process seems to be. At least I think that's where that question about the configuration of switches was going? That's somehow a Method or Process under the law? If so, that's loving nutty.

quote:

That's a judgment coming from a group of people who agree with you that software is special. (I don't find that part of their argument to be convincing - for instance, they note that software has a first mover advantage as part of why software's short life cycle is special, but first mover advantage is generally greater in markets with longer life cycles because they generally also have longer development cycles).

Yes, first-movers getting potentially eternal lock-in is part of how software is special. That's getting slightly better in some ways because of batshit-crazy-from-a-business-standpoint stuff like Google's Takeout feature, but I'd almost be willing to bet that your firm uses a Lotus product because I've heard they have insanely persistent lock-in in the legal industry.

quote:

It also proposes some actually useful solutions (pages 7-11). Pay particular attention to Lemleys approach on 7.

Yeah, I recognize it from several posts but didn't quite understand what it meant. I think he underestimates the cost to society of clearing the bullshit patent backlog, but I can see how it'd work now. I like Vermont's idea, too.

Kaal
May 22, 2002

through thousands of posts in D&D over a decade, I now believe I know what I'm talking about. if I post forcefully and confidently, I can convince others that is true. no one sees through my facade.
Hopefully it's ok that I attempt resurrecting this thread. TechDirt posted an article today wherein the USPO granted Amazon a patent for taking photographs in front a white background, and I was absolutely mystified as to how that could pass scrutiny. Is this another case where the patent is limited to an extremely specific set of measurements (i.e. the camera must be using an 85mm lens and have an ISO of 320) or should I just start sending checks to Amazon?

TechDirt posted:

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.

I am not really sure how to tag this other than a big #fail for the USPTO, or a huge Kudos for Amazon's IP attorneys. In a patent simply called Studio arrangement Amazon took IP ownership on what we all call shooting against a seamless white backdrop.
Here's a photo of Amazon's bold new photography concept, which pretty much looks like every photo studio in the history of photo studios.

There's plenty of technical text to separate Amazon's white-backdropped photo studio from the thousands in existence prior to 2011 (the date of filing), which shows just how innovative Amazon's concept is:
a background comprising a white cyclorama; a front light source positioned in a longitudinal axis intersecting the background, the longitudinal axis further being substantially perpendicular to a surface of the white cyclorama; an image capture position located between the background and the front light source in the longitudinal axis, the image capture position comprising at least one image capture device equipped with an eighty-five millimeter lens, the at least one image capture device further configured with an ISO setting of about three hundred twenty and an f-stop value of about 5.6...
Amazon does more explaining later on, differentiating its proprietary white-background photo thing from others exactly like it by pointing out that prior art often refers to image retouching, green screens or other forms of image manipulation. Amazon's technique is apparently the purest of the pure, being only the photographer, the photographed object/person, the white background, a number of front lights/back lights and some sort of object separating the subject from the ground below it.

How does this breakthrough work in practice? Glad you asked.

1. Turn back lights on.
2. Turn front lights on.
3. Position thing on platform.
4. Take picture.

Now, we'll note that in all fairness (HAHAHAHA), Amazon filed this application back in the early days of photography, circa 2011. Nearly three years later, that foresight has paid off, and Amazon can now corner the market on taking pictures in front of a white background.

Currently, prior art input is being sought at Stack Exchange's Ask Patents, but questions about the patent's viability may come down to the very specific specifics listed above. On one hand, the listed stipulations make it easier to route around. On the other hand, two of the specifics are hedged with the word "about," leaving only the 85mm lens specification as truly "unique."

Is Amazon about to start sending demand letters to photo studios? That seems unlikely. But it does raise the question as to why this patent was sought in the first place. If this is how Amazon performs its product photography, it seems like it could have been handled in an internal document, rather than pushed through the patent office. Even if it's never used for trolling, it's still on record as "something Amazon thought up," rather than nowhere to be found as studio setups for shooting against a white background have been in use for several decades.

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.

http://www.techdirt.com/articles/20140507/04102327144/us-patent-office-grants-photography-against-white-background-patent-to-amazon.shtml

NJ Deac
Apr 6, 2006


Kaal posted:

Hopefully it's ok that I attempt resurrecting this thread. TechDirt posted an article today wherein the USPO granted Amazon a patent for taking photographs in front a white background, and I was absolutely mystified as to how that could pass scrutiny. Is this another case where the patent is limited to an extremely specific set of measurements (i.e. the camera must be using an 85mm lens and have an ISO of 320) or should I just start sending checks to Amazon?

Want to know what the patent covers? Flip to the end and read the section called "claims". That section describes the extent of the coverage obtained by the patentee after fighting through the patent office. Unless you do EVERYTHING described in a claim, you don't infringe the patent. As such, generally the longer the claim, the narrower the coverage granted by the patent. In this case, the broadest claims are nearly an entire column long, likely making this a very weak patent.

A common mistake made by all of these "worst patent ever!" articles is that they only look at the specification, but ignore all of the coverage the patent owner had to give up during prosecution to get the case allowed.

hobbesmaster
Jan 28, 2008

Kaal posted:

Hopefully it's ok that I attempt resurrecting this thread. TechDirt posted an article today wherein the USPO granted Amazon a patent for taking photographs in front a white background, and I was absolutely mystified as to how that could pass scrutiny. Is this another case where the patent is limited to an extremely specific set of measurements (i.e. the camera must be using an 85mm lens and have an ISO of 320) or should I just start sending checks to Amazon?

That is a very narrow patent.

WhiskeyJuvenile
Feb 15, 2002

by Nyc_Tattoo
For reference:

1. A studio arrangement, comprising:
a background comprising a white cyclorama;
a front light source positioned in a longitudinal axis intersecting the background, the longitudinal axis further being substantially perpendicular to a surface of the white cyclorama;
an image capture position located between the background and the front light source in the longitudinal axis, the image capture position comprising at least one image capture device equipped with an eighty-five millimeter lens, the at least one image capture device further configured with an ISO setting of about three hundred twenty and an f-stop value of about 5.6;
an elevated platform positioned between the image capture position and the background in the longitudinal axis, the front light source being directed toward a subject on the elevated platform;
a first rear light source aimed at the background and positioned between the elevated platform and the background in the longitudinal axis, the first rear light source positioned below a top surface of the elevated platform and oriented at an upward angle relative to a floor level;
a second rear light source aimed at the background and positioned between the elevated platform and the background in the longitudinal axis, the second rear light source positioned above the top surface of the elevated platform and oriented at a downward angle relative to the floor level;
a third rear light source aimed at the background and positioned in a lateral axis intersecting the elevated platform and being substantially perpendicular to the longitudinal axis, the third rear light source further positioned adjacent to a side of the elevated platform; and
a fourth rear light source aimed at the background and positioned in the lateral axis adjacent to an opposing side of the elevated platform relative to the third rear light source; wherein a top surface of the elevated platform reflects light emanating from the background such that the elevated platform appears white and a rear edge of the elevated platform is substantially imperceptible to the image capture device; and
the first rear light source, the second rear light source, the third rear light source, and the fourth rear light source comprise a combined intensity greater than the front light source according to about a 10:3 ratio.

e: Take a look at the prosecution history.

WhiskeyJuvenile fucked around with this message at 03:40 on May 9, 2014

Zo
Feb 22, 2005

LIKE A FOX
Tech sites are uniformly totally worthless for any patent related news.

hobbesmaster
Jan 28, 2008

Like, that patent is so narrow you might have trouble violating it intentionally.

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KernelSlanders
May 27, 2013

Rogue operating systems on occasion spread lies and rumors about me.
Is there some authority on what "about" means in reference to ISO settings and f-stops, or in these super precise version of a common thing patents generally?

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