Click Click Boom

Kiwi Peter Calveley has defeated Amazon.com, and the company's patent on 1-Click has been mostly turn up. Some background:

Amazon.com's 1-Click patent became famous when it sued rival bookseller Barnes & Noble.com in 1999. It alleged infringement for allowing B&N customers to make repeat purchases just by clicking on a product. B&N argued that the patent should be declared invalid but a court imposed an injunction, requiring it to change its shopping process. The companies later agreed settlement terms. Amazon.com has since licensed the patent to other retailers, including Apple.

Calveley's victory:

There are 26 claims in Amazon.com's patent for Method and system for placing a purchase order via a communications network, better known as its 1-Click patent. Only five of the claims – numbered six to 10 – have been deemed "patentable and/or confirmed". Twenty-one others were rejected.

Read the whole tale: It's ridiculous what Amazon was claiming, and it makes you wonder who, exactly, Barnes and Noble hired to represent them in their 1999 suit. Calveley's blog is here.

Comments

[pistofnick]

It also makes you wonder who is approving these patents.

[Dave Woycechowsky]

Here is the claim that was apparently confirmed:

6. A client system for ordering an item comprising:

an identifier that identifies a customer;
a display component for displaying information identifying the item;
a single-action ordering component that in response to performance of only a single action, sends a request to a server system to order the identified item, the request including the identifier so that the server system can locate additional information needed to complete the order and so that the server system can fulfill the generated order to complete purchase of the item; and
a shopping cart ordering component that in response to performance of an add-to-shopping-cart action, sends a request to the server system to add the item to a shopping cart.

[Syloson of Samos]

Ahh yes, Army of Darkness.

[Dave Woycechowsky]

It also makes you wonder who is approving these patents.

. . . according to the post Barnes & Noble, Apple and other retailers.

[Pro Libertate]

Dave,

I though B&N got smacked down in an Amazon.com lawsuit on this very patent. For the most part, business process patents are the Devil's work

[Dave Woycechowsky]

I though B&N got smacked down in an Amazon.com lawsuit on this very patent.

B&N was subject to a preliminary injunction. Which means that they would have had to switch to 2-click ordering while fighting the patent. (I haven't done the research, but presumably two click ordering was not covered by the patent and therefore not prohibited by the injunction.) Instead of temporarily switching to 2-click ordering, they decided to give up and pay license fees.

I think choice that is better characterized as approving the patent, rather than fighting it.

[Drawn Asunder]

Wanna really f-up your order, try to use amazon prime and 1-click on the same transaction: no worky

[Episiarch]

It's not an AOD reference, it's a Saliva reference.

Unless I am wrong, in which case Weigel can correct me.

[Dave Woycechowsky]

Not only that, it looks like Barnes and Noble even got the preliminary injunction overturned on appeal in 2000. This blog entry is misleading because:

(1) It should call the "preliminary injunction" a "preliminary injunction" and not merely an "injunction." "Injunctions" are generally understood to be permanent or final injunctions, which are an altogether different and more serious thing.

(2) B&N even got the preliminary injunction reversed.

For the most part, HnR's reporting on patent law is the Devil's work. It makes ppl think stoopidly about patents.

[The Extispicator]

I just patented reading. You all owe me big time.

[Warren]

It's ridiculous what Amazon was claiming

Well yes, it is ridiculous, but no more so than 98% of all other patent claims. Patent law has gotten SO out of control. The whole thing needs to be abolished.

[J sub D]

I just patented reading. You all owe me big time.

I patented comprehension years ago. Dan T. refuses to pay and you can see what that leads too.

[carrick]

Patent law has gotten SO out of control. The whole thing needs to be abolished.

The first point does not directly imply the second.

[Pro Libertate]

I just patented the space.

[Dave Woycechowsky]

The thought of Warren reading patent claims in a non-superficial way is amusing to me.

[Urkobold?]

PROLIBERMINION,FEELTHEURKOBOLD'SDEFIANCE!

[Minion of URKOBOLD]

PEEK A BOO KORN SYRUP BOY.

YOU HAVE MUCH TO LEARN IN THIS WORLD. IT IS, HOWEVER, ENCOURAGING TO SEE HOW MUCH OF THE ENTHUSIASM OF YOUTH YOU HAVE.

JUST WAIT UNTIL THE YEARS WEIGH YOU DOWN AND THAT ENTHUSIASM GOES AWAY.

UNTIL THEN, ENJOY YOUR YOUTH!

[lunchstealer]

No boom today. Boom tomorrow. There's always boom tomorrow.

[BOUNCY BOUNCY]

BOOM BOOM NOW. SNU SNU NOW, TOO.

[de stijl]

I just patented the fuck out of oxygen! Suck it, bitches!

[Rhywun]

it makes you wonder who, exactly, Barnes and Noble hired to represent them in their 1999 suit

"Hi, I'm Lionel Hutz!"

[Pro Libertate]

de stijl,

Don't be silly--you can't patent oxygen. It's a naturally occurring element.

However, you can patent BREATHING! HA, HA, HA!

[VM]

I PATENTED BATIN!!!!!

boo yah!!!!!!

[ChicagoTom]

I PATENTED BATIN!!!!!

Then I think I owe quite a bit in royalties

[Wonder No More]

it makes you wonder who, exactly, Barnes and Noble hired to represent them in their 1999 suit

United States Court of Appeals for the Federal Circuit, AMAZON.COM, INC., Plaintiff-Appellee, v. BARNESANDNOBLE.COM, INC. and BARNESANDNOBLE.COM, LLC, Defendants-Appellants.
. . . Jonathan A. Marshall, Pennie & Edmonds LLP, of New York, New York, argued for defendants-appellants. With him on the brief were William G. Pecau, and Steven I. Wallach. Of counsel on the brief were Michael N. Rosen, and Mark J. Sugarman, Robinson Silverman Pearce Aronsohn & Berman LLP, of New York, New York. Of counsel was Stanton T. Lawrence III, of Pennie & Edmonds, of Washington, DC.

. . .DECIDED: February 14, 2001 . . . After a careful review of the district court's opinion, the record, and the arguments advanced by the parties, we conclude that BN has mounted a substantial challenge to the validity of the patent in suit. Because Amazon is not entitled to preliminary injunctive relief under these circumstances, we vacate the order of the district court that set the preliminary injunction in place and remand the case for further proceedings.

[Minion of URKOBOLD]

SUCH YOUTH, KORN SYRUP BOY. SUCH YOUTH.

*TSK TSK*

[thoreau]

What carrick said. I don't claim to know much about patents, but I do know that saying "This system is flawed" does not automatically mean "This system must be abolished." There's a range of conclusions that one could draw from the first statement, depending on the facts offered in support of the first statement.

[VM]

Fear not, Chicago Tom!

We'll let you know the next Chicago gathering, and call it even. 🙂

now hang on. Time to get a quick one out before heading to the gym.

[Pro Libertate]

This must be just my skewed, in-house counsel perspective, but how many millions did B&N pay to get to do what it should've been able to do but for the silly PTO granting a BP-patent on 1-click?

[Pro Libertate]

Now saying that I don't like business process patents or the PTO's talent for ignoring prior art, especially with software, is not the same as repudiating the patent system. It's generally a good thing. Coming up with new processes often takes a HUGE investment that people wouldn't bother with if they didn't get the patent monopoly.

[Mo]

Isn't it possible that rather than B&N having shitty representation judges have a better understanding of the internet and technology? Maybe the tech ignorant judge in 1999 thought, "Wow, this 1-click shopping is amazing, it has to be hard to think of!" while modern judge looked at it and rightly thought, "That's actually a pretty simple concept, what an idiotic patent."

[Dave Woycechowsky]

This must be just my skewed, in-house counsel perspective, but how many millions did B&N pay to get to do what it should've been able to do but for the silly PTO granting a BP-patent on 1-click?

Maybe B&N got a sweet deal?

Maybe B&N, at the time they abandoned their defense, B&N thought the patent would be a good tool to exclude other, smaller businesses?

I also have to wonder why B&N didn't just use two clicks. The patent wasn't filed until 1997. Presumably there were reasonably efficient ways to buy things on the Internet before that. Why was it considered such a competitive handicap for B&N to just practice the prior art?

[Dave Woycechowsky]

"Wow, this 1-click shopping is amazing, it has to be hard to think of!" while modern judge looked at it and rightly thought, "That's actually a pretty simple concept, what an idiotic patent."

You are supposed to put yourself in the shoes of one of skill in the art "at the time the invention was made." All patents seem obvious in hindsight. If 1-click was so obvious in 1997, then why was it so rare in practice at that time?

besides, patents aren't supposed to be upheld or denied based on whether they are simple or complex. They are supposed to be upheld or denied based on others had thought of the thing.

[Gimme Back My Dog]

I agree with DW. The best patents seem obvious in retrospect. 1-click did require amazon to develop technology which was not there previously.

side note to asunder: amazon has added a "1 click with free two day shipping" button at the top of the page for AP members.

[ed]

Don't know nothin' 'bout patents, but don't they usually refer to tangible objects? With fancy drawings and things to prove Original Creation? Wasn't Amazon's "patent" merely a clever marketing tool? If I find a nice corner in a highly trafficed metropolitan neighborhood to set up my hot dog stand, can I patent it? I am dubious. But then, are they arguing an original software? Intellectual property? A product of the mind that no one else thought of? Maybe then they have a case. Argue. I mean discuss. Whatever.

[Dave Woycechowsky]

Don't know nothin' 'bout patents, but don't they usually refer to tangible objects?

1. No, not necessarily. Processes have long been patentable and still are.

2. The server that runs 1-click software is a tangible object. Even drilling down to the level of the small magnetic and/or opticals domains in which the software is stored, there is still what may fairly be characterized as "tangibility."

[Sandy]

Why was it considered such a competitive handicap for B&N to just practice the prior art?

Same reason you don't use pen and paper instead of a computer.

[Sandy]

1-click did require amazon to develop technology which was not there previously.

No. They did something nobody thought users would trust a website to do. All enabling technologies were prior art (cookies, session tracking, user profiles including credit card info). The assembly was semi-novel, but largely because people had experiences of people mistakenly ordering 10,000 instead of 1,000 shares of a stock and being stuck by a judge with the result to make it worthwhile to implement it versus the cost.

They were wrong. Essentially Amazon patented legal risk.

[Dave Woycechowsky]

Same reason you don't use pen and paper instead of a computer.

I am comfortable that computers were considered patentable. Patentable over and over again at many margins. Arguably we wouldn't have them if they weren't.

[Brandybuck]

Libertarians and intellectual property: I am a fairly radical libertarian myself, which is why I get so frustrated when I see libertarians defending patents and copyrights. It's like the hear the word "property" and their brains shut off. They start treating them like they're morally equivalent to material property. They are not property, neither are they rights. They are government privileges. We should change their name to "intellectual priviledges" to make it clear. At best, patents and copyrights are compromises with statism.

Why are there no libertarians calling for the abolition of intellectual property laws? I see a few leftists arguing against them, but not one libertarian.

[Dave Woycechowsky]

I am a fairly radical libertarian myself

Flight 93 was shot down.

[The Wine Commonsewer]

Why are there no libertarians calling for the abolition of intellectual property laws?

Are you kidding? Half the Reason staff uses printed and bound arguments in favor of intellectual property rights to fuel their home heating furnaces all winter long. These guys hate IP.

I don't agree with them although I am highly in favor of major revisions in IP law.

[The Wine Commonsewer]

That's actually a pretty simple concept, what an idiotic patent

Every time I use the keyless chuck to tighten up a drill bit I think to myself, this is such a simple concept, why didn't anyone think of it 30 years ago?

The difference being, I think, that my Makita has one and so does my REAL MAN drill, the DeWalt with the blown 327 pushing 435 horsepower. Each works a little differently and each must surely have a patent.

[Joshua Holmes]

They are government privileges.

They are recognized by governments and enforced in government courts, but so is real property.

[Sandy]

Wow, practicing law with a computer to record notes is patentable?

You are so sued.

[Sandy]

I think I'm making progress in educating Dave on patent law.

[teh]

This patent is pretty mild compared to a lot of software patents out there. I think Real Networks used to have / still has a patent on transferring video files over the internet. Obviously they didn't invent the internet or video files, and transferring a specific type of file over the internet isn't exactly an invention, but nonetheless they had it.

Major tech companies like Microsoft, IBM, etc. supposedly own so many software patents that it would be impossible for them to compete with each other without violations. (I say supposedly because I'm not sure if anyone has ever done a full in-depth analysis of their patent holdings.) While these companies can work out deals to share their IP with each other, it creates a barrier to entry for new companies entering into their markets since they have to risk violating these patents when they make competing products. Microsoft, for instance, makes insinuations every once in awhile that Linux violates their patents, which probably keeps some companies from using it since they can't be sure it's going to survive legal challenges over the long term.

[stuartl]

This must be just my skewed, in-house counsel perspective, but how many millions did B&N pay to get to do what it should've been able to do but for the silly PTO granting a BP-patent on 1-click?

it creates a barrier to entry for new companies entering into their markets since they have to risk violating these patents when they make competing products...

The patent examiners that approve these patents are typically below average scientists or engineers who only hold bachelors degrees. They are biased towards granting patents since nothing is obvious to them and they are rarely truly practitioners of the art. Companies try to file patents with ambiguous or unnecessarily complex wording (the single sentence requirement also leads to incomprehensibility). This makes it a crap shoot if a patent ever goes to court.

Large companies with in house lawyers may be able to afford pushing a product forward and taking on the risk, but small companies frequently don't bother. Even if you win in court, the profit gets sucked up by both the lawyers and the opportunity costs of wasting scarce scientific or engineering resources. The cost is just too high. The typical solution is to provide customers with lower quality product. Next time you use an interface that sucks, remember the root cause may be a lousy patent, not a lousy engineer.

I once had to drop several features from a product because a competitor had patented storing audio files "in regularly sized blocks" for that kind of product. The examiner was too overworked or too dense to realize that this way of storing audio was obvious, common place, and the nature of how disk storage works. We probably would have won had it gone to court, but it wasn't worth the cost of winning. So our customers got a worse system and we lost some sales to the competitor.

[T]

IBM's patent portfolio is insanely large. I don't think, at this late date, that it's even possible to do an analysis of it.

The larger companies I've worked for in the oil industry patent everything they feasibly can. One reason is so that when a competitor threatens a patent infringement lawsuit, you can turn around and threaten to slap them with one as well. I was involved in the engineering side of one of lawsuits at two different companies. The initial lawsuit named 4 parties on the infringement claim. Two of the companies settled out of court by threatening the original plaintiff with multiple infringement lawsuits in response.

[jkii]

This is from http://www.bitlaw.com:

In the early 1990s, the Federal Circuit (the highest court for patent matters other than the Supreme Court) tried to clarify when a software related invention was patentable. The court stated that the invention as a whole should be examined. Is the invention in actuality only a mathematical algorithm, such as a computer program designed to convert binary-coded decimal numbers into binary numbers? If so, then the invention is unpatentable. However, if the invention utilizes the computer to manipulate numbers that represent concrete, real world values (such as a program that interprets electrocardiograph signals to predict arrhythmia or a program that analyzes seismic measurements), then the invention is a process relating to those real world concepts and is patentable.

I find this astounding. A mathematician like Euler would get no legal protection for his work even though it penetrates just about everything we do with technology. It's just mathematics. But any hack with compiler or interpreter trying to hawk a product can a patent his algorithm that responds to a mouse click.

[Dave Woycechowsky]

One reason is so that when a competitor threatens a patent infringement lawsuit, you can turn around and threaten to slap them with one as well. I was involved in the engineering side of one of lawsuits at two different companies. The initial lawsuit named 4 parties on the infringement claim. Two of the companies settled out of court by threatening the original plaintiff with multiple infringement lawsuits in response.

The rough idea being that if you hire people to do inventive work, or else buy up the work of "wildcatter" inventors who have come up with something, then you deserve to have a defense.

The amount of money that changes hands at the out of court settlement can be, and often is, correlated to the relative merit of the patents involved. They usually keep this number a closely guarded secret. Sometimes it is zero and other times it is not.

[Dave Woycechowsky]

I find this astounding. A mathematician like Euler would get no legal protection for his work even though it penetrates just about everything we do with technology. It's just mathematics.

Of course, today, to the extent Euler's work is carried about by machines (called computers), it would be largely patentable. It is interesting to contemplate whether mathematics would have moved forward faster if it had been patentable in Euler's time.

[R C Dean]

I just patented reading. You all owe me big time.

What, you think we read before we start typing? Plenty of evidence to the contrary, I'd say.

[Lamar]

"I think choice that is better characterized as approving the patent, rather than fighting it."

Don't they mean who at the patent office is approving these things?

Anyhow, Pennie & Edmonds was a respected IP firm (though I suspect they folded into Jones Day because they hired too many engineer-lawyers and not enough I-can-speak-English lawyers), and Robinson Silverman is one of the snootiest firms in town. Dave Woycechowsky is right about B&N making a pure business decision. And sorry about the English speaking lawyer crack, surely you know what I'm talking about.

[Dave Woycechowsky]

Don't they mean who at the patent office is approving these things?

That was my point. B&N approved this patent. By buying into it.

Who cares about the fact that the patent office approved it? I think there are strong arguments for abolishing patent examination altogether. Non-lawyers have limited a capacity to answer legal questions. B&N, in consultation with their counsel, on the other hand, can answer legal questions in a rational way. Here B&N spoke by buying into the patent, despite the fact that the preliminary injunction (ooga booga!) was reversed.

I mean, unlike some on this thd, I don't have an opinion on whether claims 1-5 (currently under rejection by the patent office) of the 1-click patent are non-obvious. I also don't have an opinion on whether claims 6-10 (currently upheld by the patent office) are non-obvious. When the non-obviousness issue gets up to the Fed. Cir. in earnest, then I will probably agree with what they say. In the mean time, the most reliable indicators of whether this (admittedly simple) 1-click patent was a creative breakthru are what B&N's deciders say and what Apple's deciders say. They seem to think it is at least somewhat non-obvious. It would be interesting to know if they reserved the right to challenge the patent in their respective licenses. It would be interesting to know if they negotiated to get their royalties back upon a final determination that the claims are invalid. You can buy into a patent for a penny or a pound. Not sure how strongly the big players have bought in here.

[R C Dean]

B&N approved this patent. By buying into it.

Not really. B&N made a cost/benefit decision that it was cheaper to pay off Amazon than to fight them in court. Not really the same thing at all.

[Dave Woycechowsky]

Not really. B&N made a cost/benefit decision that it was cheaper to pay off Amazon than to fight them in court. Not really the same thing at all.

I am sure that is what B&N would say if you asked them. Because it is considered less embarrassing than saying, "our competitor had such a good patent we decided to buy in."

Still, because B&N only had to add a single click to its buying procedure to get around this patent, it is impossible for me to believe that costs were the issue. In other words, there was an essentially zero cost way to get around this patent, but B&N chose to buy in instead. To me, that means they liked the patent better as they got to know it better. Exactly how well they liked the patent would be more clear if they would show us the licensing contract. But they won't do that. I am sure they would rather have Weigs Weigel out playing the world's smallest violin for them here on teh corporatarian blogs.

I think it was Flavor Flav who once said, "don't believe the hype."

[lunchstealer]

here on teh corporatarian blogs.

Wait a second. These are supposed to be corporatarian blogs, but we're scoffing at BP patents. If BP patents were bad for corporations, they'd be out there arguing that the patent law be changed. But BP patents are good for corporations, because they raise the barrier to entry to small competitors. We're arguing against general corporate interests.

Are we corporatarians because we're ineffective at thwarting corporate interests?

[Dave Woycechowsky]

Are we corporatarians because we're ineffective at thwarting corporate interests?

Corporatarians have mixed feelings on patents. I think they like them when the patents can help stifle competition, as in the pharmaceutical sector. I think they don't like them to the extent that they exalt qualitative technical achievement and make it seem like is more to good business practice than moving money around wisely and importing the cheapest pHd's and janitors you can find on the international market.

I also have mixed feelings on patents, but for somewhat different reasons. Nevertheless, it is fun to discuss patents, especially, here on teh corporatarian blogs because the mixed feelings that some people have can lead them to be more open minded than they usually are.

I mean, when even T. says "I don't know much about this topic" you know it is one of those magical teachable moments that I usually have to work so hard to make happen.