Kuro5hin: The Patent Anaconda

> http://www.kuro5hin.org/story/2005/12/4/45354/8981


The Patent Anaconda (Internet
[http://www.kuro5hin.org/section/internet])


By myrtleglove (http://www.kuro5hin.org/user/myrtleglove)

Mon Dec 5th, 2005 at 03:06:38 PM EST
	

Of all the companies seeking an Intellectual Property
stranglehold on the Internet, one takes the prize for sheer gall.

Although it escaped public notice at the time (perhaps because it
was published on September 11, 2001), Amazon.com once applied for
a US trademark (Serial Number 75765366) on the "0-click", not
knowing that the concept would soon appear on the net as a joke
(http://slashdot.org/features/00/10/08/0419212.shtml).

Software Patents

The inventor of the World Wide Web, Tim Berners-Lee, once said
that some patents combine "well-known techniques in an apparently
arbitrary way, like patenting going shopping in a yellow car on a
Thursday." The fact that the USPTO actually granted a large
number of these patents (despite a requirement to examine them
for obviousness) was one of the major issues of the dot-com
era.This has often been attributed to the lack of USPTO resources
for finding prior art. As the vast majority of knowledge about
software was either part of the undocumented public knowledge, or
stored in obscure places, it wasn't usually considered by patent
examiners.

The situation has improved a little since the 1990s. A number of
software prior-art databases have arisen. The USPTO now
encourages its examiners to search a variety of prior art sources
such as the wayback machine (http://www.archive.org/). Companies
such as IP.com (http://www.ip.com/) now provide searchable
databases of "defensive publications" which also allow customers
to post discoveries to prevent their patenting by others.

However, when the first wave of e-commerce patents hit the USPTO,
they were left floundering. It is arguable whether the quality of
examination has really improved since then, as patents are still
being issued that raise eyebrows amongst software professionals.
For example, Microsoft's XML patent has come in for a fair amount
of criticism. The Foundation for a Free Information
Infrastructure (http://www.ffii.org/) have shown how it is just
about impossible to conduct e-commerce without infringing some
patent or the other (http://webshop.ffii.org/) (even in Europe,
which supposedly has much greater restrictions on the patenting
of software).

Nonetheless, one patent continues to stand out as the epitome of
restrictive Internet patents.

The One-Click Patent

The "One Click" patent
(http://patft.uspto.gov/netacgi/nph-Parser?patentnumber=5960411),
as one of the new breed of software patents for which the normal
rules of obviousness seemed to have been suspended, was widely
criticised at the time it was granted
(http://www.around.com/patent.html).  This didn't stop Amazon
from suing Barnes and Noble for infringement, thus gaining a
tactical injunction before the Christmas shopping period in 1999,
but ultimately settling out of court.

The satire site Despair.com
(http://www.despair.com/demotivators/frownonthis.html) said of
Jeff Bezos:

"He's really inspired a new movement in the dotcom universe -
frivolous, destructive intellectual property lawsuits. I couldn't
be happier to be a part of the revolution."

Amidst the protests and calls to boycott Amazon, Jeff Bezos moved
into damage-control mode. After all, Amazon still had a large
proportion of customers who also took an active interest in the
development of the Internet and didn't look kindly on attempts to
throttle the growth of e-commerce.

After talking to Tim O'Reilly, Jeff Bezos created a web page in
which he refused to give up his patents
(http://web.archive.org/web/20010802044125/www.amazon.com/exec/obidos/subst/misc/patents.html),
but promised to lobby politicians to:

1. Reduce the lifespan of software and business-method patents
2. Have a public comment period for patents, allowing members of
the public to submit prior art.

Naturally, and perhaps predictably, nothing came of this.

A second wave of spin came with the formation of Bountyquest,
formed by Bezos with Tim O'Reilly. This was a venture in which
the general public, typically people with no knowledge of patent
law, were asked to submit prior art to try and invalidate the
"One-Click" patent, amongst others. Again, nothing came of this
either (except for some additional prior art for Amazon to cite
preemptively in future patent filings). O'Reilly later claimed
that he had "killer" prior art
(http://www.oreilly.com/pub/a/oreilly/ask_tim/2003/bountyquest_1003.html),
but it has yet to surface. In any event, Amazon's drive to patent
e-commerce has only accelerated since then.

Amazon's plan to control the web

Search any international patent database for Amazon.com, and over
100 patents and applications come back. The Register says of 3 of
these patents
(http://www.theregister.co.uk/2005/11/12/amazon_triple_patent/):

"It's a sweeping landgrab which puts e-commerce rivals on the
alert. The techniques granted to Amazon.com by the patent office
are already ubiquitous on commercial and social networking web
sites." -and points out that Jeff Bezos once said he would never
patent such things. Amazon also reportedly attempted to hide a
patent application on blogging by filing a nonpublication request
(http://yro.slashdot.org/yro/05/03/21/1215224.shtml?tid=155&tid=1).

The original "One-Click" patent application is used as the basis
for a number of Amazon's additional patent filings around the
world (http://swpat.ffii.de/pikta/xrani/1click/index.en.html).
The Japanese application
(http://www4.ipdl.ncipi.go.jp/Tokujitu/PAJdetail.ipdl?N0000=60&N0120=01&N2001=2&N3001=H11-161717)
ran into unexpected hurdles when the Japanese patent office
initially rejected the application, citing Japanese version of
the book "User interface design" by Alan Cooper and an earlier
Japanese patent
(http://www.thestandard.com/article/0,1902,24439,00.html). The
Japanese "gift giving" incarnation of this patent has only
recently had an examination request filed
(http://www4.ipdl.ncipi.go.jp/Tokujitu/PAJdetail.ipdl?N0000=60&N0120=01&N2001=2&N3001=2000-099592).
It will be interesting to see how this develops.

The "international" versions of the "one-click" patent
application tend to have narrower claims than the original one in
the US. Amazon, like all US patentees, is under a continuing duty
to disclose any prior art that it knows of to the USPTO.
Therefore any prior art known to Amazon that is prompting them to
narrow these claims should already be in the file wrapper of the
"One-Click" patent in the US.

The use of patents in litigation by Amazon is increasing too.

Having had to shell out about $40 million for the use of
Soverain's patents, Amazon has shown that it will use its
portfolio against anyone who dares challenge it. Faced with an
allegation that it was infringing one of Cendant's patents,
Amazon responded with a lawsuit against Cendant for patent
infringement
(http://www.theregister.co.uk/2005/07/18/amazon_patent_suit/). In
a lawsuit from a small one-man company, IPXL, for patent
infringement, Amazon greedily pursued costs when he lost, only
failing to obtain them because of mistakes by the Amazon legal
team.

Fighting Back

There have been a few attempts to combat software patents.

The Public Patent Foundation has filed requests to re-examine
both a data compression patent relating to the JPEG and
Microsoft's FAT Patent. The Electronic Frontier Foundation "is
launching a Patent Busting Project to take on illegitimate
patents that suppress non-commercial and small business
innovation or limit free expression online." and has made a list
of patents targeted for destruction.

Surprisingly, neither of these relatively well-funded ventures
has addressed the "one-click" patent, despite its high profile
and continuing potential for damage to e-commerce . (The EFF once
suggested it, but it didn't make the final list).

Nevertheless, a few campaigns that directly attack the Amazon
"one-Click" patent and its descendents are gathering momentum
around the world.

The FFII are involved in a post-grant opposition against one of
the European descendents of the "One-Click" patent, which
essentially tries to patent gift-giving
(http://gauss.ffii.org/PatentView/EP927945/Comments).

In Australia, the Telecommunications giant Telstra is attacking
in court the version of the "One-click" patent that has been
filed there
(http://www.ipaustralia.gov.au/ipprofessor/archivednews/13%20-%2019%20July%202004.shtml#_Hlk77757415).
They say they want to protect the industry from being affected by
Amazon's application.

A lone blogger
(http://igdmlgd.blogspot.com/2005/11/amazon-one-click-reexamination-request.html)
has put together a 268-page request for re-examination
(http://infoanarchy.org/images/amazonpatent.pdf) of the original
Amazon One-Click patent in the USA
(http://patft.uspto.gov/netacgi/nph-Parser?patentnumber=5960411).
His prior art includes an internet shopping patent
(http://patft.uspto.gov/netacgi/nph-Parser?patentnumber=5729594)
and references to the DigiCash payment system
(http://web.archive.org/web/*/http://www.digicash.com). He is
looking for donations to fund the request.