Regarding Patents and related IP (was: Web Shopping)

["Robert G. Brown" <bob@xxxxxxx>]

"Imago" <imago@imago3d.com> writes:
>During a meeting we were talking about open source issues .
>Someone mentioned that Amazon.com was evil because they
>claimed to own 'one click shopping'.
A bit glib, but essentially true. Amazon has been granted 
a patent for what can be termed "one-click shopping", which
(for the uninformed) is a way to buy or bid on something with 
all of the information pre-stored. For example, if the merchant
already has my credit card number and shipping info, I can
click on something to buy it, and presto!...

Can't be patented? Maybe, maybe not. US Law is VERY unusual in
this respect.  Amazon, evil? Nah, they're only looking out for
their own best interests. Patent or no, I'm sure they understand
that there's no substitute for making money, something Amazon
actually has yet to show ability to do.

>This interested me
>because my auction site could use 'one click bidding', which
>presently takes two or three clicks and password typing.  I
>don't think EBAY has made a claim to this because they are not
>using it. 
A lot of sites could exploit this kind of thing, which is
certainly one good reason for making sure it's patented. Then, 
Amazon could license this idea to anyone using a similar kind
of interaction.  You really have to read the patent to see
where you might start to infringe on Amazons IP.

>I don't understand how a company can claim using a
>cookie is a property right. 
Then you do not understand current US patent law as it pertains
to software. Um, join the crowd.

In GENERAL, a patent has to have three characteristics:

1. It must perform the function described in the application.
2. It must not be "prior art"; that is, an application of some
   thing which is known (at least in a trade) and treated as 
   common knowledge.
3. It cannot be an obvious application of existing technology.

It used to be a requirement that the applicant show a working 
prototype of the invention. This is no longer so. The law itself
isn't bad, but it's clear that the Patent Office doesn't have
examiners that recognize prior art (the Y2k Windowing algorithm),
and you can make a case for one-click shopping is "an obvious 
application" of existing (cookies and so forth) technology. I
do know that the Clinton Administration had stuck about $25 mil-
lion into several budget to improve the Patent Office (raises,
competitive pay scales, better facilities), and Congress has 
removed that several times. There are several ways to interpret
or explain that, but this is probably one area where less govern-
ment is *not* better.

>The section below caught my eye
>because they used Tim O'Reilly's words about the Internet.
Thanks for sending this along, Imago, and highlighting the topic!

>[From Poor Richards's Web Site News]
>   Amazon claims it cost them $1,000,000 to create their
>   one-click program. That's just plain nonsense ...
I'd like to know what that megabuck figure includes, but I'll
bet it's a LOT more than merely "creating...one-click". I don't
want o write a tome on software budgeting and costing here, so
I'll leave it by observing that both claim and counterclaim are
so completely vague and nebulous that further attention to this 
is kind of meaningless.

>   But even if it were true, it doesn't mean that
>   such an "invention" should be patentable. The idea is too
>   obvious. It's like patenting the idea of the light bulb,
>   rather than an actual functioning light bulb.
When the light bulb was invented, a patent applicant had to 
produce a working light bulb. Apparently this is no longer 
needed. For computer software, there IS NO "machine" to  deliver
to the patent examiner. One can show the source code, define the 
rules by which the source code works, and show that, when loaded
and run on a computer, the predicted behavior is produced, but
that even EXCEEDS the legal requirements.

>   The concepts behind one-click...pretty basic, and the
>   technologies ....commonplace stuff. 
Unfortunately, this is opinion, but if it were written by a 
(competent) patent examiner, especially in a rejection letter, it
would essentially carry the weight of law. The system we have today 
is, IMO, largely biased against that sort of letter ever being 
written.

>   ...Amazon may not have even been the first... CDnow...claims 
>   to be the first....affiliate program...
Yes, but there are details that get sorted out. Another difference
between the US and the World is that here, it's first to INVENT,
while everywhere else, it's first to FILE (for a patent).

>   These software patents are a nuisance,....
>   {Excerpted Quote for Tim O'Reilly}
>         "a slap in the face of Tim Berners-Lee and all of the
>         other pioneers....
Perhaps; but if this is how string feeling run, where are these
people at election time, or when bills to revise patent law (and
make these "slaps in the face" legal)?

>         Anyone who puts a small gloss on this fundamental
>         technology, calls it proprietary, and then tries to
>         keep others from building further on it, is a thief....
Nice rhetoric, wrongly focussed. In my view, the fault lies 
primarily in the Patent Office, whose poor judgment allows 
some fairly lame things to receive patents. Can we expect people
to refrain from applying for patents because they are not 
sufficiently noble? 

>   ...Amazon's patent, Barton-Davis says, is a
>   "cynical and ungrateful use of an extremely obvious
>   technology."
Then perhaps we need people of his expertise in the patent office
itself.

>   Tim O'Reilly also points out... that
>   in the long term such patents are probably not going to be
>   upheld.
>   If you feel strongly about this issue, I suggest you sign
>   Tim's open letter to Amazon:
>   http://www.oreilly.com/ask_tim/amazon_patent.comments.html
>   More information ...
>   The Amazon One-Click Patent:
>   http://www.patents.ibm.com/details?pn=US05960411__
>   The Amazon Affiliate Program Patent:
>   http://www.patents.ibm.com/details?pn=US06029141__
>   Tim's column on the Amazon patents:
>   http://www.oreilly.com/ask_tim/amazon_patent.html
>   IBM's Intellectual Property Site (you can search the patent
>   databases):
>   http://www.patents.ibm.com/
>
>   O'Reilly's Patent Web Site (including a list of controversial
>   software patents):
>   http://www.oreillynet.com/patents/
>
>   The Boycott Amazon site:
>   http://www.gnu.org/philosophy/amazon.html#whyBoycott
I'm repeating the above URL's largely to make a lot of this 
information available again, and to highlight it for everyone.

Also, I'd like to add another, and somewhat unexpected source for
more information. In the O'Reilly book "Apache: The Definitive 
Guide, there is an excellent primer on the current state of a lot 
of this law on pages 217-221. In light of that info, it's EASY to
see how a patent can be granted to Amazon.

                                                   Regards,
                                                     ---> RGB <---