US Patent Office Decides That One Click Really Is Patentable

from the wow dept

Ladies and gentlemen, we now have confirmation that the USPTO is a joke. After years of back and forth, it has decided, once again, that Amazon’s one-click patent is perfectly valid. This, despite tons of prior art, and basic common sense. We were just wondering what was taking so long for the USPTO to reject the patent. But, of course, it seemed like the USPTO was willing to go out of its way to help keep this patent around. Of course, as some are pointing out, the end result of this patent surviving is that it may be used as example number one for patent reform.

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Companies: amazon

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Comments on “US Patent Office Decides That One Click Really Is Patentable”

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62 Comments
Anonymous Coward says:

Re: Re: Re: Reform?

The application leading to this patent was filed in 1997, about the time that some of your “high school kids” were in pre-school.

Obviousness is determined at the time an invention is created, and not, as is the case here, 13 years after the application was filed.

As for your pejorative jab at patent examiners in general, perhaps you may want to consider becoming employed by the USPTO so that it can receive the benefit of your expertise.

Anonymous Coward says:

Re: Re: Re:2 Reform?

Obviousness is determined at the time an invention is created, and not, as is the case here, 13 years after the application was filed.

It was obvious to “one practiced in the art” when it was filed.

As for your pejorative jab at patent examiners in general, perhaps you may want to consider becoming employed by the USPTO so that it can receive the benefit of your expertise.

No, they obviously don’t hire the competent.

Allen (profile) says:

Re: Re: Re:2 Reform?

AC, It was as obvious 13 years ago as it is today. One click with a mouse to cause a computer to do something is as old as the mouse itself (somewhere in the mid ’60s I believe) and the ‘idea’ of making things easier for your customers can not be claimed by Amazon.

I’ll pass on the job offer. The evidence suggests the pay and conditions suck big time. Otherwise they might have some better talent.

Mike Masnick (profile) says:

Re: Re: Re:2 Reform?

Obviousness is determined at the time an invention is created, and not, as is the case here, 13 years after the application was filed.

You say that as if this patent hasn’t been discussed as obvious since it was first published.

But, yes, as others pointed out, it’s difficult to see how this was not obvious even “all the way back” in 1997. I remember what the web was like in 1997. A single click to buy something is not something that requires or deserves a patent. It was plenty obvious. I worked for an e-commerce company at the time, and we had laid out a variety of different buying options, with the goal of simplifying all of them — including one-click buying. And none of us thought to patent it at the time. Who would do something like that?

I recognize that your experience is not in the internet, software development or startup world, but this idea was not even remotely revolutionary in 1997.

Anonymous Coward says:

Re: Re: Re:3 Reform?

“Revolutionary”, as we both know, is not the equivalent of the statutory requirements of an invention having to be new, useful, and non-obvious (to one of ordinary skill in the art to which the invention pertains) in order that a patent may properly issue.

The problem here, as I see it, it that persons tend to generalize concepts/ideas, and not that which is described and claimed in issued patents. Without reading the patent specification itself, the claims as issued, the application file wrapper, and an understanding of the relevant prior art cited against the patent it is far to easy to arrive at such generalizations.

For whatever it may be worth, in 31 years of practicing law I have yet to see a single patent that has ever “locked” a client out of a market. It is indeed very, very rare for a person/company to come up with a truly generic invention that by definition must be practiced in order for a newcomer to enter a newly developing market for products and/or services. Almost invariably an issued patent covers an improvement, and the claim limitations used to distinguish the improvement over the prior art leaves abundant room for others to enter the market with their own products/services.

Derek Bredensteiner (profile) says:

Re: Re: Re:4 Reform?

“For whatever it may be worth, in 31 years of practicing law I have yet to see a single patent that has ever “locked” a client out of a market. It is indeed very, very rare for a person/company to come up with a truly generic invention that by definition must be practiced in order for a newcomer to enter a newly developing market for products and/or services. Almost invariably an issued patent covers an improvement, and the claim limitations used to distinguish the improvement over the prior art leaves abundant room for others to enter the market with their own products/services.”

Even if the specificity of the patent (this one in particular, or others like it) is such that it wouldn’t technically prevent a newcomer from entering the market, it most certainly is a barrier, and a strong enough one that it most definitely will prevent competition if for no other reason than the potential costs of defending one’s self in court.

I’m glad this patent got approved. And I’m glad fellows such as yourselves are defending (defending the concept of patents like it) it. This is the best fuel for change that I can think of.

Mike Masnick (profile) says:

Re: Re: Re:6 Reform?

I am defending nothing other than to note that those who proclaim “It is obvious!” really should do their homework before jumping the gun.

This patent has been discussed, dissected and analyzed by many of us for *years*.

It’s funny. You come here all the time and make ridiculous assumptions about us, saying that we make statements without doing the research all the time — and yet, almost every time you say that it’s actually you who failed to do any research and it’s *you* who falsely assumed we did none.

Really amazing. You go to amazing lengths of cognitive dissonance to try to make us look bad.

Anonymous Coward says:

Re: Re: Re:7 Reform?

The only assumptions I make are those based upon what I happen to read in your articles and some of the comments thereto.

I have no desire or inclination to “make (you…or anyone else for that matter) look bad”. My only interest is to point out that merely proclaiming something is “obvious” is an unsubstantiated conclusion devoid of any detailed factual analysis.

Whether or not you happen to agree with their analysis, it is manifestly clear that many individuals have engaged in such an analysis, over an extended period of time, and arrived at the conclusion that the invention as claimed was new, useful and non-obvious at the time the invention was made.

Mike Masnick (profile) says:

Re: Re: Re:8 Reform?

Whether or not you happen to agree with their analysis, it is manifestly clear that many individuals have engaged in such an analysis, over an extended period of time, and arrived at the conclusion that the invention as claimed was new, useful and non-obvious at the time the invention was made.

Which “many people”? So far we have a few folks at the USPTO who appear to be clueless on basic internet concepts that were widespread and well known at the time of this (ha ha) “invention.”

Richard (profile) says:

Re: Re: Re:4 Reform?

For whatever it may be worth, in 31 years of practicing law I have yet to see a single patent that has ever “locked” a client out of a market.

Well I’ll give you a few examples

James Watt’s patents on the separate condenser which locked out the development of the high presssure steam engine.

Fox – Talbot’s patents on photography – which he was thankfully persuaded to relinquish.

The Wright Brothers’ patents on the lateral control of aircraft.

Maybe you should stop just “practising law” and read around the subject a bit.

D-

Anonymous Coward says:

Re: Re: Re:5 Reform?

Please note I referred to any of my clients.

As for your examples, I submit that none of the various patents locked anybody out of anything. The continuing reference to Watt, particularly by Boldrin and Levine, is little more than an “urban legend” and by no means even comes close to demonstrating a causal relationship between the work by Watt and his associates. There are literally hundreds of reasons beyond the Watt patent(s) that much more likely are the reasons underlying the development of the steam engine and its later widespread introduction into commerce. I am not familiar with Fox, so I can express no opinion. The Wright brothers were singularly unsucessfull in asserting their patents against others in the nascent aircraft industry.

I may practice law, but I am also an avid student of history underlying patent law development and its practical effect in most industries, old and new.

Anonymous Coward says:

Re: Re: Re:2 Reform?

The problem is that you assume that ALL innovation should be subject to patent protection and that no innovation would occur without patents. This is nonsense, the ONLY innovation that should be subject to patent protection should be innovation that would not occur otherwise and plenty of innovation would occur perfectly well without patents. What we need to do is ensure that only innovations that require patents to progress receive patents, those that do not do not receive patents. and the one click patent is nonsense.

dragonmouth says:

Re: Re: Re:3 Reform?

AC, you are confusing “innovation” with “invention”.

INVENTION – U.S. Patent Law. a new, useful process, machine, improvement, etc., that did not exist previously and that is recognized as the product of some unique intuition or genius, as distinguished from ordinary mechanical skill or craftsmanship.

INNOVATION is the process of introducing the INVENTION into every day life. There is no mention of INNOVATION in US Patent Law. INNOVATION, like breathing, cannot be patented.

Anonymous Coward says:

Re: Reform?

“This is more like example number one of why software patents should be done away with entirely.”

Fixed that for you.

At least patents on physical things give you the design specs, but the vast majority of software patents are obvious.(As in, things you could implement without seeing the spec they turned in to the patent office)

Anonymous Coward says:

Re: Re: Reform?

At least patents on physical things give you the design specs,

No, they don’t. I’m guessing you haven’t seem many patents then. I’ve never seen full specs in a patent, they only provide enough detail to describe the idea in as general and broad terms as they can get away with. You can usually get *far* more information from looking at the product itself. Otherwise why bother with a patent with a limited life if you could otherwise keep the workings of your product secret forever? “Disclosure as a trade for protection” is a patent myth.

Anonymous Coward says:

Re: Reform?

“This is more like example number one of why patents should be done away with entirely.”

The U.S. is heading down a path of patent, and copyright, abolishment. The best thing that the U.S. government can do now to save patents from catastrophic failure is to make them more reasonable. If not, public sentiment will destroy them completely as politicians get booted out of office, protesters overwhelm congress by the millions, and patents and copyrights will be done away with completely as fast as congress passed the do not call list bill when they were overwhelmed by millions of people despite industry lobbying against it.

Anonymous Coward says:

Re: Re: Reform?

(to continue) I remember when the government in the U.S. tried to pass a law to try and punish employers who hired illegal immigrants. Here in California there were protests, people started flooding the streets and freeways, I couldn’t drive because high schools were FULL OF STUDENTS flooding the streets and getting in everyones way, there was no way authorities could reasonably stop them all, there were way too many. The government quickly caved in and didn’t pass these laws.

When the people demand something with overwhelming force, the government listens. Trust me industry, you’re if you keep taking the path you’re taking you are going to eventually lose your patents completely. and while I do think some IP (including patents and copyrights) are good, you have abused them to the point where public sentiment will eventually destroy these laws and ensure they never get re – enacted. No amount of lobbying will save them. The BEST thing you can do to maintain these laws is make them more reasonable. Period. Keep down this path and they will be destroyed.

rabbit says:

Re: Re: Reform?

Question – Where is this “public sentiment”?

The most frightening issue regarding patent and copyrights is that when I talk about it, outside of my rather small circle, most people have no idea what I am talking about.

I spent a couple of hours a week or so ago explaining to someone that she had to take some documents off our corporate network because in extremely large print on every page was a disclaimer that the document was copyrighted (not to mention confidential) to her old employer. She could not understand what the big deal was about.

Zuco (user link) says:

Nonsense

Unfortunately, common sense is already something irrelevant.
All of this is just a greedy game, for control and money.
The legal system becomes useless to match real needs and at the end it leads to corruption.

Patenting One Click is like create a patent for the act to paint a period with a pen at the end of a phrase. It’s like a patent for pointing with a finger to some direction. This is just stupid! A really stupid game that lead to nowhere and produces nothing good for nobody. Companies spend a fortune to patent useless things like this and the legal system uses its resources to keep discussing the obvious.

To change the law, just ignore it…

scott says:

It's just a form of taxation

The patent system really benefits no one except the patent attorneys and their ilk. Just think of the entire system as a tax to support these leeches. When you see them driving down the street in a high-end vehicle consuming products and services (never, ever producing anything), just know that that is what the patent system is upholding. Any legal system that fosters greed and scarcity is ultimately a flawed system in terms of the human condition. Ultimately the patent system discourages new comers from innovation, etc. Clearly, this helps no one (except aforementioned leeches).

The Patent Examiner Guy (profile) says:

Claims?

And does anyone know the content of the amended claims? The USPTO database is famous among us patent-examiners-from-other-countries for being pretty flimsy when it comes to making amendments public. From what I gather, there were a lot of claims submited, but the patented ones (unless there’s an update coming soon) are from 2007.

I haven’t really followed the case and I would love to actually read them before commenting…

abc gum says:

crazy patents

http://www.freepatentsonline.com/crazy.html

Yes, the laser cat toy is listed. In addition it is pointed out that this particular patent has been issued multiple times. How much does the uspto get for each application?

Here are some others:

-Apparatus for facilitating the birth of a child by centrifugal force

-Method of swinging on a swing

-Just read Claim 9!
9. The method of providing user interface displays in an image forming apparatus which is really a bogus claim included amongst real claims, and which should be removed before filing; wherein the claim is included to determine if the inventor actually read the claims and the inventor should instruct the attorneys to remove the claim.

Anonymous Coward says:

This makes me hate everything. Honestly.

Why don’t we just patent ‘storing information in a database to be looked up and used at a later date’. Many of the software patents that seem to be totally ridiculous seem to stem from that basic idea. It’s disgusting.

Don’t these patent officers consult with tech liaisons of some sort to decide this stuff?

Gah.

Dale B. Halling (profile) says:

Amazon Deserves Patent

The Amazon one click patent covers a real innovation, despite the nonsense to the contrary. A number of competitors had copied Amazon’s one click ordering system and shortly after the patent issued, Amazon.com sued Barnes and Noble for infringement. Industry studies showed that between sixty and sixty-five percent of online shopping baskets abandon before they checked out. The primary reason for abandoned internet shopping carts seems to be buyer confusion and annoyance with the online purchasing process. Presumably, many of those abandoned shopping carts represent lost sales. The goal of the one click method for online shopping was to make the process simpler, faster, and more secure, thereby capturing some of that lost business. Barnes and Noble’s Express Lane (one click shopping system) was evidently successful, since a large percentage of their customers had chosen to utilize the Express Lane rather than the shopping basket.

The sad and ironic component to this controversy is that it is easy to design around the claims of the “one click” patent. “Design around” means to invent an alternative to a patented invention that does not infringe the patent’s claims. In this case, all Barnes and Noble or any other online retailer had to do to design around the claims of the “one click” patent was have a “two click” ordering system. However, few of the critics of Amazon.com or the “one click” patent mentioned this simple solution. Nor was there any complaint that Barnes and Noble was essentially too lazy to spend the time and effort to come up with this simple design-around solution. One of the functions the patent system promotes is alternative designs to problems by creating an economic incentive to create alternative designs.

:) says:

Re: Amazon Deserves Patent

http://media.egotvonline.com/files/2009/11/push-button-start-300×225.jpg

Really innovative I see.

Every single institution or person who ever thought about a “one-click-something” or “one-push-button” should have a patent now.

http://en.wikipedia.org/wiki/One_click_install

That will be funny as most opensource projects do that all the time.

Reboot buttons or reset buttons should be patented too they cover a lot of ground to reset and reboot and electronic device LoL

Ex local music promoter geek says:

Re: Amazon Deserves Patent

The sad and ironic component to this controversy is that it is easy to design around the claims of the “one click” patent.

The sad and ironic component to this controversy is that Barnes and Noble need to use two clicks. So buyers at Barnes and Noble have a more confusing and annoying experience because Amazon wants them to. This is collusion between the USPTO and Amazon to impose artificial trade barriers undermining the competition offered by Barnes and Noble.

It’s reasonable to assume that a one-click ordering system is a natural progression from a two click ordering system, two from three and so on. In that case, it’s entirely irrelevant who came up with it first … someone would have eventually.

There really is a distinct difference between innovation and invention. Amazon has accomplished the former and managed to have it recognized as the latter. It doesn’t deserve a patent.

Mike Masnick (profile) says:

Re: Amazon Deserves Patent

The Amazon one click patent covers a real innovation, despite the nonsense to the contrary.

Sorry, it’s not. Saying that proves you know nothing about programming.

A number of competitors had copied Amazon’s one click ordering system and shortly after the patent issued, Amazon.com sued Barnes and Noble for infringement.

Right. Which was proof of how ridiculous it was.

Industry studies showed that between sixty and sixty-five percent of online shopping baskets abandon before they checked out. The primary reason for abandoned internet shopping carts seems to be buyer confusion and annoyance with the online purchasing process. Presumably, many of those abandoned shopping carts represent lost sales. The goal of the one click method for online shopping was to make the process simpler, faster, and more secure, thereby capturing some of that lost business.

Indeed. Which is why lots of e-commerce providers were working ways to improve the shopping process. Doesn’t mean it deserves gov’t granted monopoly protection. There was tons of innovation happening in this area sans patents. Patents SLOWED DOWN that innovation by limiting what people could do for NO REASON.

Barnes and Noble’s Express Lane (one click shopping system) was evidently successful, since a large percentage of their customers had chosen to utilize the Express Lane rather than the shopping basket.

Yes, what does that prove?

The sad and ironic component to this controversy is that it is easy to design around the claims of the “one click” patent. “Design around” means to invent an alternative to a patented invention that does not infringe the patent’s claims. In this case, all Barnes and Noble or any other online retailer had to do to design around the claims of the “one click” patent was have a “two click” ordering system.

Wow. You really have no concept of capitalism or competition do you? In your world, only McDonalds can sell hamburgers, huh? Everyone else has to redesign the hamburger.

You really think the answer is to make everyone less efficient and have every company redesign the wheel rather than building on it? Stunning in your ignorance of basic innovation. You must be a lawyer.

Anonymous Coward says:

Two examiners of record on the patent as originally issued.

One examiner of record on the reexamination, with an additional two persons “initialing-off” on the reexamination report.

Doubtless many others given the high level of public visibility associated with this matter.

Maybe there is a piece of “killer” prior art that as yet remains undiscovered. This is always a possibility. The fact remains, however, that it has not come to the fore…and decisions by the USPTO have to be made on the basis of evidence presented and not supposition.

Mike Masnick (profile) says:

Re: Re:

Maybe there is a piece of “killer” prior art that as yet remains undiscovered. This is always a possibility. The fact remains, however, that it has not come to the fore…and decisions by the USPTO have to be made on the basis of evidence presented and not supposition.

You’ve done this before and I’ve called you on it. You are being purposely and willfully misleading. We are talking about *obviousness* not *newness*. Prior art is what shows whether an idea was *NEW* not whether it was obvious.

If you put pretty much *ANY* competent software programmers in a room in 1997 and said “let’s improve the shopping cart process” you would have seen a bunch of commonly discussed solutions, including streamlining it down to a single click. I *KNOW* because I was in one of those meetings.

But that’s not “prior art” it’s just COMMON SENSE.

It’s so depressing that patent attorneys who have never programmed a lick of code in their lives think they know better than programmers this basic concept.

Anonymous Coward says:

Re: Re: Re:

35 U.S.C. 102 Conditions for patentability; novelty and loss of right to patent.

A person shall be entitled to a patent unless –

(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or

(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or

(c) he has abandoned the invention, or

(d) the invention was first patented or caused to be patented, or was the subject of an inventor’s certificate, by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application for patent or inventor’s certificate filed more than twelve months before the filing of the application in the United States, or

(e) the invention was described in – (1) an application for patent, published under section 122(b), by another filed in the United States before the invention by the applicant for patent or (2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, except that an international application filed under the treaty defined in section 351(a) shall have the effects for the purposes of this subsection of an application filed in the United States only if the international application designated the United States and was published under Article 21(2) of such treaty in the English language; or

(f) he did not himself invent the subject matter sought to be patented, or

(g)(1) during the course of an interference conducted under section 135 or section 291, another inventor involved therein establishes, to the extent permitted in section 104, that before such person’s invention thereof the invention was made by such other inventor and not abandoned, suppressed, or concealed, or (2) before such person’s invention thereof, the invention was made in this country by another inventor who had not abandoned, suppressed, or concealed it. In determining priority of invention under this subsection, there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.

The above is the novelty (i.e., “new”) provision set forth at 35 USC 102.

Importantly, the only lawsuit pertaining to this patent, Amazon v. Barnes & Noble, determined at the trial court level that the invention was deemed new, useful, and nonobvious and an injunction was issued against B&N. Its validity passed muster before the Court of Appeals for the Federal Circuit, but was reversed on the issue of the injunction and the case was remanded to the trial court for reconsideration of its injunctive order.

FYI, between 1965 and 1971 I attended undergraduate (USNA)and graduate (USNPGS) programs in aero engineering, with a significant component of my studies involving the theory, design and use of then computers, as well as software programming (mostly FORTRAN).

William says:

The USPTO is a joke

Everytime I run back into the Amazon 1 click ordering thing it really pisses me off. Whats next, people claming patents on an {if} statement.

It makes you wonder what goes on at the USPTO, its evident that they need a major reorganization. People need to be terminated, regulations need to be stiffer. A reform is much needed.

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