TCS Daily

Is Amazon Holding a Junk Patent?

By James V. DeLong - February 23, 2000 12:00 AM

Just after Thanksgiving, a federal judge gave something to be thankful for. He prohibited's "Express Lane" method of ordering books on the Web, finding that it infringed a patent procured by Amazon for its "One Click" method. Clearly, deserves a copyright for the software it created, but should it really receive patent protection for the idea of easy ordering?

If you wonder how someone can patent such a simple idea, obvious to every gui user, as "Gee, let's allow repeat customers to order by clicking the mouse!" you have much company.

Part of the explanation may be simple - the judge was sitting in Seattle, so Amazon had the home field advantage.
Home field is not all of it, though, because Amazon's coup is one of an increasing number of dubious patents that are agitating the high tech community. Priceline has gotten a "business method" patent for its transfer to the Internet of some well-known features of conventional auctions. Some enterprising Japanese have filed on adding dried spice powder to other ingredients to make a dish called "curry." If present policies had existed a century and a half ago, department store founder John Wanamaker might have patented his novel idea of putting a firm price on his merchandise instead of bargaining with each customer.

Undeniably, intellectual property is one of the Great Ideas of Western Humanity. Nobel economist Douglass North attributes much of the great leap in living standards that began in the 18th century to the invention of the concept. When IP was protected so people could make a profit from it, they began producing it in quantity.

BUT: it is necessary to draw the line that separates the new and creative from the familiar, obvious, or in-the- general-air-of-the-times. The former deserves protection. The latter should be part of our intellectual commons and available to all. This is the line that is getting badly blurred.

There are many reasons for this, and several culprits. In 1980, the Supreme Court decision in Chakrabarty upheld the patentability of living things, noting that Congress meant to extend patent law protection to "anything under the sun . . . made by man" that is new and useful. In 1998, State Street, decided by the Federal Circuit, the appellate court charged with reviewing patent cases, said that "made by man" includes novel business methods. So far, so good; Douglass North would approve.

In practice, though, these decisions are the devil to implement. Patent law draws the right lines, in theory, by requiring that inventions be novel, not covered by prior art, and non-obvious, but these concepts are much easier to apply when an examiner in the Patent and Trademark Office is looking at a gadget than when the subject is a "business method." To make things worse, the PTO computer systems are in amazing disarray, as recent congressional complaints have shown.

Patent seekers compound the problems by mixing laziness with mendacity. The statement "we have found no prior art" usually means "we were careful not to look." Patent applicants achieve a level of obfuscation that would make a bureaucrat blush, precisely to avoid showing the obviousness of their underlying ideas. It is cheap to file for a patent. Getting one will scare some people off, and even if a re-examination or a court ultimately invalidates it someone will have to be willing to spend some money on the fight. So what the hell. Go for it. You might get lucky, like Priceline or Amazon, and get an early Christmas present.

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