If you are a photographer, you have no doubt seen that Amazon has apparently obtained a patent for a specific methodology for shooting on a white background. Everyone has been up in arms about it but, in spite of my lame patent knowledge, I thought there had to be more going on here. Or, actually, less. I thought that even if Amazon had the patent, it had to be somehow not enforceable. At the very least, it seemed to me that it would be essentially overwhelming for Amazon to even attempt to litigate against each individual (mostly broke) photographer who uses the same set-up and it wouldn’t be cost-effective unless they only went after large photo-factories, but there really aren’t so many of them anymore so that seemed unlikely too.
Even so, photographers are a worrying lot so I thought I’d try to find out the skinny on the patent. Luckily, I have a friend who is a brilliant patent lawyer so I asked her for her general impression. Here is what she told me (of course, none of this is actual legal advice–just her impression):
If this technology is as old as the article indicates, then the patent is likely invalid. Invalidity and non-infringement are the two primary defenses in almost every patent case. Amazon cannot receive a patent to an old technology. They have to establish something is novel about their invention. They have to conceive the invention. But you can argue it existed in the prior art or was obvious from prior art and thus the patent is invalid.
So, it seems that in the patent world, the first defense is similar to the copyright world: invalidate. And here, even though my friend is not from the photo world, even she can tell that the technology likely pre-existed the patent and so, boom, the patent would likely be found invalid.
In other words, Amazon may hold a patent, but that piece of paper is essentially worthless. Might as well use it to wrap a book for shipping.
Whatever the reality, I’m not going to get in a lather about any of it until or unless Amazon not only attempts to enforce its patent, but succeeds in doing so. We have bigger, much more threatening fish to fry.