Amazon has recently received publicity for a US patent it was granted, covering a way of taking a photograph against a white background.  The patent has been the subject of much ridicule, so I thought it would be interesting to check it out.

Amazon’s Patent

Patent US 8,676,045 was granted on 18 March 2014, after originally being applied for in November 2011.

The patent has three “independent” claims, which are the first claims to consider when determining the scope of a patent. Claims 1 and 2 are each directed to “a studio arrangement” and claim 25 is directed to a corresponding “method”.  Claims 2 and 25 appear to be of broader scope, and specify an arrangement with a cyclorama background, various light sources in front of and behind an image capture position where a camera is placed, and an elevated platform, on which a subject to be photographed stands or is placed. The platform is specified as having a top surface which “reflects light emanating from the background such that the elevated platform appears a substantially similar color as the background and a rear edge of the elevated platform is substantially imperceptible to an image capture device positioned at the image capture position”.

This diagram from the patent illustrates the arrangement:

Instinctively I would say that this reflective surface platform has been an important feature in getting the claims allowed, although there are some other restrictions in the claim, specifically in the arrangement of light sources, which would also appear to be important – in other words, the combination of the reflective elevated platform with the light source arrangement has been held to be inventive.

These features are said to ensure that the background of images captured by the camera are automatically “pure white” and do not require post-processing, retouching or other image manipulation.

On reviewing the patent, I have to agree that this seems to be the kind of “obvious” implementation that should not be worthy of patent protection. However I have to say that I am not surprised that this patent did make it through the examination process.  The way that a patent office assesses an invention’s “inventive step” is quite different from the common perception of what can qualify for patent protection.  Patent Offices don’t worry about technical merit of an invention but instead employ a forumlaic process to determine whether something is obvious or not.

“Inventive Step” Asssessment

One aspect of these formulaic approaches that throws up some odd looking results is their inherent reliance on written prior art sources without thinking about “real world” common general knowledge.

Speaking generally, there are many criteria that must be met for a patent to be granted, but the core criteria in most countries are usually that the invention has novelty and an inventive step. The first of these is a relatively objective test. A patent claim will define an invention by a list of features, and the examiner checks whether the combination of those features has been disclosed somewhere else before.

The second of these criteria is fundamentally more subjective in nature. Essentially, an invention will have an inventive step if is not obvious to a person skilled in the art. Patent Offices have various different techniques to assess this question, with the aim of making sure that trivial developments are not awarded monopolies.

In an ideal case, a patent examiner relies on documentation to support their conclusions. To prove that an invention lacks novelty, the examiner will need to find a single document that shows all the features of the claim. To prove that an invention lacks inventive step, a patent examiner will look for a combination of documents that together show the features of the claim. The question of inventive step then becomes a question of whether it would be obvious to combine the teachings of the documents.

Examiners will run into difficulties in proving a lack of inventive step if they have to rely on too many documents. As soon as three or more documents are found, it is hard to maintain that it would be obvious to combine the teaching of each and every specific document.  And of course there will be cases where documentary evidence cannot be found for some specific teaching. This is where the Examiners have to rely on what is “common general knowledge” to support an objection of a lack of inventive step.

It is quite right that common general knowledge is relied upon only sparingly. It is proper that an examiner should provide evidence to back up his opinions. If a patent examiner was able to simply refuse an application based on a general feeling that there was a lack of inventive step, then there would be no consistency in the patent system.

However a dose of common sense needs to be applied, and this can be sorely lacking at times. In particular, when a patent claim contains a long list of features the job of an examiner becomes more difficult and, with the time pressures that they are under it can sometimes be easier to allow an application rather than prepare a complicated rebuttal of a claim’s inventive step. This is my impression of what has happened in this Amazon patent. The claims list sets of features which to me seem quite trivial in themselves, but together create a system that is unlikely to have been documented in the precise form as claimed. Because of this I think the Examiner has decided to allow the claim.

The situation in Europe may have been different, if a corresponding patent had been pursued there. The European Patent Office take a much closer look at the inter-relation of the features of a claim. Unless there is some functional interaction between features of a claim that achieves a combined technical effect that is different from the sum of the technical effects of the individual features, the claim is considered as a mere aggregation or juxtaposition of features and the inventive step of each feature is independently assessed. In practice this means that bundling features together is less likely, in itself, to guarantee patentability.

What Happens Now?

On the face of it, Amazon now have a patent that they might be able to use against photographers across the US, so it might provide a nice royalty stream for them! Having said that, because there are quite a few features in the claim it might be easy to avoid infringement – of course it all depends on the specific circumstances.  I would also be surprised if a patent like this was to stand up if it was challenged in court, but of course it would be better if trivial developments were not granted in the first place.

In my view the USPTO could improve their processes by providing some increased discretion for examiners to rely on common general knowledge as a basis for obviousness rejections.  Until then, the inventive step will remain relatively low!