The inventor of the World Wide Web, Tim Berners-Lee, once said that some patents
combine "well-known techniques in an apparently arbitrary way, like patenting
going shopping in a yellow car on a Thursday." The fact that the USPTO
actually granted a large number of these patents (despite a requirement to examine
them for obviousness) was one of the major issues of the dot-com era.This has
often been attributed to the lack of USPTO resources for finding prior art.
As the vast majority of knowledge about software was either part of the undocumented
public knowledge, or stored in obscure places, it wasn't usually considered
by patent examiners.
The situation has improved a little since the 1990s. A number of software prior-art
databases have arisen. The USPTO now encourages its examiners to search a variety of
prior art sources such as the wayback machine.
Companies such as IP.com now provide searchable
databases of "defensive publications" which also allow customers
to post discoveries to prevent their patenting by others.
However, when the first wave of e-commerce patents hit the USPTO, they were
left floundering. It is arguable whether the quality of examination has really
improved since then, as patents are still being issued that raise eyebrows amongst
software professionals. For example, Microsoft's XML patent has come in for
a fair amount of criticism. The Foundation for a Free Information Infrastructure have shown how it is just about impossible to conduct e-commerce without infringing some patent or the other (even in Europe, which supposedly has much greater restrictions on the patenting of software).
Nonetheless, one patent continues to stand out as the epitome of restrictive
The One-Click Patent
Click" patent, as one of the new breed of software patents for which
the normal rules of obviousness seemed to have been suspended, was widely
criticised at the time it was granted.This didn't stop Amazon from suing Barnes and Noble
for infringement, thus gaining a tactical injunction before the Christmas shopping
period in 1999, but ultimately settling out of court.
The satire site Despair.com said of Jeff Bezos:
"He's really inspired a new movement in the dotcom universe - frivolous,
destructive intellectual property lawsuits. I couldn't be happier to be a part
of the revolution."
Amidst the protests and calls to boycott Amazon, Jeff Bezos moved into damage-control
mode. After all, Amazon still had a large proportion of customers who also took
an active interest in the development of the Internet and didn't look kindly
on attempts to throttle the growth of e-commerce.
After talking to Tim O'Reilly, Jeff Bezos created a web
page in which he refused to give up his patents, but promised to lobby politicians
1. Reduce the lifespan of software and business-method patents
2. Have a public comment period for patents, allowing members of the public
to submit prior art.
Naturally, and perhaps predictably, nothing came of this.
A second wave of spin came with the formation of Bountyquest, formed by Bezos
with Tim O'Reilly. This was a venture in which the general public, typically
people with no knowledge of patent law, were asked to submit prior art to try
and invalidate the "One-Click" patent, amongst others. Again, nothing
came of this either (except for some additional prior art for Amazon to cite
preemptively in future patent filings). O'Reilly later claimed
that he had "killer" prior art, but it has yet to surface. In
any event, Amazon's drive to patent e-commerce has only accelerated since then.
Amazon's plan to control the web
Search any international patent database for Amazon.com, and over 100 patents
and applications come back. The
Register says of 3 of these patents:
"It's a sweeping landgrab which puts e-commerce rivals on the alert. The
techniques granted to Amazon.com by the patent office are already ubiquitous
on commercial and social networking web sites." -and points out that Jeff
Bezos once said he would never patent such things. Amazon also reportedly attempted
to hide a patent application on blogging by filing a nonpublication request.
The original "One-Click" patent application is used as the basis
for a number of Amazon's additional
patent filings around the world. The Japanese
application ran into unexpected hurdles when the Japanese patent office initially rejected the
application, citing Japanese version of the book "User interface design"
by Alan Cooper and an earlier Japanese patent. The Japanese "gift
giving" incarnation of this patent has only recently had an examination
request filed. It will be interesting to see how this develops.
The "international" versions of the "one-click" patent
application tend to have narrower claims than the original one in the US. Amazon,
like all US patentees, is under a continuing duty to disclose any prior art
that it knows of to the USPTO. Therefore any prior art known to Amazon that
is prompting them to narrow these claims should already be in the file wrapper
of the "One-Click" patent in the US.
The use of patents in litigation by Amazon is increasing too.
Having had to shell out about $40 million for the use of Soverain's patents,
Amazon has shown that it will use its portfolio against anyone who dares challenge
it. Faced with an allegation that it was infringing one of Cendant's patents,
Amazon responded with a lawsuit
against Cendant for patent infringement. In a lawsuit from a small one-man
company, IPXL, for patent infringement, Amazon greedily pursued costs when he
lost, only failing to obtain them because of mistakes by the Amazon legal team.
There have been a few attempts to combat software patents.
The Public Patent Foundation has filed requests to re-examine both a data compression
patent relating to the JPEG and Microsoft's FAT Patent. The Electronic Frontier
Foundation "is launching a Patent Busting Project to take on illegitimate
patents that suppress non-commercial and small business innovation or limit
free expression online." and has made a list of patents targeted for destruction.
Surprisingly, neither of these relatively well-funded ventures has addressed
the "one-click" patent, despite its high profile and continuing potential
for damage to e-commerce . (The EFF once suggested it, but it didn't make the final list).
Nevertheless, a few campaigns that directly attack the Amazon "one-Click"
patent and its descendents are gathering momentum around the world.
The FFII are involved in a post-grant
opposition against one of the European descendents of the "One-Click"
patent, which essentially tries to patent gift-giving.
In Australia, the Telecommunications giant Telstra is attacking
in court the version of the "One-click" patent that has been filed
there. They say they want to protect the industry from being affected by Amazon's
A lone blogger
has put together a 268-page request
for re-examination of the original Amazon One-Click
patent in the USA. His prior art includes an internet
shopping patent and references to the
DigiCash payment system. He is looking for donations to fund the request.