Worried about Amazon.com's patent on white background photography?

If you are a full or part time professional or commercial photographer then you've probably read that Amazon has been granted a patent

for photographing objects (and that includes people) against a white background.

 

The important thing to note here is that this is a patent for a specific process of photographing subjects against a white background. The

patent makes twenty-seven specific "claims" for that process.

 

What if you don't use exactly the same process that Amazon does? Then you might not be infringing on Amazon's patent.

 

PPA Attorney Stephen Morris explains in this link: http://tinyurl.com/PPAamazon-patent

<p>There is something called "prior art" that is an effective defense against stupid patents<br>

http://en.wikipedia.org/wiki/Prior_art </p>

<p>I'm not going to stay up worrying about it, given the many years of painting and photographic portraiture with plain or white backgrounds.</p><div></div>

<p>I would like to see what they mean in real terms (not just on paper) and what am I suppose to avoid....urr, unless I spring for a license ?</p>

<p>As JDM indicated....its' absurdity in the making. Not going to lose any sleep over this.</p>

<p>Les</p>

What are supposed to avoid? If you had read the link you'd know there are 27 areas where you can do things differently.

JDM: your analysis has a fatal flaw.

 

Amazon's patent doesn't cover the look of photographing an object or person against a white or even a plain background.

It only covers a very specific method of doing so - the 27 "claims" in their patent - to do so.

 

So unless you can prove that someone was already shooting photos in that exact manner before the patent was issued

and you can provide documentary proof of that, your "prior art" claim isn't applicable.

<p>The U.S. patent office is apparently in a rubber stamp, approve-anything mode. I guess Google figured "why not?" People (and apparently companies like Google) having been flooding the office with bogus patents mostly in the hopes of shaking down a true innovator sometime in the future for some cash. It's a hedge on winning a future lawsuit more than it is trying to protect one's invention or idea.</p>

<p>http://www.techdirt.com/blog/innovation/articles/20130408/08244222623/new-study-uspto-drastically-lowered-its-standards-approving-patents-to-reduce-backlog.shtml</p>

<blockquote>

<p>It only covers a very specific method of doing so</p>

</blockquote>

<p> <br>

As anyone who actually reads the referenced article quickly finds out, even using an ISO other than 320 avoids the patent. Prior art is irrelevant as it isn't process-specific.<br>

<br>

The problem started with allowing process-based patents. As long as process patents continue, problems like this will pop up yet at the same time are avoidable with completely minor changes like using the ISO dial. </p>

<p>It is a little scary seeing this wording in the claim:</p>

<p>"It should be emphasized that the above-described embodiments of the present disclosure are merely possible examples of implementations set forth for a clear understanding of the principles of the disclosure. Many variations and modifications may be made to the above-described embodiment(s) without departing substantially from the spirit and principles of the disclosure. All such modifications and variations are intended to be included herein within the scope of this disclosure and protected by the following claims."</p>

<p>I would think "All such modifications and variations..." would cover different ISO, number of lights, focal length, etc. As such, I would also think it would be harder to protect the patent, if it is covering all studio photography, which is a variation of their process.</p>

<p>The issue will be with the word "intended." I'm not sure why the PTO allowed that terminology but it won't hold up. </p>

<p>I'm having trouble understanding why that patent was issued. There seems to be nothing novel in it. The only possible explanation (to me at least) is that the Patent Office is overworked and under-funded, resulting in only cursory examination of the submissions by low-paid examiners barely qualified to do their jobs. Any halfway decent studio photographer would laugh at this patent.</p>

Peter,

The patent was issued because it only coves a very specific method of setting things up to photograph a subject in front

of a white background . Perhaps you did not read the article I linked to which describes Amazon's process?

 

The word "process" is important here, as this is merely a patent on that process. It is a very narrow patent.

 

To your point about "any halfway decent studio photographer would laugh at this patent."

 

Photographic competency isn't the point. Of course any semi-competent photographer can create at least a dozen ways

to execute each step covered by the patent's 27 specific claims. The point of the patent is only to cover one very specific

method. Doing something different at anyone of those 27 claims keeps you from infringing Amazon's patent.

 

The real question is why Amazon wanted the patent.

 

Is it meant to be a guide for their in house studios?

 

Is it meant to be a guide to other retailers who want to sell products through their portal, so that the site has a uniform look?

 

Was the patent created as a defensive weapon in case they have to go to legal war against a competitor like alibaba.com or other

another future online retailer portal?

<p>But the "process" has surely been done thousands of times in the last ten years alone. I think "prior arts" is the key, all the same.<br>

Whatever, the patent is unlikely to stand, since it would not only affect the little people, but (and this is the <em>important</em> thing) it will also affect really big companies.</p>

""Process" in the legal language of a patent refers to the very specific steps described in the patent, and not simply

photographing a subject against a lit white

<p>Prior art is irrelevant. There haven't been patents in the past that are similar. The existence of a photograph that looks similar in the past has nothing to do with prior art.</p>

<blockquote>

<p>The word "process" is important here, as this is merely a patent on that process. It is a very narrow patent.</p>

</blockquote>

<p><br /><br />I thought patents were supposed to protect ideas, not processes.</p>

<blockquote>

<p>There haven't been patents in the past that are similar</p>

</blockquote>

<p><em>Prior arts</em> does not apply only to things that have been patented, but also things that are common practice.</p>

<blockquote>

<p>constitutes <strong>all </strong><strong>information</strong> that has been made available to the public <strong>in any form</strong> before a given date that might be relevant to a patent's <strong>claims of originality</strong>. - Wiki</p>

</blockquote>

<p>an illustration of a similar attempt to patent something is to be found in the story of the <a href="http://en.wikipedia.org/wiki/George_B._Selden">Selden patents</a> in regard to the automobile and the internal combustion engine.</p>

I actually did read TFA, and while I agree that the patent does outline a particular setup, it also states that the setup given (paraphrasing here because I can't quote from the patent) is only one possible way, etc.

 

My point is that while a particular process is explained in the patent, there is nothing in that process that is novel, nor is the particular sequence or combination of lights novel. I would venture to guess that any photographer who specializes in product photography has done a very similar setup, or this identical setup, thinking it was nothing special, and mnever having a reason to document or publish it, as it was just one of the required skills of the job.

<p><strong>"Was the patent created as a defensive weapon in case they have to go to legal war against a competitor like <a title="" href="http://alibaba.com" data-skimwords-word="alibaba.com" data-skim-creative="500005">alibaba.com</a> or other another future online retailer portal?"</strong><br /> <br /> Google is just hoping that by combing enough metadata and background info on photos they can catch someone "violating" their patent. Average photographers would most likely not be targeted, (though you never know) but certainly this would be used against up and coming or well heeled business competitors. Being that the Patent Office would currently accept a process-based patent on changing a flat tire alot of people are submitting things like this while the going is good.</p>

<p> </p>

<blockquote>

<p><em>Prior arts</em> does not apply only to things that have been patented, but also things that are common practice.</p>

</blockquote>

<p>Yes. Otherwise I would have patented the wheel by now!</p>

<p>This patent would be rendered invalid by just about any challenge to it. It wouldn't ever get to court on an infringement case, but if it did, it would be dealt with very quickly with lots of laughter.</p>

<p>Also, how would Amazon ever know that anyone used a few of the same settings, let alone all of them.<br /><br />It's complete nonsense and should just be ignored.</p>

<p>How are they going to prove a substantial number of the criteria were utilized? But I believe it is aimed at competing sales sites, ie. their competition, possibly one of their photographers who defected, not photographers in general. I agree with Steve, it already gave me a chuckle. </p>

<p>I am weighing in a little late on this topic. You can find the patent here.<br>

http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-bool.html&r=1&f=G&l=50&co1=AND&d=PTXT&s1=8676045&OS=8676045&RS=8676045<br>

I skimmed through most of the posts, and I think there are some things that have not been adequately discussed. There was some discussion of prior art. However, patentability goes beyond just prior art, i.e. whether such and such has been done before, but extends to the issue of obviousness to one skilled in the art. Thus, even if the specific claims have not been done before, if that which is claimed would be obvious to someone skilled in the art then the patent should not have been granted.</p>

<p>Even if the patent had been granted, if the claimed material is obvious to one skilled in the art then this can be used as a defense against an infringement action. However, once the patent has been granted there is a strong presumption that it is valid, and knocking it down becomes quite difficult.<br>

When I say "quite difficult" you can translate that phrase into money, meaning that if it actually goes to court you are likely to spend upwards of a million dollars to defend against the infringement action. (A million dollars is not an exaggeration. That is a fairly typical rule of thumb in patent infringement cases.) Even after spending the money there is no guarantee of winning the case.<br>

Regarding the Amazon patent itself, claim 1 is extremely narrow. For example, you could avoid infringing on claim 1 by using something other than an 85mm lens at an f-stop of about 5.6. Using, for example, an 80mm lens at f/5.6 would probably not work because it would likely get you into the doctrine of equivalence, being so close to 85mm, but a 100mm lens would likely be different enough to avoid the doctrine of equivalence, particularly if you used an f-stop of 4 or less, or alternatively an f-stop of 8 or more.</p>

<p>Claim 2 is broader than claim 1, but even it is so specific that it would probably easily be avoided by changing the lighting arrangement.</p>

<p>Anyway, very likely, the patent is a defensive patent, and not one that Amazon is likely to enforce against other photographers, particularly small timers who are not competing against Amazon.</p>