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1-Click Smacked Down Again, While Reexam Languishes

Posted by timothy on from the waiting-game-is-rigged dept.

theodp writes "Pressed on Amazon's 1-Click patent, then-USPTO Chief Q. Todd Dickinson got testy: "I make this challenge all the time. If you're aware of prior art out there that invalidates a patent that is existing, file a re-examination. We'll be happy to take a look at it." Really? It's been 3+ years since unemployed actor Peter Calveley submitted prior art that triggered a USPTO reexamination of the 1-Click patent. Still no 'final answer' from the USPTO. To put things in perspective, 1-Click inventor Jeff Bezos once proposed a three-year lifespan for patents (later retracted), let alone patent reexams. In the meantime, other patent examiners have repeatedly smacked down 1-Click — the latest (non-final) rejection was issued on Feb. 10th with Sandra Bullock's help."

44 of 72 comments (clear)

  1. Invented? by symbolic · · Score: 5, Insightful

    Please don't say that the one-click experience was "invented" by Jeff Bezos - it completely trivializes the entire creative process. It reduces those who are truly innovative to the status of mere dilettantes.

    1. Re:Invented? by Alien+Being · · Score: 1

      "TFS didn't say he invented it. It cited him as the inventor..."

      WTF?

      I once admired Bezos for being the first big mover in Internet commerce.  And simplified transactions are cool too.

      But this 1-click patent BS convinces me that he is nothing but a sniveling little NYC cunt.

    2. Re:Invented? by fuzzyfuzzyfungus · · Score: 2, Insightful

      If you want to talk about trivializing the creative process, how about the word "content". Whoever came up with that one, a description of culture in terms of its relationship to its delivery mechanism that treats it as a sort of homogeneous goo, pulled off perhaps the most dramatic trivialization of the creative process in contemporary history.

    3. Re:Invented? by symbolic · · Score: 1

      ABC was extremely annoying with the ads for the show - it seemed like every other commercial was something to with the season opener. Like I hadn't seen it the first two hundred times. When I see that kind of "in your face" approach, I usually turn and walk away. And I did.

  2. for some large value of "1"? by Anonymous Coward · · Score: 1, Interesting

    I have an amazon account, they have all my details online, and so forth.

    But when I buy something through what they claim as "1 click", it sure seems like more than one to me.

    Is this some new definition of "1", or am I missing something obvious here? It takes several clicks just to get to the "you are about to be charged" screen. And that's assuming I have already logged in, which I usually haven't when I just want to go there and buy a CD or something.

    Well... maybe if I do all the navigation with the keyboard, it could be zero clicks, but I'm not sure that's what they mean.

    1. Re:for some large value of "1"? by something_wicked_thi · · Score: 1

      There is one click buying where you preconfigure everything like which address to use, the shipping method, and the credit card. You have to explicitly enable it in your account with them.

    2. Re:for some large value of "1"? by Rob+Simpson · · Score: 1

      Frankly, this seems like a fairly nonobvious "invention" to me - in that I can't understand why anyone would ever want to do this. At the very least I'd want one click to put each item in the shopping cart or whatever, and one click to confirm the order with information like the calculated shipping cost, delivery time, whether any items are backordered, etc.

  3. Prior Art and Sandra Bullock? by Anonymous Coward · · Score: 1, Informative

    Too bad... I thought they found prior art in 2005's "The Net" screenplay.

  4. Re:Patent This by mail2345 · · Score: 1

    I own the gene that creates that kind of critical thinking.
    So delete that comment.
    It's my property.

  5. Re:One click, two click, three click... by mail2345 · · Score: 1

    Or just patent n!=1-click purchases.

  6. required car analogy by enter+to+exit · · Score: 3, Interesting

    let us say a car manufacturer invents a wireless device that unlocked your car when you are within a certain range automatically. let us also say they patented this

    technically, there are devices that sort of do this, except you have to press a button. Suddenly every car manufacturer realizes this is a much better method of opening doors and they decide to implement the same design in their cars.

    The original car manufacturer has spend time and money conducting usability studies, adding this, removing that in an effort to give their customers greater satisfaction.

    suddenly they see every car company has copied their design and have piggy-backed on the research they spent money on, on the grounds that there is already prior art (the button keys) and the idea is obvious anyway.

    Don't the inventors of the wireless door have the right stop and say "hey you guys didn't invent this, there was something similar but it's not the same thing, we spent money perfecting the things that in hindsight seem startlingly obvious, don't steal our work"?

    1. Re:required car analogy by enter+to+exit · · Score: 1
      enlighten me, were does my analogy fail?

      I admit, I am no patent lawyer and only have basic knowledge on the 1-click dispute. Tell me what you think.

    2. Re:required car analogy by Xylaan · · Score: 4, Insightful

      Your analogy really isn't that far off, however, I think it all comes down to the invention in question.

      In your example, I think the inventive step is how your car figures out how you're close to it, but does so in a way that is effective with one half of the system required to be low power (the keyfob), and is accurate enough that it doesn't unlock while you're not present, as well as determining that you want it to be unlocked, and you're just not walking around with your keys inside your house (which could trigger it, based on how close you are). A workable, comprehensive, and accurate solution to this could be fairly non-trival.

      On the other hand, you're comparing it to the 1-click patent. Now, I think that the one-click is an excellent example of patenting it based on 'while no one has done it before, so it must be inventive'. Remember, when this patent was filed, e-commerce was still relatively new. Businesses were still trying to convince everyone that it was safe to use the internet to buy things. As such, the shopping cart analogues were the most popular.

      As part of a shopping cart system, assuming they have some sort of login (which was popular then, and is still quite popular even now), they will have information about the customer. If that customer has purchased from you before, they could even have all of the financial information necessary to place an order. At the time, however, most businesses didn't keep full credit card information on file after a transaction had completed, if for no other reason to avoid potential liability if that information was compromised. But they COULD have easily done so (as the customer had to enter it the previous time they placed an order).

      So Amazon's 'inventive' step was to say, hey, we should ask the customer if we can save this information, and then use it next time they order so we don't have to ask again. So their inventive step was storing the financial and address information in a database, and looking it up later. While it hadn't been done before, there wasn't a technical reason, but a social reason. To many technologists, the inventive step seems to be very weak, and shouldn't have passed the muster of 'non-obvious'.

      So, your analogy isn't really flawed. Just your choice of the invention is a bit stronger. A slightly closer analogy would be basing opening your door by passing an RFID-enabled keyfob over a sensor which is part of the doorframe. Its range would be only a few inches from the door. Now, that would be closer to the 1-click, as I have such a system where I work where the RFID is embedded in my work ID. As RFID enabled door locks already exist, I would hope it would be difficult to get a patent on an RFID enabled car door lock.

    3. Re:required car analogy by maitai · · Score: 1

      Uhm, this was done before, and done as how we charged Amazon (as their sole uplink) for their... well uplink.

      We call it billing.

      (IXA, Seattle, 1997)

    4. Re:required car analogy by Plunky · · Score: 1

      let us say a car manufacturer invents a wireless device that unlocked your car when you are within a certain range automatically. let us also say they patented this

      Actually, devices such as this already exist. I don't know if they are patented. I worked with a guy once (2 years ago) and he gave me a lift home. From work, he just walked up to his car and got in and pressed a button and the engine started. He had a small widget hanging around his neck and the car unlocked the doors and activated the ignition as he approached and got in.

      Even if they did patent it, the patent should only cover the technology defined in the patent not the generic 'unlock the door as the owner approaches' method, there has been prior art for that for hundreds of years, it is called having servants.

    5. Re:required car analogy by Team503 · · Score: 1

      The Corvette, among others, has had this system in place since the late 80s. It is an option. Simply consists of a low power RF transmitter keyfob that changes the electronics locks to the unlock state when in range. Nifty, but not the smartest thing. Just because I'm within 15 feet of my door, doesn't mean I want my front door unlocked.

    6. Re:required car analogy by dachshund · · Score: 1

      In your example, I think the inventive step is how your car figures out how you're close to it, but does so in a way that is effective with one half of the system required to be low power (the keyfob), and is accurate enough that it doesn't unlock while you're not present, as well as determining that you want it to be unlocked, and you're just not walking around with your keys inside your house (which could trigger it, based on how close you are). A workable, comprehensive, and accurate solution to this could be fairly non-trival.

      While I agree with this, that would only justify a patent on the specific non-obvious concepts and innovations needed to enable that system. It's not acceptable to then patent the entire concept (which would then allow you to sure somebody else for a different implementation of the basic idea).

      Unfortunately, in practice that's not how it works. The patent office routinely accepts the general claim, as long as its accompanied by some specific claims. Then once the patent is granted, companies will routinely file suit under the broadest possible claim. Of course at that point, it's theoretically possible to challenge the patent on grounds of obviousness, but it's ferociously expensive and success is not guaranteed.

      The PTO needs to be more proactive in dealing with these claims. And there should be new legislation that requires infringement suits be filed on the most specific claims first, with a heavy prejudice towards invalidation when this isn't adhered to.

    7. Re:required car analogy by theantipop · · Score: 1

      I think you are describing method claims when you refer to "the entire concept". Unfortunately, the PTO must folow the rules set forth by congress and their interpretation by the court system. It is true that mistakes are made and art is missed resulting in otherwise invalid patents. However most people around here fail to realize that the office itself is bound by law to give equal weight to both method and apparatus claims.

    8. Re:required car analogy by bentcd · · Score: 1

      Don't the inventors of the wireless door have the right stop and say "hey you guys didn't invent this, there was something similar but it's not the same thing, we spent money perfecting the things that in hindsight seem startlingly obvious, don't steal our work"?

      No. What they have the right to do is milk the hell out of their first-to-market advantage then use some of the proceeds to come up with the next new thing. If they fail to turn their invention into extra profits then either the invention wasn't all that great after all, or else they're a crappy company in which case no wonder they're having trouble. Competition is /meant/ to be hard.

      --
      sigs are hazardous to your health
  7. smack down??? by garutnivore · · Score: 4, Funny

    In the meantime, other patent examiners have repeatedly smacked down 1-Click --- the latest (non-final) rejection was issued on Feb. 10th with Sandra Bullock's help."

    I truly don't know what that sentence is supposed to mean. Is "smack down" a legal term?

    Defense: Your Honor, the defense would like to smack down the prosecution's evidence.

    Prosecution: Objection, Your Honor. The defense has not demonstrated it possesses the balls to smack us down. We'd also like to put on the record that we've had intercourse with the defense's wife.

    Judge: Objection sustained. It has been demonstrated to the satisfaction of the court that the defense has no balls. We also note that the prosecution could not have had intercourse with the defense's wife, for lack of penis.

    1. Re:smack down??? by hairyfeet · · Score: 1

      Well, I suppose it is better than putting them in a figure four leglock. I heard that is REALLY painful and the lawyers tend to wet themselves which makes for a messy cleanup for the janitor not to mention the smell in the court room.

      --
      ACs don't waste your time replying, your posts are never seen by me.
    2. Re:smack down??? by drinkypoo · · Score: 1

      It's true, your honor, this man has no dick.

      --
      "You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
  8. From May,2000 by Windrip · · Score: 2, Informative

    This is a transcript of an interview conducted 24-May-2000

    Dipshits = /.

    1. Re:From May,2000 by EGenius007 · · Score: 1

      Wait... what year is it?

      Crap, I think I overslept for my high school class.

      --
      I know what you did last summer. Just kidding, I don't work at the NSA.
    2. Re:From May,2000 by Anonymous Coward · · Score: 1, Informative

      W-o-w. Linking to an article that's almost nine years old...that has to be some kind of Slashdot record.

    3. Re:From May,2000 by idlemachine · · Score: 5, Insightful
      The summary really isn't difficult to comprehend:
      • Nine years ago the USPTO chief said "Don't whine about prior art, submit evidence of it" regarding the 1-Click patent.
      • Three+ years ago, such evidence was submitted.
      • Today: Amazon still retains the patent, while the promised re-exam has yet to occur.

      So yes, if you only focus on one element of the entire summary I can understand why you might think that its someone other than you who is being a "dipshit".

  9. I guess by buchner.johannes · · Score: 1

    patent reexams aren't 1-click ...

    --
    NB: The message above might reflect my opinion right now, but not necessarily tomorrow or next year.
  10. The problem with prior art for this patent ... by grandpa-geek · · Score: 1

    ... is that some of the prior art (the open account) can be shown to exist in Babylonian cuneiform. Does the USPTO search back to Babylonian cuneiform for evidence of prior art in business practices?

    The open account is where the customer walks into the store, is recognized by the owner or clerk, requests some goods, says "put it on my account", and receives the goods. The owner or clerk updates the account. In the one click patent the recognition is by a cookie.

  11. A more precise explanation by Dachannien · · Score: 4, Informative

    Actually, a final rejection was made on the re-exam case, but Amazon filed an RCE (request for continued examination). Essentially, as long as Amazon is willing to (a) pay the fee and (b) make some sort of submission that merits further examination (e.g., amending the claims or presenting another prior art reference they want considered), they can keep the re-exam going until the cows come home. The next action after an RCE is usually non-final - it's a bit like starting the examination process over again.

    On a side note, after the RCE and before the subsequent non-final Office action, Amazon submitted an IDS (information disclosure statement, on which they list further references they wish to have considered) that was 36 pages long. That's not a 36-page reference - the list of references itself took 36 pages.

  12. Comment removed by account_deleted · · Score: 1

    Comment removed based on user account deletion

  13. Re:Obiousness? by Dachannien · · Score: 2, Insightful

    The obviousness test relies upon prior art. If somebody does something, and nobody can show that any part of it has been done before, then surely it's not obvious?

  14. Re:Workers? by shentino · · Score: 1

    Or are:

    1. On the payroll of patent whores
    2. Working under congressional oversight by congress people who are on the payroll of patent whores

    I wouldn't be surprised if the infamous http://en.wikipedia.org/Iron_Triangle has anything to do with this.

    Usually, when a government agency makes insanely stupid decisions in the face of overwhelming evidence, someone's got a knife to their back or their pocketbook.

  15. It's a Small, Small 1-Click Patent World! by theodp · · Score: 5, Interesting

    Ironically, Stephen Levy - whose 1995 article The End of Money is now being used by USPTO examiners to reject 1-Click patent claims as obvious - reported back in 2000's The Great Amazon Patent Debate about the conversation he sat in on in which Jeff Bezos just wouldn't hear that 1-Click was obvious. Responding to Tim O'Reilly's charge that "trying to enforce a patent claim on something as obvious as 1-Click is downright selfish," Bezos countered: "When we applied for the patent, 1-Click wasn't obvious...When we introduced it, people were surprised...They called it innovative."

    1. Re:It's a Small, Small 1-Click Patent World! by mysidia · · Score: 3, Insightful

      They weren't saying 1-Click wasn't obvious. It was obvious.

      What wasn't obvious was to patent it.

      Sure they were shocked... no-one before thought such a simple and obvious thing could be classified as an "invention"

      The "innovation" was getting the patent office to recognize such an ordinary everyday thing as a number of mouse-clicks in UI design as something patentable.

  16. Re:Is it just me... by dangitman · · Score: 1

    It's just you. But I browse at +5, so I could be wrong.

    --
    ... and then they built the supercollider.
  17. Peter's Talent by mspeight · · Score: 1

    The synopsis does not reflect peters talent. Calling peter a out of work actor is like calling Ronald Reagan a to 2 bit B movie actor. Peter is much more, he is in work with our countries major TV network, He is smart and a bit of a geek, who else be an actor/director/producer and go after IT patient abuses for a hobby. Go for it peter.

    1. Re:Peter's Talent by theodp · · Score: 3, Informative

      Sorry if it came across that way; certainly wasn't the intent. Indeed, Peter's efforts here even left legal professionals impressed: "It turns out that New Zealander Peter Calveley is one of the actors who provided the motions for computer-generated elves and orcs in Two Towers. He also has been laid up of late due to an accident (I can relate). He has now put his free time to use taking on a David and Goliath effort against Amazon...I have to admit, I was quite intrigued by the whole affair given that a Request for Re-Exam is not something average citizens take on in their spare time. After some correspondence, we spoke by telephone briefly -- since I was unwilling to write about his efforts if this was all a scam. I found that Calveley is extremely bright and has his own inventions and understands computer patents and procedures quite well. He has the time and will to do this even if it won't bring him a direct benefit."

  18. Re:Obiousness? by bit01 · · Score: 1

    The obviousness test relies upon prior art. If somebody does something, and nobody can show that any part of it has been done before, then surely it's not obvious?

    There are an infinite number of reasons why things are not done. To say that something is not done implies that something is not obvious is just one more example of PTO bogus logic.

    ---

    The patent system. The whole edifice is based on handwaving.

  19. The Bilski Decision should end this nonsence by TropicalCoder · · Score: 1

    This endless wrangling about prior art should be rendered moot by the Bilski Decision anyhow - I would hope. The Bilski Decision puts the whole concept of software patents into question.

    1. Re:The Bilski Decision should end this nonsence by Theaetetus · · Score: 1

      This endless wrangling about prior art should be rendered moot by the Bilski Decision anyhow - I would hope. The Bilski Decision puts the whole concept of software patents into question.

      Not necessarily. Bilski wasn't explicitly software - he was managing hedge funds - and the decision cited State Street... favorably. The only real difference between State Street and Bilski was that State had means-plus-function claims. And in light of Bilski, PTO Examiners are now looking for a few "magic words" in claims that signify they're tied to a specific computing machine.

      Anyways, since Bilski's going up before SCOTUS, this is all irrelevant. No one knows what it really means and won't for another year.

  20. "Reexam Languishes"? by Theaetetus · · Score: 1

    The summary really isn't difficult to comprehend:

    • Nine years ago the USPTO chief said "Don't whine about prior art, submit evidence of it" regarding the 1-Click patent.
    • Three+ years ago, such evidence was submitted.
    • Today: Amazon still retains the patent, while the promised re-exam has yet to occur.

    So yes, if you only focus on one element of the entire summary I can understand why you might think that its someone other than you who is being a "dipshit".

    • the latest (non-final) rejection was issued on Feb. 10th with Sandra Bullock's help.

    So, the promised re-exam is occurring. What do people think happens during a reexamination? A big courtroom trial? No... Reexaminations are ex parte - the patent owner vs. the USPTO examiner, same as the original examination. And they result in things such as non-final rejections.

    1. Re:"Reexam Languishes"? by Anonymous Coward · · Score: 1, Insightful

      I believe you miss the point. If the re-exam happens to take as long as the patent has left to live, and this sure seems like it could, how does the re-exam help? If the system for fixing things happen to be unable to fix things before they are no longer relevant, then there *isn't* a system for actually fixing anything.

  21. Prior art seems never to be looked at. by Archeopteryx · · Score: 1

    When Palm/3Com were losing the Graffiti fight to Xerox, I gave them a published article from a IEEE journal on the "SCANC" system that was almost identical to both Graffiti and the Xerox patent and which should absolutely have been accepted as prior art.

    Nope.

    The system is broken, and Mr. Dickson and everybody else involved needs to be cashiered at once.

    --
    Dog is my co-pilot.
  22. Comment removed by account_deleted · · Score: 1

    Comment removed based on user account deletion