"Patent attorney’s like myself find these articles rather uninformed. Prosecuting a patent before the USPTO nearly always (+95%) involve an Office Action in which an Examiner at the USPTO searches the prior art and then presents one or more prior art based rejections. The job of the patent attorney is to argue the claims of the patent in terms of novelty and non-obviousness over the prior art.
The file wrapper, which is available to anyone at this Government website who can complete the USPTO’s CAPTCHA and enter the US Patent No. (which is 8,676,045 for this patent), provides this dialog. In the prosecution history for this patent, you can see an Office Action (search “Non-Final Rejection” in the “Image File Wrapper” tab) and the patent attorney’s reply, prior to issuance of the patent.
Now, I’ll be the first to admit that the Examiner’s often do not present the most likely or on point prior art, but to say that granting the patent doesn’t involve prior art is incorrect. We can debate whether a granted patent amounts to anything and a lot of that depends upon context.
Finally, what so many get wrong (both journalists and the public) is that patent infringement hangs on the claims. That is, the claims define the scope of the invention. The detailed description/specification provides various examples in support of the claim. The Title is often vague due to case law imputing narrow title limitations into the claims (so never depend on the Title when exclaiming what someone has “patented”). In this patent, the claim is something like a page and half long, having over 7-8 features, each of which you would have to prove before a court that the alleged infringer has done in order to be awarded damages.
Indeed, in reviewing the claims, Amazon hasn’t just patented “taking photos with a ‘near perfect’ white backdrop,” but according to the claim for Amazon’s patent, I would argue that Amazon patented a very involved and strictly defined way (the’re even ratios in the patent so avoiding infringement would be as easy as having slightly different ratios) by which to take photos with a “near perfect” white backdrop.
Hope that helps. I know few patent attorney’s bother (and we’re a rare breed with only ~70K of us registered patent agents from the start of the patent system), and I’m probably wasting my time because it makes for less dramatic coverage, but I would like the anti-patent vibe on cites I otherwise enjoy to be less sensational and more informed.
As a patent attorney myself, I can say that what this particular patent attorney misses is "the forest for the trees"
The point is that patenting the idea of taking photos against a white backdrop with certain ratios is ridiculous, whether you can tweak the ratios to avoid infringement, or whatever.
Yes, someone got paid to turn it into a half page claim "that would have to be proved to a court". Great. That's not hard for a patent agent to do, that's what we are paid to do. It is completely irrelevant to whether this patent should have ever seen the light of day.
His entire comment smacks of "it's okay, because it may have been a lot of work to get this patent!"
> patenting the idea of taking photos against a white backdrop with certain ratios is ridiculous
Is that really obvious? I haven't studied the patent from top to bottom, but I did look at the claims, which seemed extremely narrow. I'm only an amateur photographer, so I can't rule out -- at least not on a brief reading -- that this particular combination of elements might produce some novel effect.
Anyway, of all the bad patents coming out of the PTO, this doesn't seem to me to be one of the ones to be most concerned about. It's extremely narrow, and on top of that, how would they ever detect infringement? Is there any chance they could tell, by looking at an image, that it was produced exactly this way? I rather doubt it.
The question I always come back to is, is the cost to society of granting a monopoly on this technique outweighed by the intellectual contribution of the idea? In this case, the cost seems so small that I'm not even sure it's worth my time to figure out whether there was any intellectual contribution at all.
The combination of elements is descriptive, not proscriptive.
There are clauses elsewhere in the patent that greatly expand the claims so you do not have to have copied the exact description in the claims to be infringing, as long as your setup is similar and is aimed at achieving the same end result.
> Prosecuting a patent before the USPTO nearly always (+95%) involve an Office Action in which an Examiner at the USPTO searches the prior art and then presents one or more prior art based rejections.
I recently replied to a non-final office action on a patent I helped write. I was ready for battle, having 20 years ago rescued a patent written by other inventors that came back with dozens of patents cited as reading on it. It took days to research and respond to each item in that office action.
This time, the office action must have been written on Friday afternoon during a busy session on Farmville. Only the first few claims had specific references and the rest were rejected "by ditto." Only one patent was cited as reading on this patent. Responding was so easy I had to read the fairly brief office action three times to assure myself that was it.
Now that's just two data points, and maybe this newer patent is lucky to be for an unusually clearly novel device, but I have reasons to think it is in a field with lots of patents.
The difference in care taken by the examiner looks astounding. That first time I worked on saving a rejected patent, I ended up flying to DC with an expensive patent lawyer and demoing the invention to two examiners. Does that even happen anymore?
I think standard practice these days is basically to reject most patent applications once and then accept them if the applicant bothers to resubmit - the USPTO doesn't have the resources to actually investigate applications in depth, and any examiner who tries is at risk of losing their job for not meeting their targets.
"Patent attorney’s like myself find these articles rather uninformed. Prosecuting a patent before the USPTO nearly always (+95%) involve an Office Action in which an Examiner at the USPTO searches the prior art and then presents one or more prior art based rejections. The job of the patent attorney is to argue the claims of the patent in terms of novelty and non-obviousness over the prior art.
The file wrapper, which is available to anyone at this Government website who can complete the USPTO’s CAPTCHA and enter the US Patent No. (which is 8,676,045 for this patent), provides this dialog. In the prosecution history for this patent, you can see an Office Action (search “Non-Final Rejection” in the “Image File Wrapper” tab) and the patent attorney’s reply, prior to issuance of the patent.
Now, I’ll be the first to admit that the Examiner’s often do not present the most likely or on point prior art, but to say that granting the patent doesn’t involve prior art is incorrect. We can debate whether a granted patent amounts to anything and a lot of that depends upon context.
Finally, what so many get wrong (both journalists and the public) is that patent infringement hangs on the claims. That is, the claims define the scope of the invention. The detailed description/specification provides various examples in support of the claim. The Title is often vague due to case law imputing narrow title limitations into the claims (so never depend on the Title when exclaiming what someone has “patented”). In this patent, the claim is something like a page and half long, having over 7-8 features, each of which you would have to prove before a court that the alleged infringer has done in order to be awarded damages.
Indeed, in reviewing the claims, Amazon hasn’t just patented “taking photos with a ‘near perfect’ white backdrop,” but according to the claim for Amazon’s patent, I would argue that Amazon patented a very involved and strictly defined way (the’re even ratios in the patent so avoiding infringement would be as easy as having slightly different ratios) by which to take photos with a “near perfect” white backdrop.
Hope that helps. I know few patent attorney’s bother (and we’re a rare breed with only ~70K of us registered patent agents from the start of the patent system), and I’m probably wasting my time because it makes for less dramatic coverage, but I would like the anti-patent vibe on cites I otherwise enjoy to be less sensational and more informed.
Best, MKG"
http://www.theverge.com/2014/5/8/5696356/amazon-inexplicably...