Time to BOYCOTT Amazon?

[Inkanyezi]

Notwithstanding that the patent should never have been granted, due to former art, it is virtually impossible to infringe the patent.

Where, on the face of Earth, could a ten or twelve kW tungsten light source be contrived, and what 115 V circuit would accept that load?

Patent claim 14:

14. The studio arrangement of claim 12, wherein the first rear light source further comprises a ten kilowatt light source.

Patent claim 22:

22. The studio arrangement of claim 12, wherein the front light source further comprises a twelve kilowatt light source positioned at a distance from the elevated platform that is about two to three times the first distance, the second rear light source further oriented at about a five degree downward angle relative to a floor level.

To me the whole thing looks as a joke. Amazon has fooled the Patent Office to grant a patent for a pretty standard lighting solution, that comprises impossible lamps that couldn't even be powered by any studio circuitry. Where would I get 40 kW of power (115 V, 350 A), and where would I get those tungsten light sources of 10 and 12 kW emitting a colour temperature of 3200 K?

I have no idea to why they spoiled their money on this patent, but it is utterly useless.

[Simon Garrett]

Inkanyezi,

This is true, it would be pretty easy to avoid infringement of these two claims.

But they are dependent claims, often inserted for clarification of the meaning of the independent claims, which in this case are claims 1, 2 and 25. The independent claims are the broadest, and most likely to be infringed. An infringer has to be shown to infringe each and every element of a claim, including any fiddly "wherein..." bit at the end.

There have to be lights and light shields situated exactly as in the claims. Move the lights so one word no longer applies, and you don't infringe.

...a top surface of the elevated platform 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.

I should think "substantially similar" and "substially imperceptable" could keep lawyers debating for days.

I seriously doubt this was written with the intention of trying to enforce it. Let's hope Amazon don't sell it to a patent troll with fewer scruples. This is the danger with a patent like this.

A well-funded company comes along to a photographic studio and says "you infringe our patent, pay $1,000 a year" or we sue. The studio calls their lawyer and says "we don't infringe". The lawyer says of course you don't, but it will cost you tens or hundreds of thousands to defend the suit, even if you win. You might as well pay.

One or two studios fight, and there's always the chance that they lose. In the US especially, patent cases are tried by juries who haven't a clue about patent law, and can be swayed by clever lawyers. Remember that professional people normally don't serve on juries: they can find ways of avoiding it. Generally it's the more clueless that end up on juries in the US. So you get the justice you can afford.

[Inkanyezi]

They tried to cover it up, by in the description making claims not stated in the patent claims, which would cover virtually any situation.

But the patent is void, due to prior art:
http://www.gregrphoto.com/blog/2007/...omment-page-1/

The only claim that is different from the lighting and arrangement suggested by Greg Reich is positioning of the main light source. This claim is rather strange, as the position in the patent is one that causes very flat lighting, which in most cases would be undesirable.

But as prior art can be found rather easily, the whole patent is void.

[Simon Garrett]

They tried to cover it up, by in the description making claims not stated in the patent claims, which would cover virtually any situation.

But the patent is void, due to prior art:
http://www.gregrphoto.com/blog/2007/...omment-page-1/

The only claim that is different from the lighting and arrangement suggested by Greg Reich is positioning of the main light source. This claim is rather strange, as the position in the patent is one that causes very flat lighting, which in most cases would be undesirable.

But as prior art can be found rather easily, the whole patent is void.

Not necessarily.

That web link would be relevant prior art for the general case, but where there is a difference (e.g. positioning of the main light source) then that aspect is patentable. Small increments on existing "art" can be patentable, so long as the small increment creates something novel, non-obvious and potentially useful.

If the described lighting arrangement achieves something not achieved by the prior art, and it's not obvious, then it's patentable. But only that new step.

Claim language is always rather strange. There's a set way of writing claims, and usually the language has to tip-toe around prior art. By the time it's been back-and-forth to the patent office a couple of times, you can end up with very strange language. This one is particularly dire, and I'm not sure I've ever seen such a long claim as Claim 1 here.

By the way, what they put in the description doesn't affect the claims. The only thing that can be infringed (or not) is what's in the claims. The description is necessary, as there must be enough background description to describe what's novel and how to use the invention. The fact that there's stuff in the description not in the claims doesn't mean they're hiding something. You have to describe how to use the invention ("the preferred embodiment") in the description. This is because you can't patent something that can't be implemented. I could patent walking on water:

1. A method for transport over a liquid surface characterised by placing one foot after the other over the surface of the liquid...

However, unless I can describe in the description how that can be implemented with enough detail to allow an expert in the field to replicate my invention then my claim is not valid.

My patent for walking on water is still in draft.

[Inkanyezi]

But on my latitude, we do walk on water, although only in the winter. I guess prior art will render any claims invalid.

[Simon Garrett]

But on my latitude, we do walk on water, although only in the winter. I guess prior art will render any claims invalid.

I did say liquid surface. And I should have to add something like "...and further characterised in that the placing of the foot on the said liquid surface does not displace any liquid, nor sink into the liquid." I can walk on water now in the manner I described, but my feet don't stay on the surface. That's been done before, so is probably prior art. And I'd have to make sure I excluded boats, ships, water skis, rafts, surfboards, hovercrafts, hydrofoils... Some redrafting needed, I think.

Frankly, the level of novelty and inventive step in many patents granted is pretty thin. But we (society) get what we pay for. If patent offices required more than just "some" (i.e. any) novelty and inventive step, and did thorough prior art searches, then a patent application would cost hundreds of thousands of $/£/€, and only big corporations could ever afford them. As it is, only 1-2% of granted patents are ever used (except for never-mind-the-quality-feel-the-weight trade-offs between big companies when settling disputes: you might work out damages purely on the relative number of patents each company has in the relevant area). And of those 1-2%, only a small proportion get litigated over. So arguably what happens is that the serious examination of patents gets deferred to the tiny proportion that get litigated over, when megabucks are spent on lawyers.

Top flight US patent lawyers charge $2-3k per hour. And when you're in a meeting with 10 of them...

[Inkanyezi]

There are a few things that puzzles me about this patent. It describes a method, but they cannot possibly have asked a photographer, as I know that same method has been used for at least about fifty years, probably much more.

"Embodiment" is mentioned, and I take it as a very concrete word, which is not applicable on a method, as methods are not embodied, but applied or performed. I guess the semantics is some kind of lawdribble. The application of the method is far from new, and it is not an industrial process per se, but a method applied in a craft, an art. I cannot find a single novel idea in the whole patent application. It is all old stuff that anyone could have learned from various books about the craft, or at least doing a brief websearch. The method, even though used when taking photographs, cannot infringe the patent, as the method is not proposed to any customer. Photographers sell images. Applying a method in a craft cannot possibly infringe a patent. Maybe in the USA, and it should be noted that this is a US patent. It will not pass as easily in any European patent office. At least here in Sweden, better search of prior art is performed.

So only in the USA would anyone have to worry about a lawsuit.

The other thing that's puzzling is the multitude of numbers, none of which is related to the art or says anything about the lighting. We don't use kilowatts to describe light, and scientifically, it is defined by lumens, candela and lux, where the last is the best way to describe illumination. But the numbers are also quite hilarious. Imagine forty kilowatts in a studio. I have used about two kilowatts in the old days when we used tungsten lighting, back in the sixties, and I promise that it is really too hot for portraiture, and even some objects cannot stand it for very long. Flowers or paintings or food would be harmed by such light sources, and people get very uneasy. And things catch fire. Did I mention Windsor Castle? Kilowatt is not a lighting unit, but it is relevant to heating.

Then why should the camera have an 85 mm lens? Strange that the sensor size is excluded.

So they won't spend any megabucks on lawyers when I apply the method, as I am not in the USA. It would be interesting to see if they try to get an international patent, claiming priority from the first one. It won't fly.

[Simon Garrett]

I struggle to see anything in this either.

The patent has to be novel. That is, something about the arrangement of lights or the application to which they're put (e.g. achieveing a "substantially seamless background ") has to be new, and not thought of before. The novelty has to be other than trivial. For example, if all cars up to now had been black, you couldn't patent white as a car colour, unless there was something novel about its use. You might be able to claim novelty in white cars as a way of keeping cooler in summer, provided no one has done that or published the idea before. In this case, "substantially seamless backgrounds" by arrangement of background material and lights is not a novel concept. It's been done before. The fact that someone hasn't suggested exactly this combination of number and position of lights isn't sufficiently novel, IMHO.

The patent has to be inventive. In other words, there has to be some tiny spark of genius in coming up with the idea. Emphasis on "tiny" in most of the patents I've seen. The idea of using white paint to keep a car cool might have been novel at some time in the past, but it would have been obvious to any auto engineer thinking "how do I help keep my cars cool in the sun?" so it probably could never have been inventive. In this case "substantially seamless backgrounds" by number and position of lights and background isn't inventive either, as far as I can see.

The patent description doesn't attempt to distinguish this from prior art (it doesn't even mention prior art studio lighting arrangements). It just says that it achieves background separation without green-screen, chroma key or similar, by creating a very bright background. Well, duh... I can't see how it guarantees a pure white background, other than talking of a 10:3 power ratio.

On your other points: yes, "embodiment" has a specific patent meaning. You have to give at least one "embodiment", that is, a real-life description of how someone can use the patent claim. Patent claims can be "method" claims (describing a method of doing something, comprising...) or "system" claims (describing a system for doing something, comprising...). This patent has both, and there are legal reasons why people generally describe the same thing both ways.

It's US-only, so it could affect photographic studios in the US, but nowhere else. It could affect companies selling equipment that implements this patent in the US, or people importing equipment that implements this patent into the US. However the patent owner would have to show that a significant part of the value of the equipment arises because of it's ability to infringe the patent. Not likely, I think.

I'm sure this is not enforceable, and Amazon must know this. Why they bothered filing is not clear to me, unless it's for defensive purposes (and you'd need to know what they expect to need to defend themselves from).

[pnodrog]

Back in the 90's I was involved in a project to develop an auto door opening control system that would avoid conflict with an existing patent. The patent application was successful but the company that commissioned the development never proceeded to manufacture it. They simply wanted the existence of the patent as leverage to obtain the best possible price and on going supply from the company that held the original patent.

The development team were a little disappointed because we felt our approach was slightly better. However the costs involved to take the product to manufacture simple was not worth it in light of the deal they secured from the other manufacturer.

No doubt there are many patents filed for strategic reasons and I think Simon's conclusion above may well true.

[Inkanyezi]

There are implications other than suing that can be important to a patent, as impeding that someone else patents. However, that goal also is secured by simply disclosing the invention. But I cannot see any invention in this patent. Every single part of it that is not self-evident is old stuff that was already known.

Here's where this patent becomes enigmatic. It does not describe the state of the art or problem to be solved except one minor point of the problem, the seamless junction between the reflective surface and the background.

And the only number in the whole array that makes any sense is the 10:3 ratio. All other numbers are irrelevant to the problem or solution.

It is also puzzling that no reference to any unit describing light is used, although units as watts are mentioned which are quite irrelevant. Light can be described as the light emitted or reflected from the surfaces (cd/m²). Light can also be described as the light falling upon a surface, the unit is lux. Only the former is relevant to the problem solution, as reflectivity of the main subject may vary greatly. Thus the suggested ten to three ratio may be counter-productive depending on subject reflectance. However if we describe the lighting as what's received from the respective surfaces (cd/m²) and suggest a range it can be used for any type of subject, although it does not change the underlying fact that there is no novelty.

The patent describes, in a very complicated way, a simple standard solution to a standard problem, a problem that has existed since photography was invented, and a solution that has been used for well over half a century.