Canadian Court Says Amazon's One-Click Patent Should Be Allowed
from the one-click-to-patent-insanity dept
Ah, Canada. We thought you were so reasonable last year when your Patent Appeal Board rejected Amazon's one-click patent north of the border, and said that it wasn't in favor of either software or business method patents, stating:"since patenting business methods would involve a radical departure from the traditional patent regime, and since the patentability of such methods is a highly contentious matter, clear and unequivocal legislation is required for business methods to be patentable."Of course, Amazon appealed, but who would go against such a reasonable argument? The Canadian courts apparently. A Federal court judge in Canada has ruled that the one-click patent should be allowed, as should business method patents. Apparently, someone hasn't been paying attention to the disaster that is business method patents south of the Canadian border. While the judge quotes liberally from patent laws around the world, he does not seem to take into account how much damage such patents do. It's a shame.
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Filed Under: business methods, business models, canada, one-click, patents, software
Companies: amazon
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What did Scalia call this? Looking over the crowd to find your friends, or something like that.
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Is it possible that perhaps it really was new, useful and non-obvious?
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Re:
Not if you know anything whatsoever about technology.
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Marketing Background
It has been my experience that people in marketing usually only have a superficial understanding of technology and often have very flexible ethical standards.
Ronald J. Riley,
Speaking only on my own behalf.
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.
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Re: Marketing Background
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Re: Re:
Are you suggesting that you understand the relevant technology such that you are able to call yourself a PHOSITA?
Many, many persons with knowledge of the relevant technology have examined the claimed invention and arrived at the conclusion that it is new, useful and non-obvious based on the prior art as of the time the invention was created. Apparently you believe you know something about the technology that they do not. Might you be holding a "killer" piece (or pieces) of prior art that has as yet to be examined?
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Re: Re: Re:
So we take what is obvious to a great many many people of above average skill and then grant the first one to file the application a 20 year monopoly! That is outrageously foolish and stifling.. and unconstitutional in the US.
How do you stifle progress? You tie the hands of a quarter of a million of your smartest folks for 20 years. Force them to try and find a way around an obvious and fairly optimal solution while instead they could be trying to invent or innovate elsewhere.
.. and while they try to innovate around an optimal or near optimal solution, maybe for not being able to compete effectively some of their employers would go out of business or simply have to lay them off. Now, we have tens of thousands of very smart folks forced to invent around something obvious (or quit trying to do so) and without a job. Thanks to our monopoly for an invention that was merely non-obvious to a PHOSITA!
Could you imagine if the first person to send a message to their friends using their cell phone using the Internet had tried to patent that and gotten away with it? We'd have to wait 20 years or waste time trying to invent around what would have been or would become obvious to many as the need arose.
What an anti-social creep some might think.
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Re:
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YES!
Boom! Do you have any idea how many clicks are saved everyday because Amazon shared this with the world through this patent. Do you? Well, I asked an expert and he said 23462664763245627.001 clicks are saved every day. That's enough energy to power the entire sun for 10,000 years. So, next time you enjoy a sunny day, remember.. you have Amazon to thank.
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Junk Patent Problem Yet Again
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The thing you need to understand about Canadian Judges
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That's the least of our problems...
If you think this is a bad Canadian court decision, consider that this year canadian Federal judges have also ruled that a suspect has no right to council during questioning, no miranda rights like in the US, and in Toronto where 1000 people were arrested and caged during the G20 for peacefully protesting. Many still on bail are forbidden from speaking to the media.
Our Prime Minister, who comes off like a jerk internationally (witness our complete failure to get on the UN security council this week), was part of an organization before he was elected that had much, MUCH more extreme views on freedom of speech and copyright than his own party (and several authors have said over the years that he personally told them - back in the day - that he felt their books should have been banned). He is renowned as a control freak, and our government is now in lock-step with him. Scientists now need permission to publish the results of their studies. Freedom of information laws here have been rubbish for years, and we just found out that some of our civil servants have been accessing the private medical and mental health records of citizens/political opponents they don't like.
Canada is a very scary country under the Conservatives, and is somewhat less likely to change under the Liberal party (one of our 5 left-wing or left-centre parties - come on, get it together guys) because most of our copyright nonsense is driven by the quasi-monopoly of 3 big telcos. Keep an eye on Canada - and don't feel you must be polite anymore, because we certainly don't.
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ridiculous
Apparently not as it has been upheld in the US and Canada. What is ridiculous is you keep ragging on all patents. If that is not bias, what is?
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Re: ridiculous
Your shilling?
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Re: ridiculous
One major problem with software patents is that they don't fit into what patents were designed to protect (for better or worse) and end up being a very horrible fit.
For starters, copyright is in effect pre-empted by patents for software (eg, http://www.law.cornell.edu/uscode/17/102.html#b ). This means that patent holders are "stealing the property" of copyright holders.
No matter your views on IP, most everyone would agree that "I" should always be allowed to use whatever I create mostly originally. Software patents are ending that for a very large number of people and their works. Note that this is not the case when you create yourself the content of normal patents since almost no one is capable of doing so and in high volume so as to pose a threat to any patent inventor (assuming we are accepting the patent monopolies).
See for example http://en.swpat.org/wiki/Why_abolish_software_patents
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Re: Re: ridiculous
Rather, it's denying people from pressing a button (with a single click -- no relation to the Amazon patent) so to get their original free speech just having been typed so that it starts running and also is simultaneously shared with millions of others.
In other words, we aren't just denying original self-expression of a physical work, but are denying written speech itself and further denying the trivial/automatic transformation of that written work.
Again, see http://en.swpat.org/wiki/Why_abolish_software_patents
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Re:
I consider them to be unconstitutional abridgments of rights and stifling of progress and likely not even supported by current law.
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Join me and boycott all companies that use software patents. Who needs Amazon? Patents go against their very nature as a start-up. To prohibit me from using a 1 click method in my software without paying them makes me want to do it and advertise it. 1-Click. Someone trademark the words and then their patent means squat.
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Shipping American Inventions to India & Elsewhere
Inventors also form start-up companies and they enjoy higher profit margins, faster growth and pay better wages. In addition, their ability to exclude others ensures higher profits.
Of course, when an invention creates higher profits it is inevitable that others will try to profit on the pioneer's work.
That is the essence of the argument between those who invent and those who want to unjustly profit from someone elses invention. Those who invent and those who combine others work and call themselves innovators.
Another aspect of piracy of inventions is that when transnational companies do so they ship both the invention and prosperity those inventions represent to places like India.
Ronald J. Riley,
Speaking only on my own behalf.
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.
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Re: Shipping American Inventions to India & Elsewhere
Additionally there is likely much "prior art" (in real terms if not according to the legal definition) and the patent office surely did not look (the law only requires them to look in narrow places, many of which they don't even do unless the author points at it themselves).
There is also much to suggest software is not patentable in the first place according to current law, just as many things today are not patentable not even if they are so advanced that geniuses did not figure them out and Nobel Prizes were eventually given (Einstein for example, worked in a patent office yet bypassed patent monopolies in order to contribute freely of very significance in an area not poisoned by patent monopolies).
Finally, software patents are almost surely unconstitutional for not promoting the progress, not helping the general welfare, and for abridging free speech (most notably, original free speech).
Oh, and the patent directory doesn't even serve its purpose, as anyone that spent their time there looking would hardly have time to come up with something fairly original and develop it even assuming they could decipher the implications of the broad patent claims they'd find.
It seems that software patenting is for the greedy and anti-social (and who can pass a very low bar), and that the best contributions to humanity in the software field in loads are not patented nor motivated by patents.
But don't feel shamed. I'm sure it's purely business for you and for other software patent supporters.
[and I do wish I weren't being aggressive towards you, but I do find it insulting for sw pat supporters to try and smear good people in order to try and prop up filthy actions of the very greedy.]
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Programmers Blinded
My inventions were framed as hardware because there was not much case law on software patents at the time I was filing.
And the fact that inventions can often be implemented either as hardware or software is the reason that software should be patentable and that the law of the land is that software is in fact patentable.
Stealing others property is anti-social and all the rationalizing in the world does not change that fact.
Ronald J. Riley,
Speaking only on my own behalf.
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.
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Re: Programmers Blinded
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Re: Re: Programmers Blinded
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Re: Programmers Blinded
Math, fiction, law, jokes .. anything can be implemented as hardware because hardware can simulate information (in particular the digital) and these are patents largely implementable as information processing.
The conclusion you suggest does not follow, easily disproved because math, fiction, law, and jokes are not patentable.
We do have much to be thankful for to the Information Age, and one thing is that the patent monopoly crutch arguably necessary in some high capitalization industries are no longer necessary (and clearly do damage to progress and to liberties).
>> Stealing others property is anti-social and all the rationalizing in the world does not change that fact.
Those trying to enforce software patents are stealing the copyrighted and hard work of many many people.
Meanwhile, the people that created those works are being accused by software patent supporters of stealing because the software patent supporters are improperly invoking a law that, if it stated what you suggest, then is clearly unconstitutional for abridging the rights of the people and for stifling progress.
Maybe I should interpret the laws about murdering to suggest that those that write comments against (in particular, independent) free expression are murdering.
You are a murderer Mr. Riley. I'd rather be a thief than a murderer. Murderer!
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Good for Amazon.
"I do find it insulting for sw pat supporters to try and smear good people in order to try and prop up filthy actions of the very greedy."
Two more self-contradictory statements would be hard to find. Mr. Riley is a good and honorable man who attempts to use logic and reason. Even if you disagree with him, he does not deserve that smear and making it shows your weakness, rudeness, inconsideration and disgusting stupidity. You owe an apology so you don't look so foolish.
As to the substance of the Amazon decision, it is logical and well-reasoned, not insanity, and it IS the law now in Canada. Amazon is now the world's largest online retailer, and one-click is just one of the reasons that an Amazon shopper chooses them. (Price and selection are two others that come to mind.) Hindsight is 20-20 but the indisputable fact is that back when Amazon came out with "one-click ordering" it revolutionized online ordering. It solved a long felt need (for quicker less cumbersome online ordering), was a resounding commercial success (gave Amazon the jump on Barnes & Noble), and was recognized widely as a major improvement. Saying it would have been obvious is easy for self-aggrandizing naysayers like many on this list, especially a decade later. However, saying it is so does not make it so, and backing up the BS with proof that it was obvious at the time it was filed is much harder. The fact remains, as noted in the Canadian decision, that it was never proven obvious, despite intense examination. Possession of knowledge sufficient to make an invention even coupled with knowledge of the problem solved by the invention is not sufficient to prove obviousness. There has to be a specific suggestion in the prior art.
Criticize the one click patent all you want, but recognize you are on the losing side, at least for now. And dear naysayers, don't infringe the now valid patent for it in Canada, which infringement will be most difficult to avoid if using one-click on a website likely to make it to Canada.
Was this patent bad for software development? That is also a BS argument. This patent has spurred intense development efforts at getting around the patent technically, and those efforts have undoubtedly progressed the art of online ordering technology. So, rather than retarding progress, the patent HAS promoted progress of the useful arts. Allowing free piracy of inventions, on the other hand, now that would retard progress.
However, all that being said, there is good room to argue that 20 years exclusivity is too long for a software patent. The software art progresses so rapidly that 20 years is forever (even dating from filing and even assuming a big chunk of that is lost due to PTO delays.)
The better argument against this patent is that Amazon likely would have come up with this technology even if there were no patent, as having one-click ordering is more efficient and makes impulse buying more likely and thus generates more sales, even if the competition could copy it.
Amazon can hardly be faulted for using the legal system to its advantage by obtaining a patent that is proving to be quite troublesome for competitors. I recall their suit against Barnes & Noble right before the 1999 Christmas season, and how disruptive to B&N that was. In fact, B&N never recovered in their online business, which Amazon now dominates. Amazon is the number one online merchant, Barnes and Noble is 42nd.
http://www.internetretailer.com/top500/list/
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"I don't think the problem is failure but greed because there is so much easy money at stake for some (at least before everything shakes out) if the injustice of software patents is accepted."
Leaping logic. First assume there is a "problem". Second assume there is a "failure". Next, assume there is "easy money at stake". Finally assume there is "injustice" in software patents. Now based on the conclusory assumptions, all arguably false, conclude the reason is greed.
Businesses are by nature "greedy". If you want to outlaw greed, you are not a capitalist or an imperialist, but rather communistic (from each according to his ability and to each according to his need). Note, the Chinese switched to a largely capitalistic system, in many ways more capitalistic and unregulated than ours, and look where they are. A greed-based economy is our system. Greed is what motivates many inventors, i.e. the thought of getting rich. Would you deprive inventors of their greedy dreams? Now, that would really put a restraint on invention that the founders did not envision when empowering Congress to provide a reward to authors and inventors in Art. 1, Section 8, Clause 8. You see the founders recognized that "Greed is good" just as is "liberty" and "the pursuit of happiness". In our system we mollify the unequal wealth greed produces with progressive taxes, welfare, and other redistributions of wealth, but we do not do it so as to remove the motivation of greed. Greed after all is the essence of the American Dream.
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Re: Good for Amazon.
It seems you had no interest in reading my comment.
I mock him for calling people thief wrongly.
>> Hindsight is 20-20 but the indisputable fact is that back when Amazon came out with "one-click ordering" it revolutionized online ordering. It solved a long felt need (for quicker less cumbersome online ordering), was a resounding commercial success (gave Amazon the jump on Barnes & Noble), and was recognized widely as a major improvement. Saying it would have been obvious is easy for self-aggrandizing naysayers like many on this list, especially a decade later. However, saying it is so does not make it so, and backing up the BS with proof that it was obvious at the time it was filed is much harder.
Oh, the law is that the patent must not be obvious to a person having *ordinary* skill in the art.
This is an example of a patent that, not only violates the US Constitution on free speech and promote the progress criteria, but is fairly obvious to a lot of people having *above ordinary* skill in the art.
The 20 year monopoly granted is very sad, and I expect a lot of people will not abide by that unconstitutional patent (or have even heard of it).
>> The better argument against this patent is that Amazon likely would have come up with this technology even if there were no patent, as having one-click ordering is more efficient and makes impulse buying more likely and thus generates more sales, even if the competition could copy it.
This partly contradicts what you stated earlier that this was great for progress and "piracy" would retard progress.
Fact is that something that many independently develop now could add costs to all of those groups on account of this patent. You are taking away people's hard independent work and copyrights by this unconstitutional patent. Many above ordinary skill developers find that "invention" rather obvious.
It's only a matter of time before that unconstitutional patent gets recognized as such by the US Courts (at least indirectly.. and unfortunately I am making a future prediction call).
>> Amazon can hardly be faulted for using the legal system to its advantage by obtaining a patent that is proving to be quite troublesome for competitors. I recall their suit against Barnes & Noble right before the 1999 Christmas season, and how disruptive to B&N that was. In fact, B&N never recovered in their online business, which Amazon now dominates. Amazon is the number one online merchant, Barnes and Noble is 42nd.
So an unconstitutional patent distorts the market and hurts consumers by lowering competition?
Not all companies would take advantage of bad laws or nearly to the same extent as others. For example, for years, Microsoft abused a loophole in the law designed to help start-ups (stock options tax benefit). This allowed them to make free money (to the tune of 5 billion usd in 1999 alone) from taxpayers and which obviously made it more difficult for actual start-ups to compete against Microsoft who was already making profits hand over fist and had monopolies. Yes, it was badly designed law, and not every company pounced on it as did Microsoft.
>> Leaping logic. First assume there is a "problem". Second assume there is a "failure". Next, assume there is "easy money at stake". Finally assume there is "injustice" in software patents. Now based on the conclusory assumptions, all arguably false, conclude the reason is greed.
"problem": software patents stifle, abridge free speech, and twist markets hurting consumers
"failure": I didn't make that assumption. Reading carefully helps.
"easy money at stake": again, reading carefully would show that I specified "for some". I hope you don't deny that qualified statement is true.
"injustice": absolutely.
"greed": for some it is very true. I don't know Mr. Riley's precise motivations, and that is one reason I phrased that comment as an opinion (a guess/ I "think").
>> Now, that would really put a restraint on invention that the founders did not envision when empowering Congress to provide a reward to authors and inventors in Art. 1, Section 8, Clause 8. You see the founders recognized that "Greed is good" just as is "liberty" and "the pursuit of happiness".
They qualified that section with "to promote the progress" and software patents are not promoting the progress.
They also amended the Constitution with the First Amendment.
See we all have some degree of greed, but we have a great many laws and regulations in place to keep greed in check. You can't murder me just because you are greedy and want my money (to use one example of how greed must be placed in check). We need checks and balances so that everyone can be a little greedy and have something for themselves.
Amazon wants the whole market, sure, but we can't just allow them to do whatever they want. If we allowed Barnes and Noble to have done whatever they wanted, Amazon might not even exist.
By the way, note that "greed is good" is from a movie. It is not in the Constitution. "pursuit of happiness" is in the Declaration of Independence. "Liberty" on the other hand, does appear in the Constitution proper and as amended.
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Re: Re: Good for Amazon.
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Re: Good for Amazon.
This is a generic claim you are making, and I would like to add context by way of analogy.
When a particular approach to solving a problem is near optimal and relatively easy for many to deduce and implement, giving a monopoly to someone for it (besides an abridgment on liberties) is extremely foolish.
Imagine if the first person to realize that keeping the front of their shop clean during open hours helped business significantly was given a monopoly on that practice (some people have tried to patent business methods). This would give one company a significant advantage. While others are trying to find ways around this, they spend a lot of time and money that otherwise could be spent to improve their services and products for the customers or innovating in more efficient ways. They end up losing business and market share. The one with the patent can lower the quality of their offering because they have a clear advantage by being the only one allowed to maintain their store front clean. The result for customers is that rather than to find competition for products and services among many clean looking shops, they will have to pick to go with either lazy service/products from the only clean looking shop or else go to a dirty looking shop to find such competition. This setup is wasteful, less than efficient, and leads to less for the customers. The creation of this patent monopoly on being able to clean the front of stores throughout the day stifles progress, as many that could have been working to improve their products, services, and otherwise allocate their resources more efficiently and benefit from their hard work, were not able to do so.
A monopoly of this nature hand-cuffs everyone for the sake of one. It turns an infinitely available good into a scarce item. In other words, this monopoly robbed form customers and from society (not to mention from the competitors).
Our Constitution aims to give as many people as possible as many opportunities as possible. Monopolies are in conflict with these goals, though arguably there might be some cases where a particularly limited exclusivity might turn out to promote the progress (rather than stifle it) and hence be in agreement with the Constitution and its goals.
Amazon's one-click patent robs from society: from customers and from competitors. This is what essentially all software patents granted in the US have done (to the extent they are known and have been enforced -- and Amazon has certainly tried to enforce their unconstitutional patent).
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Re: Good for Amazon.
Ignoring for a second the political rights many Chinese do not have yet we do (and perhaps you don't think that is important), perhaps we can learn a little from the free market economic approach you mentioned and stop creating so many software patent monopolies stifling our industries and distorting our markets to bring less to consumers for no good reason except to prop up some monopolists while competitors suffer having to deal with inefficient and sometimes insurmountable handicaps.
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Great idea
This will spur lots of innovation in walking NOT with your feet!!!
...........
Come to think of it....
The problem is that with such an inefficient allocation of time and resources, many more interesting and useful innovations will not come to pass.
The general welfare will suffer, overall progress will not be promoted, and liberties will certainly have been curtailed.
Never mind. [Wait, what if we give them only 1 year of this walking-with-feet monopoly?]
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Re: Great idea
Then they can call any of us that walk with our feet
dirty rotten THIEVES
for STEALING their intellectual property.
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