Few patents have inspired as much confusion, horror or even revulsion as the infamous Amazon “1-click” patent. This patent covers the ability to send a purchaser identifier and a request to order an item to a server, in response to only a single action being performed by a client. I often hear about how ridiculous it is to allow a patent on buying something with one click and how offensive it is that Amazon actually enforced the patent. While there are plenty of ridiculous patents, and plenty of companies taking advantage of the system in truly lamentable ways, there are two big reasons why the 1-click patent is actually proof of our patent system doing the right thing.
Do you remember the Internet in the fall of 1997? We’d barely had search engines for two years, Google hadn’t yet incorporated, and we were just starting to learn about MP3s. This was an era before dancing hamsters and rickrolling, and only a minority of companies had any web presence to speak of. If you approach the idea of 1-click from the perspective of someone trying to shop on-line via dial-up back in ’97, it starts to sound pretty revolutionary. Most sites required many steps to complete a transaction, intentionally modeled after brick and mortar stores with shopping cart interfaces mimicking real-world shopping experiences. So Amazon’s approach passes a litmus test of patentable material – that the patented idea was truly new.
Secondly, Amazon used their patent in a very innovation-friendly manner. Throughout history, patents have played a vital role in helping a new innovator gain a toehold against established ways of doing business. The Amazon patent issued in September 1999; e-commerce was just starting to gain traction, competition amongst e-retailers was intense, and Christmas was coming. In October 1999, Amazon sued Barnes & Noble and overcame B&N’s arguments to convince a court that there was a real question about infringement that B&N had to remove or modify their “Express Lane” feature. Regardless of how the case would go, Amazon was able to keep B&N from capturing all those holiday shoppers who were just starting to figure out they could do their shopping on-line. This is a case where a patent gave a forward thinking, innovative “David” a fighting chance against a “Goliath” – a Goliath doing everything it could to imitate, not innovate.
There’s no denying that there’s a lot to fix about the patent system – the Patent Office needs funding to hire and retain better-trained Examiners and to eliminate the current backlog; the patent term for software patents could stand to be shortened significantly. But just as important as the nay-saying is to focus on the times when the system does exactly what it’s supposed to do – promote progress.
After years of waiting for patent reform, and agonizing over whether it would be good or bad or useless, the patent world may soon find out that Congress has actually passed a reform act. I hear the Senate is voting as we speak and that very soon we’ll have some interesting changes to discuss! Two of the more exciting things from my perspective would be:
– that the Patent Office would have the authority to set fees – and define the filing discounts smaller companies get!
– that the Patent Office can keep the fees it collects, instead of being required to give the majority of the fees over to Congress.
I’m going to go back to hitting “refresh” on the web sites and will post an update when there’s news.