I do not think that patent means what you think it means

Last week there was a bit of Internet angst over a recently issued patent. In particular, the folks over at Law & Disorder of Ars Technica objected to U.S. Patent No. 8,676,045, issued to Amazon for a studio arrangement for taking photographs against a white background, like all those product photographs you see when you shop with an online retailer. 

Ars Technica described the ‘045 Patent as something that “looks and sounds similar to basically every other photo studio in existence.” Ars Technica quoted from the abstract of the patent to describe the technology involved, explaining that it includes “[a] front light source aimed at a background, an image capture position located between the background and the front light source, an elevated platform positioned between the image capture position and the background, and at least one rear light source positioned between the elevated platform and the background.” Ars Technica noted with clear irony — while still quoting the abstract — that the patent “even describes the use of a table . . . (Look out yearbook pictures everywhere.)”

USPTO 8,676,045

USPTO 8,676,045

Just as a caricature of an old man yells at kids to get of his lawn, a caricature of a patent attorney complains that the Internet press doesn’t understand the patent system. With the risk of becoming the caricature firmly in mind, now is the time to note an axiom of patent law: the scope of a patent is defined by the claims. Therefore, the claims of a patent are not merely a better place than the abstract for determining what the patent covers; the claims of a patent are the only place to look to determine what the patent covers, and the abstract is never the place to look to determine what a patent covers.

As for the claims of patent in question, this blog post cannot endorse their patentability or commercial value, but it can conclude that the claims are, as is typically the case, more restrictive than the abstract. Claim 1 is 370 words long and requires a front light source, four different rear light sources, a particular ISO setting, an eighty-five millimeter lens, relative orientations of those light sources relative to the camera and the item to be photographed, a platform (the dread table), and ultimately that “the first rear light source, the second rear light source, the third rear light source, and the fourth rear light source comprise a combined intensity greater than the front light source according to about a 10:3 ratio.” That claim may very well be still be overly broad, but it likely does not cover “every other photo studio in existence.”

The folks at Ars Technica are not that different from the rest of the Internet press, or even the old fashioned dead tree press that reports on technology. A non-patent attorney looking at a patent is apt to skip the claims, which are hard to read and understand, and focus instead on the drawings and the abstract which almost always describe more than the patent actually covers. This error does no one any favors, but the press involved may be less culpable than the patent attorneys who do not explain the important difference between a patent abstract and a patent claim.

Simply put, there is plenty of room to improve the patent system that we have, so we ought not waste time and energy trying to improve a patent system that we don’t have. Unfortunately, many technologists, reporters, and interested readers of news have a mistaken impression as to what patent system we have.