Can we all agree that the rule of thumb for reading about patents on the Internet should be: if it sounds ridiculous, it is probably not true? Indeed, reading about patents in the popular press, or in most blogs, is practically useless. They get the truth so wrong, but still speak with such conviction that they can be convincing. That should be self evident, but sadly it is not. Maybe we shouldn’t rely on patent information from those who are not patent experts. Especially, if they don’t particularly like patents and have an ax to grind.
Recently, an article about an Amazon patent came to my attention. The article proclaims that Amazon applied for and received a patent on the process for taking a picture against a white background. The article even included a link to verifying analysis from photographers who it seems would know, right? But what exactly do they know? Does a photograph understand patent law, or do they understand photography? Is understanding photography even enough to allow them to opine on photography patents?
Go ahead and answer. Say this out loud and see if it sounds right: “I should take patent advice from a photographer.” Might it sound better if you said: “I should take patent advice from a patent expert”? Yet, the media will listen to whoever offers an anti-patent viewpoint, even those who it seems don’t understand patents, and can’t be troubled to read more than the title of a patent, or perhaps the Abstract.
As an amateur photographer, who owns a professional grade camera and has at least some basic training, I can prove to even the most skeptical that Amazon has not patented a process of taking a picture against a white background.
The truth is that patent claims define the scope of the exclusive right granted in a patent. Everything else in the patent is there simply to help the reader, that hypothetical person of skill in the art, understand what the patent claims mean and cover. So while the title of this patent is simply “Studio arrangement,” Amazon didn’t receive a patent on all varieties of studio arrangements. And neither did they receive a patent on taking photographs with a white background, as the article contends.
Armed with the knowledge that the only part of the patent that defines the exclusive rights granted is the claims, let’s look at the claims. Let’s start with claim 1, which recites:
1. A studio arrangement, comprising: a background comprising a white cyclorama; a front light source positioned in a longitudinal axis intersecting the background, the longitudinal axis further being substantially perpendicular to a surface of the white cyclorama; an image capture position located between the background and the front light source in the longitudinal axis, the image capture position comprising at least one image capture device equipped with an eighty-five millimeter lens, the at least one image capture device further configured with an ISO setting of about three hundred twenty and an f-stop value of about 5.6; an elevated platform positioned between the image capture position and the background in the longitudinal axis, the front light source being directed toward a subject on the elevated platform; a first rear light source aimed at the background and positioned between the elevated platform and the background in the longitudinal axis, the first rear light source positioned below a top surface of the elevated platform and oriented at an upward angle relative to a floor level; a second rear light source aimed at the background and positioned between the elevated platform and the background in the longitudinal axis, the second rear light source positioned above the top surface of the elevated platform and oriented at a downward angle relative to the floor level; a third rear light source aimed at the background and positioned in a lateral axis intersecting the elevated platform and being substantially perpendicular to the longitudinal axis, the third rear light source further positioned adjacent to a side of the elevated platform; and a fourth rear light source aimed at the background and positioned in the lateral axis adjacent to an opposing side of the elevated platform relative to the third rear light source; wherein a top surface of the elevated platform reflects light emanating from the background such that the elevated platform appears white and a rear edge of the elevated platform is substantially imperceptible to the image capture device; and 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.
This claim is so narrow as to be practically useless in any real commercial sense. This is objectively true because in order to infringe you must engage in activity that incorporates each and every limitation recited. For example, focus on this phrase of the claim: “with an ISO setting of about three hundred twenty and an f-stop value of about 5.6…” Now this is but 1 phrase of a very long claim, but within the phrase we have a very specific ISO setting (which relates to speed of the film) of “about 320,” and we have a very specific f-stop (the ratio of the lens’s focal length to the diameter of the lens opening) of “about 5.6.” If you change the ISO or you change the f-stop, you would not be infringing. So if you want to do everything else recited above, just move your f-stop to 4.0 or 4.5, or use an ISO setting of 400 or 800, or 100 or 200. Indeed, it would be very easy to get around this patent claim even without talking about the requirement of an 85 millimeter lens and the light source ratios. In short, anyone who knows anything about patents knows that this claim does not grant Amazon the right to exclude others from taking a picture against a white background.
Another independent claim in this patent is claim 2, which recites:
2. A studio arrangement, comprising: a background comprising a cyclorama; a front light source positioned in a longitudinal axis intersecting the background, the longitudinal axis further being substantially perpendicular to a surface of the background; an image capture position located between the background and the front light source in the longitudinal axis; an elevated platform positioned at a first distance from the elevated platform and between the image capture position and the background along the longitudinal axis, the front light source being directed toward the elevated platform; a first at least one rear light source positioned between the elevated platform and the background, the at least one rear light source directed towards the background; a second at least one rear light source positioned in a lateral axis intersecting the elevated platform and being substantially perpendicular to the longitudinal axis; at least one light shield positioned between the second at least one rear light source and the elevated platform, the at least one light shield configured to shield the elevated platform from light emitted directly from the second at least one rear light source from lighting an upper surface of the elevated platform; and wherein 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.
Again, as we look at this claim, we readily see numerous limitations that prevent the scope of the exclusive right from being nearly as broad as complained about by the media and anti-patent critics. For example, notice in the first phrase of the body of the claim how it requires a “cyclorama.” The specification defines “cyclorama” as “a curve, concave background.” So if you don’t want to infringe, just don’t take your pictures against a curved, or concave background. You can copy everything else and as long as you don’t use a curved or concave background, you won’t be infringing. So clearly, this patent doesn’t give Amazon the right to prevent others from taking pictures against a white background. That is obvious to anyone objectively looking at the claim even before you get to such truly narrowing limitations as a platform that emits light so that the platform appears substantially similar in color as does the background.
So rest assured, America, you can take pictures against a white background without infringing this patent, despite what you may have read on the Internet.
Tags: Amazon, media, patent, patents, photography, popular press, press
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