New Zealand Actor Wins Rejection of Amazon 'One-Click' Patent

In a symbolic victory for advocates of patent reform, a part-time motion-capture actor who has appeared - albeit masked by CGI animation - in the Lord of the Rings trilogy of films, has succeeded in striking down Amazon's patent claim of having invented the single-click purchase procedure.

Auckland, New Zealand resident Peter Calveley petitioned the US Patent and Trademark Office back in November 2005 to re-examine the 26 claims made by Amazon in what had been called, "Method and System for Placing a Purchase Order Via a Communications Network." By the following February, by soliciting private donations through his blog, Calveley had raised the nearly $2,500 necessary to fund the full re-examination. In May, his case was under way.

To make his case, Calveley cited an existing 1999 patent for a system for ordering goods or services using an "interactive TV." The differences between the older patented concept and Amazon's included that Amazon used a shopping cart metaphor, and that the button for instigating the purchase sequence moved from pressing "BUY" on the remote control to clicking on Buy with a mouse pointer.

At one time, those differences were thought to be significant enough to distinguish Amazon's claims from prior art. Not any more, as 21 of its claims were struck down, in a re-examination decision reached last week, as unpatentable.

As it turned out, a third patent for prior art played a role in this decision: a system where the purchase is made by voice command. That patent apparently proved that the act of purchasing could be suggested to a mechanical system by other means. But by proving that, the USPTO ruled, a person of ordinary skill would reasonably conclude that any other reasonable signal - for instance, clicking on "Buy" - would substitute. And you can't patent a substitution.

"It would have been obvious to one of ordinary skill in the art," wrote patent examiner Matthew Graham on October 9, "to have substituted the remote control as disclosed in Joseph [the interactive TV] with a voice activation as taught by Fan [saying "Buy" into a microphone] so as to provide users with a variety of ways to interact with the interactive TV and because Fan teaches the equivalent use of both a remote control and voice activation."

"Amazon has the opportunity to respond to the Patent Office's rejection," Calvaley noted on his personal blog on Tuesday, "but third party requests for reexamination, like the one I filed, result in having the subject patent either modified or completely revoked about two-thirds of the time."

While some said Calveley's contesting of Amazon's claims was somehow personally motivated, his blog entries over the past few years reveal an intense personal interest in US law and its underlying system of ethics. For example, when the Supreme Court last May issued its groundbreaking patent overhaul decision in KSR v. Teleflex, he was excited to learn the justices cited the same case law that he cited in his original request.

"When I was writing the request for reexamination," he wrote then, "I thought things might go the way they did in KSR v. Teleflex so I did make some arguments using these cases in the request." He cited the May decision: "If a person of ordinary skill can implement a predictable variation, [U.S. Code section] 103 likely bars its patentability. For the same reason, if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill."

History will record Peter Calveley as a person of ordinary skill in some arts, but of extraordinary character in others.

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