New Amazon patent US 8,676,045 covering a studio set-up to provide a seamless white background

There has been an outcry over another new Amazon patent covering (ostensibly) a studio set-up providing a seamless white background. How could they be granted a patent on high-key studio photography, people ask? Why was the patent office dumb enough to grant the patent when there must be so much prior art out there? It's not novel! Understandably, photographers are up in arms about this.

I will try and provide a very brief analysis of the situation from the perspective of someone who is both a photographer and a qualified European and UK patent attorney, as things are usually not what they seem in these cases. Whatever you think of patent law, it can be very complicated, so unfortunately the situation cannot often be reduced to a sensible sound-bite.

As with all Amazon scare patents, you have to look at what the claims actually cover. See here.

The simple version is that to infringe a patent, you need to provide all the elements of the claim.

Claim 1 of the patent in question (US 8,676,045, see above link) requires the use of an 85mm lens, an ISO of 'about' 320, an aperture of 'about f5.6', and a lighting ratio of 'about' 10:3 (amongst many other things).

So this claim probably does pass the novelty test, because the Examiner won't have been able to find any prior art with that specific combination of variables. Of course he would have found examples of high-key studio set-ups, but that's not what's being claimed (per se).

To be patentable, the claim must also be non-obvious. Under US patent law, this is a fairly subjective test, and applied in ways that often seem to be out of step with most of the rest of the world. With regard to obviousness, the Supreme Court has unfortunately tended to muddy things up rather than clarify them the last few times this topic has come up. From a philosophical point of view, a very specific set of camera settings may not be 'inventive' (the European standard) but they may nevertheless not be 'obvious', though this is my observation rather than how the Examiners look at things. I'm still surprised this got through, but possibly the Examiner was bludgeoned into submission by Amazon throwing money at the case (welcome to the US).

So, Amazon now have this patent. Will lots of people infringe it? Er, no. The simple version is that only people using the specific combination of 85mm lens, ISO 320, f5.6 and a 10:3 light ratio, and all the other elements of the claim will infringe. There's some wiggle room around most of that because of the 'about' language and what is known as the doctrine of equivalents, but I would think (*this is not a formal opinion*) you'd be in the clear using a 100mm or 50mm lens, for example. A zoom lens with a range encompassing 85mm but not set to 85mm for the shoot - probably not, I'd say but I wouldn't dismiss the argument out of hand. Would ISO 400, f6.3 or 10:4 light ratio infringe? Is being (typically) one adjustment away from the specific value 'about' that value? Also a grey area - you'd have to look at the prosecution history and the prior art to get a better view on that.

As a photographer, you have a trade-off between ISO (light sensitivity), aperture (amount of light admitted to the lens) and the intensity of your flashes/lights (we'll assume shutter speed is fixed for the purpose of this discussion). You can obtain the same exposure by increasing ISO and either reducing aperture or reducing the intensity of the lighting, and so on. The depth of field will alter at different apertures, and you may get more image noise at higher ISOs, but otherwise you're fairly free to change the balance of these settings. Avoiding infringement is therefore relatively straightforward.

Also bear in mind that unless you include metadata in the finished JPG on a website (not likely) and have an easily inspectable or well-documented studio set-up, it's going to be very hard to work out who is infringing. In high key (white background) product shots, all you see is a product against a white background, which could have been produced by any means, including photoshopping out the non-white bits of the background as per the acknowledged prior art. Yes, there may be a vague suggestion of a particular focal length or aperture, but I imagine you couldn't determine this to an appropriate level of accuracy to determine infringement.

In view of the above, this is a horrendously limited patent. I haven't read the prosecution history and I don't know what discussions went on within Amazon, but this looks like a desperate attempt to get absolutely anything granted, no matter how limited, for example so they could say the technology was patented in vague terms, and/or to use it as a stick to beat competitors around the head (which is relatively easily done in the US system as you can rack up huge losses even if you win a patent case).

Is this a patent abuse? Well, Amazon (being Amazon) have managed to stoke up another controversy, not making them or the USPTO look too great, again, but - without having checked the prosecution history and the prior art on record - a patent this narrow in scope doesn't seem to be objectively too controversial. How the patent is used, and in particular how anti-competitively, will determine whether there is abuse, but that's more a question of anti-trust law and commercial judgement than a question of whether a patent should have been granted. I suspect that if this was anyone other than Amazon, you'd never have heard about this patent.

(To learn more, you could inspect the prosecution history via the USPTO Public Pair site - I'm afraid I'm too lazy to put up a working link here.)

(NB nothing here constitutes a formal opinion, certainly with regard to the US)