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Amazon 1-Click to rule 'em all? Not if Kiwi has his way

The prior art of shopping

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The campaigner behind attempts to invalidate Amazon.com's controversial '1-Click' payment patent has gained access to Amazon's filings at the US Patent Office and still believes he has a case.

New Zealander Peter Calveley is pursuing a reexamination of the 1-Click patent granted to Amazon. The US Patent and Trade marks Office (USPTO) last year agreed to conduct a reexamination and the process is ongoing.

Calveley has no business interest in the revocation of the patent, he is just an online shopper who believes that Amazon should not have been awarded the patent.

"According to the Code of Federal Regulations Amazon.com are supposed to give me a copy of everything they file-but they have made a habit of not doing so," said Calveley on his blog. "I had to call the USPTO and persuade them to remind Amazon of the rules so finally Amazon mailed me a copy of the documents."

Among the material were documents underlining the commercial effectiveness of the one-click shopping method. "Amazon have also filed a number of documents attesting to the commercial effectiveness and advantages of 'One click shopping'," wrote Calveley. "Perhaps they are intending to make some of the old arguments along the lines of: 'Nobody thought it would be successful – but it was – so it must be non-obvious!' and 'Look how commercially successful it is – it must be non-obvious!' etc."

"I thought they might try some of these tactics, so in my request for re-examination, I have already pointed out that there were a lot of other reasons Amazon had commercial success – its customisation features (for which Pinpoint Incorporated unsuccessfully sued Amazon for patent infringement), the number of books in stock, the general growth of the Internet and e-commerce etc."

Calveley also discovered that Amazon had included in its submissions definitions backing its arguments that were not only gathered years after the relevant period, but from an unreliable source, collaborative encyclopaedia Wikipedia.

"Other [documents] include a definition of 'client-server' taken from Wikipedia in 2006, and a definition of 'shopping cart' taken from Wikipedia in 2004," he wrote. "One would hope that these would not be taken as representative of how things were thought of when the patent was filed 10 years ago."

"Even leaving aside general questions about the reliability of information on Wikipedia, and the fact that the references don't date from the time period they would presumably be applied to, one hopes that the examiner will take time to think about the deeper implications of giving any weight at all to evidence on a website ANYONE CAN EDIT," he wrote.

Calveley's argument is that the 1-Click patent is not valid because other companies had got there first. "The DigiCash system (which had a "one-click purchasing" feature) not only achieved commercial success, but also was noted for its convenience and the fact that it enabled 'impulse' purchases by consumers," said Calveley. "Furthermore, it prompted a similar system to appear soon afterwards, the 'Cybercoin' system promoted by Cybercash."

Amazon's patent filing dates from 1997, and Calveley says he has evidence from the press that the DigiCash and other systems were up and running before that. If 'prior art' – technology or inventions performing the function of a patent before the registration of that patent – is found then a patent becomes invalid.

Calveley is not acting for any corporation and had to raise the cost of a patent re-examination himself. There is a $2,520 fee which he raised from donations from people who found out about his campaign online.

Last May, the USPTO decided to grant the re-examination, and that process is ongoing. He has previously told OUT-LAW that his actions are for his own interest. "I wasn't frothing at the mouth to destroy them," he said. "I was mildly peeved. I have no ideological axe to grind; I just thought, 'this is interesting; I can have some fun here. They deserve to be smacked down'."

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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