Patent Sense

It’s a while since I mentioned any of the informative posts by Carolyn E. Wright on her Photo Attorney blog, certainly one of the best sources for photographers on US Copyright law and other US law related to photography. Although we have a different legal system here in the UK, that doesn’t stop us being affected by US Laws, which attempt to protect the interests of US citizens world-wide.

There are also some advantages for photographers outside the USA in making use of the US Copyright Office, as US law enables anyone who has registered the copyright of an image with them to sue for punitive damages, unlike in the UK where awards are limited to amounts related to the actual losses.

US Trade Marks and Patents are also something that we may fall foul of, and patents seem sometimes to be granted for fairly ridiculous claims that include no element of innovation – as in the case of Amazon’s U.S. Patent No. 8,676,045 on taking a photograph of an object in front of a white background. Charles Duan in his Arstechnica post makes clear why such seemingly ridiculous claims – that seem to lack any real inventive concept – make it to patents, but perhaps the case reported by Wright in Photographer’s Patents for Event Photos Declared Invalid at least shows that the courts do sometimes realise that the patent system can be an ass.

While some photographers paid up to PhotoCrazy over their patents including the 2006 patent for a ‘Process for Providing Event Photographs for Inspection, Solution and Distribution via a Computer Network‘, Capstone Photography decided to go to court rather than pay when charged with infringing this and two other PhotoCrazy patents.  You can find links to the details in Wright’s article, including to the web site set up by Capstone to explain why they were refusing to pay and solicit donations to fight the case.

Mike Skelps of Capstone says it cost around $100,000 to fight the case – the reason why around a dozen other companies threatened with legal action had settled and paid up. Capstone is a relatively small business, but took the decision to fight because they  “knew it was the right thing to do” not just for them but “on behalf of the many hard-working and talented photographers who suffer financially from these bad patents.”

The patents appeared to cover the process of displaying pictures taken at sporting events on a web site so that those taking part could identify themselves and thus order pictures. Perhaps I’m missing something, but it is hard to see anything that isn’t entirely obvious in the process – any element of invention that deserves patent protection. But of course the law isn’t about the the obvious or common sense.

Two days ago on October 28th 2014, Capstone won their case when a Federal Judge “declared three patents are ineligible for patent protection under 35 USC Section 101.” The court’s decision is a lengthy and complex document full of references to previous cases but eventually comes to the conclusion that all three of the patents concern “patent-ineligible abstract ideas, and lack an inventive concept that would make them patent-eligible applications of those ideas.”

There are other areas of photography that have been affected by patent problems that have similarly seemed to many to defy common sense and ideas of prior art. As one of the comments on a thread on the Photocrazy patents on Digital Grin by David Watts points out:

“iPIX theoretically holds several patents for 360º x 180º bubble panorama technology. They began to sue those offering up software to produce or view anything similar. One victim was Helmut Dersch, the programmer who brought us PTViewer and PTTools. Apple skirted around the issue by producing “cubic” panels and a new QuickTime viewer. The iPIX cases have died down, but it cost a lot of companies time and money. Drove some out of business. So there is existing precedent with something similar.”

The only time I’ve ever been personally faced with anything in any way similar to the demand from PhotoCrazy (not over a photography related issue) although I felt we had a pretty clear case, we didn’t have the $100,000 to fight it and couldn’t afford to stand up to the legal bullying.

Capstone are asking for support, for people to share their web site and the decision as I’m doing here. They are also asking for people to consider donating to their legal costs. Certainly any phot0graphers engaged in sporting event photography, particularly in the US,  owe them something.

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