Analysis Amazon.com has adopted an unusual and potentially self-destructive legal tactic in its defense of its 1-Click patent family.
A defeat for Amazon.com would lift a cloud of uncertainty from over tens of thousands of e-commerce operations, who fear the Wrath of Bezos might be turned against them, as it once was against Amazon competitor Barnes and Noble.
The online store filed the e-commerce patent in 1997 and has used it aggressively against competitors, as well as licensing the IP to other online vendors, including Apple. Although experts say there's no original invention to protect, and prior art abounds, formal re-examination of the patent has fallen to a lone citizen. Movie technician Peter Calveley, who performed in, and designed the fight sequences for Lord of the Rings, is taking on 40 of Amazon.com's finest legal brains in attempting to get the patent overturned.
Don't underestimate the capacity of expensive US corporate lawyers to self-destruct, however.
On his blog, Calveley tells us that Amazon's attorney battalion has now filed around 58lb of paperwork in its defence. And here their problems begin.
Of the patents Amazon cites in its defense, one forms the basis of an intellectual property claim against Amazon.com. It belongs to Cordance Corporation, a small digital ID provider based in Issaquah, Washington. Cordance obtained the patent in 2004.
But it gets worse. To give their defence a cast-iron foundation, Amazon.com's lawyers have submitted 32 articles from Wikipedia, the online site that "anyone can edit".
The problem here is that last August the US Patent and Trademarks Office removed Wikipedia from its list of acceptable resource sources, as this Law.com article notes.
It all makes one wonder how these expensive lawyers can justify their fees. They cite patents Amazon doesn't have, and which it allegedly infringes, and a reference source the Patent Office doesn't trust.
A bomb under 1-Click
Calveley is conducting his defense single handedly, and making the process transparent as possible. Alexis Grandemange (who isn't, as stated earlier Calveley's lawyer) has posted a wealth of detail posted here.
The main weakness of 1-Click, Peter tells us, is Claim 11:
A method for ordering an item using a client system, the method comprising: displaying information identifying the item and displaying an indication of a single action that is to be performed to order the identified item; and in response to only the indicated single action being performed, sending to a server system a request to order the identified item whereby the item is ordered independently of a shopping cart model and the order is fulfilled to complete a purchase of the item.
In other words, the idea of seeing something, clicking on it, and automatically purchasing it, belongs to Amazon.com.
However, electronic payment systems such as DigiCash offered similar procedures. Calveley also claims that with DigiCash the user could selectively disable the confirmation step, effectively reducing it to 1) click 2) pay and 3) receive goods.
In a deposition in 1999, Amazon.com CEO Jeff Bezos claimed 1-Click took 3,500 man hours and six months to develop.
(Perhaps Amazon is getting its developers from the same source as it gets its lawyers).
In contrast to the 40-strong legal team arrayed against the challenger, Calveley raised the $2,500 re-examination fee from over a hundred small contributions made through PayPal.
Finally, here's another curious factoid about the saga.
Millionaire tech publisher Tim O'Reilly once vowed to torpedo Amazon.com's 1-Click patent. Against a backdrop of widespread outrage over Amazon's aggressive use of the patent, O'Reilly created a contest to find prior art to undermine the IP claim, and thus invalidate the patent. However, O'Reilly quietly dropped the campaign; saying he would never disclose it because he trusted Amazon.com CEO Bezos not to use it.
Following that cockle-warming tribute to his integrity, Bezos became a regular star turn at O'Reilly's web evangelism conferences. These days, O'Reilly's VC fund AlphaTech Ventures is supported by Bezos, and represented by the same firm of attorneys, Fenwick & West, which is defending Amazon.com against Peter Calveley.
Never accuse these dot.com moguls of permitting ethics to stand in the way of getting rich. ®