Amazon 1-Click Patent Approved by Canadian Patent Office?

Source: CIPO Website. Amazon Patent Application 2246933 

Here we go. Both the Financial Post and Barry Sookman suggest that the Canadian Intellectual Property Office's review of the Amazon patent is complete and all but granted. I have argued before that there will now be a flood of business method patents in Canada, as we've seen in the U.S. over the last two decades. I can only hope, for the sake of promoting innovation and preventing excessive patent litigation, I'm wrong.

National Post, Norton Rose and Others Weigh in on Amazon Decision

Just a quick follow up to this morning's post, with links to other reviews of the decision.

The National Post notes the two-sided nature of the decision, but suggests the case is far from over for Amazon. Norton Rose (a law firm) provide a summary of the case to date and Prof. Emir Aly Crown in the Law Department at the University of Windsor has written an article detailing the case and the possible interpretations of the decision. He concludes that the lack of clarity in the ruling means it should go to the Supreme Court:

"In my view, the Court was at times unfair to the Court below56 and unnecessarily introduced uncertainties into an area of law that could certainly benefit from much greater clarity. Selfish reasons aside, an appeal to the Supreme Court of Canada would most certainly be welcome."

In/Decision - Federal Court of Appeal "Decides" on Amazon's 1-Click Business Method Patent

On Thursday of last week, the Federal Court of Appeal's decision regarding Amazon.com's 1-Click business method patent made its way online (see IPPractice.ca for more details). I'm still in the process of parsing the pdf of the decision, but it appears the FCA has ordered the patent to be re-examined by the Commissioner of Patents, in an expedited manner and in one that is consistent with the findings of the recent decision. Both parties have two months to appeal to the Supreme Court of Canada.

The Commissioner originally rejected the patent because it failed to show an "invention" as it is defined in the Canadian Patent Act. In other words, it wasn't patentable subject matter. Amazon appealed this at the Federal Court level and the judge there (Justice Phelan) agreed that the Commissioner erred in her reading. Phelan said the Commissioner mistakenly claimed business methods were categorically not allowed in Canada, that she relied too heavily on the "physicality" of inventions and that she didn't follow proper principles of claim construction (the method by which inventions are described in patent applications). Phelan suggested some tests/requirements that should be applied to business method patents to clarify the process and all but approved Amazon's application.

The Federal Court of Appeal set aside Justice Phelan's judgement, but in doing so, it still agreed with many of Phelan's arguments. For example, the court agreed that there is nothing in the patent act that categorically excludes business method patents. It also agreed that an invention must make some kind of discernable physical change or have some kind of practical application in order to obtain a patent.

However, the decision also notes that Justice Phelan's prescription for determining the patentability of business methods was inappropriate and for these reasons, it should be sent back to the Commissioner for re-examination.

On first pass, I find the decision schizophrenic. It reads as if it's paving the way to accept business method patents (and the one-click in particular) but it continually backtracks with statements that call into question the validity of Amazon's claims. For example, just after saying that there is no reason to categorically exclude business method patents, the decision carries on: "However, it does not necessarily follow that the Commissioner was wrong in the result. In my view, it remains an open question whether the subject matter defined by the patent claims is an "invention" within the statutory definition" (Line 48). By not making a judgement on the patentability of 1-Click, the decision simply sends the case back to the Commissioner with little more or no new information than the patent office had previously.

Those worried about the implications of business method patents in Canada (including yours truly) can seek solace in the fact that at least the Court of Appeal didn't outright grant Amazon its patent. But the wording of the decision suggests Amazon.com is one step closer to owning 1-Click here.

Ultimately, the FCA's ruling is a directionless one that leaves the question of business method patents unanswered in Canada.

photo from flickr user Davichi

Radiohead and the Resistant Concept Album: A Review

"Radiohead may present a scathing critique of commodity culture but they are reflexive enough to know the role they play in their own commodification."

That's a snippet from a recent review I had the chance to write for Marianne Tatom Letts' new book, Radiohead and the Resistant Concept Album (How to Disappear Completely). The review was for Rain Taxi - a print/online publication that focuses on essay-length reviews of literary fiction, non-fiction and poetry. Since the Letts' book pays particular attention to Kid A and Amnesiac, it took me back to some of the work I did for my MA thesis.

For those not versed in reading music, the book is a bit dense with close readings of scores and musical elements. But even still, it's a book popular music scholars and Radiohead fans alike should take note of.

Read the full review in Rain Taxi's Summer 2011 online editon

The Accidental Criminal

"Given the consequences associated with illegal downloading, this paper argues that an innovative approach is needed to moderate the activity. Drawing on psychological literature, this paper argues that public policy informed by attribution theory (Heider, 1958; Kelley, 1979) might help to curb illegal downloading within some circles; this might be achieved by increasing opportunities for engagement between the owners and users of intellectual property. Rather than using policy and legislation to restrain access to intellectual property, attribution theory suggests that policy approaches that close proximal distances between creators and audiences, and fosters psychological contracts, might be effective in curbing these violations."

There's a great piece in the latest issue of First Monday by Kalika Navin Doloswala and Ann Dadich on downloading and on the wrong-headed policies that have failed to curb the practice or to re-habilitate the music industry in any significant way. Interestingly, it's one of the first papers on downloading that I've read that ventures beyond gift-theory ideas to explain file-sharing. Instead, the authors bring in attribution theory (i.e. pyschological theory that looks at how people rationalize and make sense of certain behaviours or events, particularly those that tend to fall outside of societal norms and standards). They argue that current policies aimed at punishing downloaders have little effect since they fail to take into account the reasons people engage in the behaviour in the first place.

Although some of the concluding policy recommendations are a little contradictory (i.e. although showing users how downloading hurts musicians and labels should provoke a change in attitude or behaviour, we have years of failed music industry marketing campaigns that suggest otherwise), it seems like this could be an interesting, potentially fruitful, direction for future policy development. I agree that a greater engagement between artists and users is a positive benefit for re-evaluating our relationship with digital commodities; I've noted elsewhere that this promise is at the heart of what makes the digital music commodity so exciting. But the paper leaves the elephant in the room unaddressed: if such a vast majority of users are participating in, or have taken part in, "illegal" downloading, maybe the answer is not with one-off band-aid policy recommendations. Maybe a bigger re-thinking of IP policies for digital commodities is required first.

Still, the authors seem genuinely invested in stopping what they call the "creeping criminalisation of society" and for that alone, the paper is worth a read.

Check out the full paper by Kalika Navin Doloswala and Ann Dadich here: The Accidental Criminal: Using Policy to Curb Illegal Downloading

Easy Pickings

I was wrapped up in a conference 2 weeks ago when the Polaris Prize Long List was announced. I thought I'd paste it here for anyone following the process.

The second round of ballots, those that will determine the 10 albums of the Short List, were due this past Friday. Unlike previous years, it was easy pickings for me, given that the artists on my first ballot all squeaked into the long list.

Every year there's controversy in the press (and among jurors) about who's on the long list and who isn't and every year there are oddities to the list that are relics of a strange but interesting selection process. For every album as good as Sarah Harmer's Oh Little Fire that I'm sad to see off the list there are just as many gems like Tim Hecker's Ravedeath, 1972 that continue to surprise me.

What's your take? You have about 8 days to decide before Polaris Headquarters releases the Short List.

Arcade Fire, The Suburbs

Austra, Feel It Break

Black Mountain, Wilderness Heart

Braids, Native Speaker

Buck 65, 20 Odd Years

Louise Burns, Mellow Drama

D-Sisive, Jonestown 2: Jimmy Go Bye Bye

The Dears, Degeneration Street

Destroyer, Kaputt

Diamond Rings, Special Affections

Dirty Beaches, Badlands

Luke Doucet and The White Falcon, Steel City Trawler

Eternia & MoSS, At Last

Galaxie, Tigre Et Diesel

Jenn Grant, Honeymoon Punch

Tim Hecker, Ravedeath, 1972

Hey Rosetta! Seeds

Hooded Fang, Album

Imaginary Cities, Temporary Resident

Land Of Talk, Cloak and Cipher

Little Scream, The Golden Record

The Luyas, Too Beautiful to Work

Malajube, La Caverne

Miracle Fortress, Was I The Wave?

One Hundred Dollars, Songs Of Man

Doug Paisley, Constant Companion

PS I Love You, Meet Me At The Muster Station

Daniel Romano, Sleep Beneath the Willow

The Rural Alberta Advantage, Departing

Ron Sexsmith, Long Player Late Bloomer

Shotgun Jimmie, Transistor Sister

Sloan, The Double Cross

Frederick Squire, March 12

Stars, The Five Ghosts

Colin Stetson, New History Warfare Vol. 2: Judges

Timber Timbre, Creep On Creepin' On

The Weeknd, House Of Balloons

Women, Public Strain

Neil Young, Le Noise

Young Galaxy, Shapeshifting

The 2011 Long List | Polaris Music Prize

Can you really patent a mouse click?

Can you really patent a mouse click?

Here's more on the Amazon 1-click case, this time in succinct text form. It's from an op-ed in the Gazette.

Most patents cover specific gadgets, like a new broom or a better mousetrap. Patent holders get a 20-year right to prevent others from making a similar invention and profiting from it. Business-method patents are a special class of patents that grant ownership over technologies and the ways those technologies are put to use.

Business-method patents are troubling because they grant a monopoly not just over a particular technology but ultimately over ways of doing - over ways of interacting with technology. They allow patent holders to stake a claim in what is, in essence, human behaviour. (Apple, for example, has patents covering certain gestures for interacting with their touch-sensitive gizmos).

So next time you click once to buy, ask yourself whether the process is so unique and novel that Amazon should have a 20-year monopoly to it. The basic properties of the Internet (e.g. many-to-many communication, hyperlinks, etc.) opened up new ways for users and companies to interact. These qualities are just as responsible for new ways of doing business as any specific business method.

Read the rest at the Gazette

Amazon One-Click Gets Another Day In Court

As mentioned in a previous post, Amazon's one-click patent case goes before the Federal Court of Appeal today, June 21st, in Toronto.

If you're not familiar with one-click, that's the button you clicked to order Steven Tyler’s new “memoir” in a mad rush of last minute shopping for Father’s Day. Amazon has a patent on the system in the U.S. and they have been trying to get it acknowledged here in Canada for the last 13 years. The case could end up at the Supreme Court, and it might usher in a new era for Canadian patent law.

As the new Harper government gets back to work on Canada’s long-awaited Digital Economy Strategy they would be wise to consider whether business method patents foster innovation, or whether they act as quiet quests for control over information and cultural practices.

In honour of the trial, and in an attempt to raise a bit of awareness about the Amazon case and business method patents more generally, I spoke with podcaster/agitator/critical tech journalist Jesse Brown, host of TVO's excellent and always insightful, Search Engine Podcast

You can check out the episode here or download the mp3 file directly here.

I want to thank Jesse for taking an interest in the subject and for putting the episode together. I should also thank Dr. Michael Geist, my supervisor on this project, who has been an great sounding board for a legal-neophyte like me. Finally, I have to thank the FQRSC, who made this project possible in the first place.