Can my website infringe on a patent? realZOOM patent

Can my website infringe on a patent? realZOOM patent

A patent is a set of exclusive rights granted to the inventor of an invention that meets certain requirements.  The obtain a patent in the United States an inventor must file a patent application with the United States Patent and Trademark Office.  A patent examiner at the United States Patent and Trademark Office will review the patent application and if the patent examiner determines that the invention is new, useful and not obvious, the inventor will be granted a patent on the invention.  A patent gives its owner the exclusive right to make, use, sell and import the invention in the United States. If someone other than the owner of the owner of the patent attempts to exercise one of these exclusive rights that can be considered patent infringement.  A patent owner can combat patent infringement by filing a lawsuit in United States federal court.

Computers and the software instructions that run them, present a unique challenge to patent law.  The way patent law is written, the United States Patent and Trademark Office is obligated to grant an inventor a patent unless it can be demonstrated that the invention unless certain conditions occur.  To keep the United States Patent and Trademark Office from subjectively denying patents applications, there are several objective tests to support a denial of a patent application.  These tests must be supported by evidence.  If the patent examiner cannot discover evidence to support  a decision to deny a patent during the patent application process, the United States Patent and Trademark Office is obligated to grant the patent.

Obviousness is one of the tests that an invention must pass for a patent to be granted.  Patent obviousness is the idea that if an invention is obvious to either experts or the general public, it cannot be patented.  This may seem like a simple test, but to find evidence to support a denial of a patent can be challenging when the technology surrounding an invention is in its early stages.  A patent examiner cannot merely conclude that an invention is obvious, the patent examiner must find written evidence which supports a determination of obviousness.  Many inventions that may seem obvious to the general public are granted because a patent examiner could not find enough evidence to demonstrate that an invention is obvious.

This applies to patent related to software and websites because it is a relatively new industry.  There is a great wealth of information about how to program software and the functions that software can perform, but that information does not always provide enough evidence to support a determination of obviousness.

A case which demonstrates the how an invention that may seem obvious can still be granted patent protection is realZOOM et al. v. Williams-Sonoma et al., 5:19-cv-00064 (E.D.TX 2019).  The plaintiff in this case owns a patent on a website function, namely, enlarging an image which is displayed to a user.  If you have ever shopped online it is likely you have used a website which features this function.  The patent claims clicking on a small image, which creates a second, larger cropped image, which is manipulated by moving the mouse cursor around the original small image.  Whether or not you know how to write the computer software to perform is function is irrelevant, because the invention is the function of moving around a zoomed in image based on the mouse cursor position, not the underlying computer program. To many people this invention would seem obvious.

The defendant in this case is an online retailer whose website has this image zooming feature.  The plaintiff filed suit for patent infringement against the defendant in 2019.  The plaintiff has also filed 7 other, almost identical lawsuits against other online retailers.  At least 4 of those other suits have been settled before going to trial.

This case comes down to whether the defendant can show either A) its website image zoom feature does not infringe on the plaintiff’s patent or B) the plaintiff’s patent is invalid for some reason.  The costs associated with litigating a patent infringement lawsuit are substantial, depending on what amount the plaintiff is willing to settle the case it might be cheaper for the defendant to settle rather than fight.

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