Amazon patents blur human-robot lines

Amazon’s recent success in obtaining two U.S. patents (9,881,276 and 9,881,277) for wristbands, capable of controlling employees’ hands and directing their actions, has raised fundamental legal and even constitutional questions about government authority to authorize and enforce inventions. Thus, potentially redefining the relationship between humans and technology by effectively treating people as robots.

The looming legal challenges will likely include whether the U.S. patent and trademark office went beyond its statutory authority in granting these patents; whether the patents are subject matter eligible; whether they meet the judicially created “moral utility” requirement for patent validity; and whether the patents are unenforceable if they are applied to humans.

Public interest in advancement of science and technology runs deep and is in fact enshrined in the U.S. Constitution. Article I Section 8, Clause 8, also known as the “patent and copyright clause” of the Constitution, authorized congress “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Acting on that mandate, shortly after the birth of our nation, President George Washington signed the first Patent Act of 1790 into law. Armed with the full force and power of the government, an issued patent is a powerful tool in the hands of an individual or organization to enforce its government sanctioned invention rights. That power can have far reaching consequences. As such, patent law and policy often involve a fine balancing act between competing public interests.

In the case of the Amazon patents, the concern is that the patents implicate and can even upset, deeply held norms and expectations about the relationship between technology and humans.

The two issued Amazon patents concern a device and a corresponding method and mechanism for tracking an employee’s hands relative to the position of inventory bins and for directing the employee in the “right direction” upon command. The background section of the patents explain the aim of the inventions as addressing challenges facing inventory management systems in responding to requests for fulfilling orders. The patents point out that under conventional inventory systems, incoming inventory items are stored in inventory bins for quick and efficient retrieval of the item and that in response to an incoming order, the bin containing the ordered item needs to be readily and accurately identifiable and accessible. The patents tout the importance of keeping track of the position of inventory bins relative to the workers to enhance the overall efficiency of the order completion process. The Amazon patents criticize existing processes for keeping track of inventory bin locations uneconomical and inefficient but find proposed improvements in the form of a computer vision apparatus to track location of inventory bins inadequate as cumbersome and costly.

Instead, the Amazon patents propose a system that uses ultrasonic communication to track employee hand movements with the aim of evaluating and enhancing task performance for inventory workers. The wristbands operate by sending ultrasonic pulses at predetermined intervals in order to keep track of the position of the worker’s hands and the inventory bins and the relative positions of the worker’s hands and the bins. This, according to the patents, will help determine if the worker interacted with the correct bin and will allow the system to direct the worker’s hands toward the correct bin by sending a pulse to alert the worker when the worker’s hands are in close proximity to a target bin and to seek to direct the worker’s hand toward the designated bin.

Amazon has tried to downplay concerns about the patents’ potential for redefining the relationship between humans and technology as overblown and instead has sought to portray the patents as an incremental step toward enhancing productivity and efficiency in workplace. According to Amazon, its proposed wristband system is not that different than handheld scanners, which are in widespread use for checking inventory and for fulfilling customer orders. According to the company, the wristbands and their accompanying mechanism are aimed to improve the tracking and locating process by freeing up employee’s hands and eyes from scanners and computer screens.

The question regarding the Amazon patents is whether they will pass muster in face of inevitable legal challenges that are to come. The potential challenges include whether the patents are even subject matter eligible; whether the patents pass the “moral utility” test for validity and whether the patents are enforceable for the purpose of directly controlling and directing humans.

The U.S. Patent and Trademark Office is the government agency charged with issuing patents. However, courts are the ultimate arbitrators in deciding validity and enforceability of issued patents. Questions about whether the PTO has exceeded its authority in issuing patents in new fields are not new. For example, back in 2013, when considering validity of issued gene patents, Supreme Court Justice Elena Kagan commented that “The PTO seems very patent happy.” The Supreme Court subsequently found genes to be not eligible subject matter for patent protection.
Another potential outcome is for courts to find that the Amazon patents are invalid because they lack “moral utility.” Under the patent statute, the three basic requirements of patentability are utility, novelty and non-obviousness of the invention. From the beginning, courts have applied the utility requirement for patent validity to exclude inventions deemed to be “injurious to the well-being, good policy or good morals of society.” Historically, the court created doctrine of “moral utility” was reserved for vices such as gambling, sex objects and illegal drug delivery apparatuses. More recently, the doctrine has been raised in connection with genetic experimentation.

Another potential outcome of expected legal challenges to the Amazon patents would be for courts to find the patents to be valid but not enforceable for all, or at least certain of their potential applications. A determination of unenforceability of a patent would indicate that the patent meets the subject matter eligibility and the utility requirement for validity but is not enforceable for at least certain applications. As an example, the Amazon patents could be found enforceable if they operate on computers and robots but not on humans.
While the final result of these expected challenges can’t be predicted with any degree of certainty, public acceptance of the tradeoff between increased efficiency and productivity, and worker privacy and dignity will play a large role in the fate of the Amazon and other such patents that will inevitably surface in the coming years.

Dariush Adli, Ph.D., is the founder and president of ADLI Law Group. He is well recognized as a premier strategist in patent, trademark, copyright, trade secret and complex commercial disputes and is widely sought after by businesses large and small, seeking effective strategies for protecting their valuable intellectual property assets. He can be contacted at adli@adlilaw.com.