Amazon Wristband Patents Await Potential Legal Challenges
Earlier this year, the U.S. patent and trademark office (USPTO) issued two patents to giant online retailer Amazon (“Amazon Patents”) for wristbands that are able to locate users’ hands and control and direct their movements. Specifically, the technology of the Amazon Patents determines the position of user’s hands relative to storage bins used for storing customer ordered items, and, in the event the systems detects that the user’s hands are moving towards the incorrect bin, directing the user’s hands towards to correct bin. While the patents are expected to provide Amazon with a significant competitive edge over competitors, they have also generated a fair amount of controversy among privacy advocates and employee rights organizations, who are concerned about the patents’ potential intrusion into employees’ privacy .
Looming potential legal challenges to the Amazon Patents include: whether the patents will be found to be unenforceable for being in conflict with the constitutional privacy provision of the Fourth Amendment and corresponding federally mandated state due process clauses; whether the implementation of the patents will be found to be violative of state specific statutory and common law privacy laws; whether the patents will be found to be invalid for failing the subject matter eligibility test of patentability; and whether courts will find that the patents are invalid for failing the “moral utility” test of patentability.
The privacy concerns surrounding the patents center around intrusive control and prying made possible by the implementation of the Amazon Patents at work places. For example, the wristbands can potentially be used to collect information concerning employees’ private moves, such as when an employee pauses to scratch or takes a bathroom break. More fundamentally, there is concern that by controlling and directing human movements, the Amazon Patents, in effect, treat employees as robots and go beyond the currently accepted norms of employee supervision, thus allowing technology to blur the line between humans and robots.
This article discusses potential legal challenges to the Amazon Patents, including: 1) whether the patents are subject matter eligible for patent protection; 2) whether the patents are invalid for failing to meet the “moral utility” requirement of patentability; 3) whether the patents run afoul of state common laws of intrusion and invasion of privacy; and 4) whether the technology will pass constitutional muster under the Fourth Amendment and corresponding federally mandated state due process clauses.
Public Interest in Challenging the Amazon Patents
The public has an interest in creating a balance between the constitutional mandates of encouraging advancement of sciences and technology, and protection of privacy by guarding undue intrusion into people’s personal affairs. Both notions are rooted in the U.S. constitution. Article I, Section 8, Clause 8, also known as the “Patent and Copyright Clause of the Constitution,” tasks congress with “promot[ing] 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, congress passed and George Washington signed, the original U.S. Patent Act into law in 1790. Each issued patent bears the seal of the USPTO, a government agency and grants its owner a long period (20 years from the filing date) of exclusivity. Armed with the police power of the government, an issued patent is a powerful tool in the hands of an individual or organization to enforce the patent owner’s exclusivity 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 implementation of the patents will result in gathering highly private information about the users. In addition, the patents challenge deeply held norms and expectations concerning the relationship between technology and humans.
Function and Operation of the Amazon Patents
According to the “Background of the Invention” sections of the Amazon Patents, the patents concern a system for tracking users’ hands relative to the position of storage bins used to fill customer ordered inventory, and for guiding the user’s hands towards the correct bins upon command. The stated purpose of the inventions is to improve inventory management systems for fulfilling customer orders. The patents explain that under conventional inventory management systems, inventory is stored in bins for quick and efficient retrieval of items in response to an incoming customer order, which, in turn requires that bins containing the ordered item be readily and accurately identifiable and accessible. The patents propose to increase the order fulfillment efficiency process by keeping track of the position of inventory bins relative to the workers. The Amazon Patents criticize existing processes used for keeping track of inventory bin locations as being uneconomical and inefficient and argue that other proposed solutions to improving customer order fulfilment efficiency, such as, for example, a computer vision apparatus to track location of inventory bins inadequate, are cumbersome and costly.
The technology disclosed in the Amazon Patents uses ultrasonic communication to track employee hand movements with the aim of evaluating and enhancing task performance for inventory workers. According to their “Abstract of the Invention” section, Amazon’s patented system is composed of the following elements: 1) inventory bins; 2) a user-wearable unit (wrist band) configured to be worn on user’s hands; 3) antennas for sending and receiving RF signals aimed at tracking locations of the wrist bands; and 4) sensors for identifying inventory bins based on their proximity to the user worn wristband.
The Amazon Patents explain that the patented system operates by emitting ultrasonic pulses at predetermined intervals in order to keep track of the relative position of the worker’s hands and the target inventory bins. This, according to the Amazon Patents, will help determine if the worker interacted with the correct bin and will allow the system to guide the worker’s hands toward the correct bin by sending a pulse to the wristband to alert the worker when the worker’s hands are in close proximity to a target bin, and to alter and redirect the user’s hand if the hand is moving towards the incorrect bin.
Amazon’s Response to Criticisms of its Patented Wristbands
Amazon has responded to criticism of its patented system by categorizing it as an extension of its current practice, according to which workers track movement of items from shelves into bins by using handheld scanners and explaining that the aim of the new technology is to simplify and enhance efficiency of the current system. Amazon has downplayed concerns about the patents’ potential for invading workers’ privacy as overblown and instead has sought to portray the patents as an incremental improvement in enhancing productivity and efficiency of order fulfilling by freeing up employee’s hands and eyes from scanners and computer screens.
Potential Legal Challenge Based on Subject Matter Eligibility
Despite issuance of the patents by the USPTO, courts are the ultimate arbitrators in deciding validity and enforceability of issued patents. In the case of the Amazon Patents, questions have been raised about whether the USPTO exceeded its authority in issuing the Amazon Patents. Such questions have been raised before and courts have intervened to invalidate even entire categories of USPTO issued patents as “subject matter ineligible.” For example, back in 2013, the U.S. Supreme Court found genes to be not eligible subject matter for patent protection. In the case of the Amazon Patents, the issue is likewise whether courts will find the subject matter of the patents, and its potential to monitor, control and direct physical human movements, to be ineligible for patent protection.
Potential Validity Challenge Based on Lack of Moral Utility
Aside from enforceability, the Amazon Patents are vulnerable to a potential validity challenge for failure to meet the “moral utility” requirement of patentability. Under the patent statute, the three basic requirements for eligibility of an invention for patent protection are: utility, i.e., that the invention has a practical application and is more than an abstract idea; novelty, meaning that the invention is new and did not exist before; and non-obviousness, meaning that there are meaningful differences between the invention and what came before it. “Moral utility” is an aspect of the requisite utility for patent eligibility. Under the judicially created doctrine of “moral utility ”, for an invention to be “useful,” it cannot conflict with the “sound morals of society.” Courts have explained that: “All that the law requires is that the invention should not be frivolous or injurious to the well-being, good policy, or sound morals of society…”
The doctrine, which had fallen out of favor for decades, has in recent times experienced a revival. For example, the court in Geneva Pharmaceuticals, Inc. v. Glaxosmithkline PLC noted that a patent possesses utility “if it will operate to perform the functions and secure the results intended, and its use is not contrary to law, moral principles, or public policy.” A challenge to the validity of the Amazon Patents for lack of moral utility is plausible on the basis that they impermissibly violate privacy and dignity of individuals by effectively treating humans as robots.
Potential Legal Challenges Based on Unenforceability
Another potential legal challenge to the Amazon Patents would focus on enforceability. A patent can be unenforceable on public policy grounds despite being subject matter eligible and valid. There is precedent for such action. Back in the early 1990’s a court ruled that an eye surgeon who used a patented procedure for stitchless cataract incisions was not liable to the physician-plaintiff for infringement. Congress responded by enacting legislation , which has rendered certain patented medical processes unenforceable against medical practitioners or an involved health care entity who utilize the patented process. Such could be the outcome with respect to the Amazon Patents, where courts and/or congress would find the patents to be unenforceable when applied in a manner which would violate individual’s protected constitutional privacy rights.
Potential Legal Challenges Based on the Fourth Amendment
The Amazon Patents are vulnerable to challenges for potential conflict with the privacy protections of the Fourth Amendment to the U.S. Constitution. That scenario would result in a clash between two deeply rooted provisions of the U.S. Constitution. Article I Section 8, Clause 8 of the U.S. Constitution, also known as the “Patent and Copyright Clause” authorizes congress to grant inventors and authors exclusive rights to their respective inventions and works of authorship for limited periods of time, 20 years under current law. Patent rights are enforceable through courts. A prevailing patent owner plaintiff in a patent infringement suit can be entitled to an injunction and monetary compensation.
The U.S. Constitution contains no explicit right to privacy. However, over the past 100 years, the U.S. Supreme Court, relying on the Bill of Rights, has increasing expanded certain individual rights based on privacy considerations. These carved out privacy rights include a person’s freedom from unreasonable search and seizure under the Fourth Amendment. The Supreme Court has held that the due process clause of the Fourth Amendment applies to states as well. Accordingly, private sector employer’s conduct with respect to their employees, which is subject to state laws, is also subject to the Fourteenth Amendment’s privacy requirements. The concern is implementation of the Amazon Patents in a manner which would be violative of individual privacy rights.
The legal debate concerning the tradeoff between privacy and efficiency at workplace is not new. Common worker monitoring techniques, including work place surveillance, employer monitoring of employee emails and internet browsing have been around since at least the 1990’s. However, such concerns have come into renewed focus with the Amazon Patents as they potentially cross the currently generally accepted bounds of surveillance and monitoring of employees into the uncharted territory of directing and physical control of humans.
In its 2010 landmark decision, City of Ontario v. Quon , the U.S. Supreme Court affirmed that worker Fourth Amendment rights are meant to guarantee “privacy, dignity, and security of persons against certain arbitrary and invasive acts.” The decision identified certain factors for courts to consider in deciding whether employer intrusion on employee’s privacy rights passes legal muster. These factors include: 1) whether the employee has a reasonable expectation of privacy in the area covered by the technology; 2) whether the employer has a legitimate work-related rationale for the intrusion; 3) whether the intrusion is reasonable in scope; 4) availability of less intrusive means to achieve the same purpose; and 5) public acceptance of the complained of conduct.
City of Ontario concerned city employees who had been provided with pagers by the city to use for sending and receiving text messages in the event of an emergency. According to its employee policy handbook, the city had the right to access and monitor communications to and from pagers issued by the city, and employees should not have any expectation that such messages would be treated as private or confidential. Plaintiff Quon, a city employee with a city issued pager, repeatedly exceeded the monthly limit for the number of characters used. In response, the city ordered an audit of Quon’s communications to determine the reason for the over the limit excess and discovered that the messages Quon sent were mostly of a personal nature, including some, which were of a sexually explicit nature. In response to its audit findings, the city implemented disciplinary measures against Quon, to which Quon reacted by filing suit against the city for violating his Fourth Amendment rights.
Discussing the relevant facts of Quon, the Supreme Court confirmed legal recognition of some privacy in worker communications on city issued pagers but noted that such expectation is tempered by the notice city had provided to its employees regarding lack of privacy in such messages. An additional factor weighing against privacy expectation in the messages was Quon’s position as a law enforcement officer, thus his likely awareness of city’s scrutiny of his actions, and that such scrutiny would involve examination of his communications during the work hours. Next, reviewing the particular circumstances of the complained of search, the Supreme Court found the search had been motivated by a proper purpose, which was to determine whether the “whether the character limit on the city’s contract with [vendor] was sufficient to meet the city’s needs” , that it was tailored to the problem at hand and was had been reasonable in scope “because it was an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use.” The decision then found that the review had not been overly intrusive, even though less intrusive means of obtaining the same information may have been available.
In an earlier decision, the Supreme Court stated that “[A] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Therefore, a key question in a Fourth Amendment violation inquiry is whether society accepts the complained of conduct as reasonable. In that regard, the Supreme Court has recognized that the legal standard needs to be in phase with the public acceptance of the tradeoff between the intrusive effect of new technology and the efficiency in productivity resulting therefrom. Taking their cue from the U.S. Supreme Court, other federal and state courts have generally been cautious about establishing “broad precedents as to privacy rights vis-a-vis electronic devices and emerging technologies” because of “the difficulty in determining what privacy expectations are reasonable.” In City of Ontario, the Supreme Court cautioned that “[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” The Supreme Court thus consciously avoided setting forth “[a] broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment.”
Potential Challenges Based on State Privacy Laws
In addition to Federal (and corresponding due process mandated requirements at the state level), the Amazon Patents can also potentially run afoul of various state specific privacy laws. For example, California courts have recognized a common law tort of “intrusion,” under which a defendant, who intentionally intrudes into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy in a manner that is “highly offensive” to a reasonable person is liable for the tort of intrusion. The California Supreme Court has explained that the tort is meant to recognize a measure of personal control over the individual’s “dignity and autonomy.” The implementation of the Amazon Patents on its employees will potentially run afoul of this tort if they are found to have “penetrated some zone of physical or sensory privacy … or obtained unwanted access to data” by electronic or other covert means, in violation of the law or social norms. By way of examples, the patented wristbands can potentially be used to obtain and record information of employee movements during their break time when the employee’s expectation of privacy will likely be deemed “objectively reasonable.” The California Supreme Court has linked the reasonableness of privacy expectations under the law to such factors as (1) the identity of the intruder, (2) the extent to which other persons had access to the subject place, and could see or hear the plaintiff, and (3) the means by which the intrusion occurred.
Relevant factors in determining whether the alleged intrusion is “highly offensive” under the particular circumstances include the degree and setting of the intrusion, and the intruder’s motives and objectives. California Constitution protects privacy rights of individuals against both government and non-governmental actors and provides a right of action for violations against both private and government entities. To prevail, the party seeking relief must meet several requirements. First, the complainant must possess “a legally protected privacy interest” such as “conducting personal activities without observation, intrusion, or interference”, as determined by “established social norms.” Second, the alleged expectations of privacy must be reasonable, based on “customs, practices, and physical settings surrounding particular activities”. Third, the plaintiff must show that the intrusion by its “nature, scope, and actual or potential impact as to constitute an egregious breach of the social norms.”
The person or entity accused of the violation can defend itself by providing a justification for the intrusion. Courts are then to balance the competing interests by applying “general balancing tests.” To the extent the plaintiff raises the issue in response to a claim or defense of competing interests, the defendant may show that less intrusive alternative means were not reasonably available.
The Amazon Patents are vulnerable to challenge under Federal and state specific privacy laws for its capability to collect much personal information concerning the location and movements of employees who wear the wristbands, much of which can objectively be considered to be private. In addition, there is the potential for inadvertent gathering of information on workers. Regardless of its purpose, the obtained information could put the employee at risk. For example, a company could fire a worker if they are found to be performing tasks slower than co-workers.
It is clear that the Amazon Patents, while ground breaking and even cutting edge in improving worker efficiency, are also vulnerable to legal challenges for invasion of worker privacy and for blurring the line between humans and robots. The result can be a clash of titanic proportions as two cherished constitutional principles square off in the legal battle zone.
 U.S. Patent Nos. 9,881,276 and 9,881,277 (“Amazon Patents”)
 The New York Times, February 1, 2018, “If Workers Slack Off, the Wristband Will Know. (And Amazon Has a Patent for It.).”
 U.S. Patent No. 9,881,276, col. 1, ll. 15-49; U.S. Patent No. 9,881,277, col. 1, ll. 14-49.
 See, Abstract of the Amazon Patents
 Lowell v. Lewis 15 F. Cas 1018, 1019 (C.C. Mass. 1817) (No. 8568)
 Application of William C. Anthony, 414 F.2d 1383 (C.C.P.A. 1969)
 Geneva Pharms., Inc. v. Glaxosmithkline PLC, 213 F. Supp. 2d 597, 610 (E.D. Va. 2002)
 Pallin v. Singer, 1996 WL 274407 (D. Vt. 1996).
 35 USC §287(c).
 City of Ontario v. Quon 560 U.S. 746, 130 S. Ct. 2619, 177 L.Ed.2d 216 (2010)
 City of Ontario, Cal. v. Quon, 560 U.S. 746, 761–62, 130 S. Ct. 2619, 2631, 177 L. Ed. 2d 216 (2010)
 City of Ontario, Cal. v. Quon, 560 U.S. 746, 763, 130 S. Ct. 2619, 2632, 177 L. Ed. 2d 216 (2010)
 Kyllo v. United States, 533 U.S. 27, 33 (2001)
 Rehberg v. Paulk, 611 F.3d 828, 845 (11th Cir.2010) (citing City of Ontario v. Quon, 560 U.S. 746, (2010))
 City of Ontario, Supra, 130 S.Ct. at 2629
 Id. at 2630
 Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1482, 232 Cal.Rptr. 668; Taus v. Loftus (2007) 40 Cal.4th 683, 724–725, 731
 Shulman v. Group W. Productions, Inc., 18 Cal.4th 200, 231 (1998), 74; Cal.Rptr.2d 843, 955 P.2d 469
 Shulman v. Grp. W Prods., Inc., 18 Cal. 4th 200, 232, 955 P.2d 469 (1998), as modified on denial of reh’g (July 29, 1998)
 Sanders v. American Broadcasting Companies (1999) 20 Cal.4th 907, 85 Cal.Rptr.2d 909, 978 P.2d 67
 Shulman, supra, 18 Cal.4th 200, 236, 74 Cal.Rptr.2d 843, 955 P.2d 469; Miller, supra, 187 Cal.App.3d 1463, 1483–1484, 232 Cal.Rptr. 668.
 Hill, supra, 7 Cal.4th 1, 27, 26 Cal.Rptr.2d 834, 865 P.2d 633.
 Id. at p. 20, 26 Cal.Rptr.2d 834, 865 P.2d 633
 Hill, supra, 7 Cal.4th 1, 35, 26 Cal.Rptr.2d 834, 865 P.2d 633.
 Id. at p. 36, 26 Cal.Rptr.2d 834, 865 P.2d 633.
 Id. at pp. 36–37, 26 Cal.Rptr.2d 834, 865 P.2d 633.
 Id. at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633
 Id. at p. 34, 26 Cal.Rptr.2d 834, 865 P.2d 633.
 Id. at p. 38, 26 Cal.Rptr.2d 834, 865 P.2d 633.