99 Problems but a News Feed Patent Ain’t One.

April 28th, 2010

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Back in February I received an email from someone asking me if Facebook’s patent on its News Feed affects us. Clearly, this person had both (a) read an article about Facebook’s patented feed and (b) used our product enough to notice that Glass has a feed of its own kind.

After quickly reading the article, my gut was to say, no this does not affect us much. I immediately thought our feed is much more different on a few levels, including usage, design, and what information populates our feed, etc. In fact, I was surprised that the Facebook patent in question had gone through the USPTO because it seemed so abstract. I mean, how could something as basic as a feed not have prior art to it already? Then again, maybe the entire system as a whole was patented? Admittedly not an IP lawyer myself, I thought, there must be something I was missing.

To give context to all of this, the article considered Facebook’s patent to be “as significant as the original six degrees patent .”

Not really having an answer, I reached out to our IP attorney. His response was almost immediate:

“The only reason this is news is because it’s Facebook’s first patent. Does it affect you?  Maybe.  But so do about 100,000 other patents that are out there. This Facebook patent is the least of your worries at this stage.”

Needless to say, his answer was very true, but we were left still a bit uninspired. So I decided to do more research on the Facebook patent.

Digging into it, the first thing to look at was the published patent itself, directly from the USPTO. The patent was filed in 2006, but was not finally published until February of this year. That means it went through some serious analysis. The patent application had originally made reference to numerous other patents, and the examiner who looked at the patent also cited just as many patents himself. Clearly, the idea of there being prior art to debunk the Facebook patent was null. Finding no answer there, I went for the claims. (For those of you not familiar with patents, a claim is the heart of any patent application. Claims are the section of the application that define the invention explaining why the invention is new, non-obvious, and useful.)

The patent has three main claims, of which the first has very many facets to it, about seven conditions, maybe more depending how you break it down. Namely, the claim was to “A method for displaying a news feed in a social network environment, the method comprising:

• monitoring a plurality of activities in a social network environment;
• storing the plurality of activities in a database;
• generating a plurality of news items regarding one or more of the activities, wherein one or more of the news items is for presentation to one or more viewing users and relates to an activity that was performed by another user;
• attaching a link associated with at least one of the activities of another user to at least one of the plurality of news items where the link enables a * viewing user to participate in the same activity as the another user;
• limiting access to the plurality of news items to a set of viewing users;
• and displaying a news feed comprising two or more of the plurality of news items to at least one viewing user of the predetermined set of viewing users.”

After looking at this claim, I understood better that the patent did not apply to us as much as we originally thought. Another reason there was no prior art debunking the patent is because the patent was so specific about all these conditions. You would have to be doing all of the things listed above to be infringing the patent. To give context, for example, Twitter, which broadcasts status updates, would not fall under or compete with this patent for lack of direct activities.

To the specific case of Glass, the Facebook feed and ours differ mainly because the two are inherently different products. Glass is a communication platform, not a social network. So the patent does not even affect us just by virtue of the different rules to our ballgame. For example, different information populates theirs and ours. Our feed acts as an inbox of messages. Additionally, Glass does not ask of the user any demographic information about himself. Because the possible action set on Glass is limited, the information that goes into our feed does not include the same type of information that populates Facebook’s feed. We don’t even have profile pages as they’re commonly understood by social network websites. The social nature of Glass is there only in so much as social components go into email. Glass is just another method of communication. Moreover, Facebook’s feed is focused on a social network environment “defined by a segmented community.” Glass has no communities, just individuals who share communication through comments above websites.

Looking back to our attorney’s response, I appreciate that he put things into perspective. On a more macro level, he had two main points: (1) we have bigger and more imminent worries and (2) what could we do if he said that yes, Facebook’s patent affects us?

The issues of copyright, anchoring and caching are what Glass is most challenged by. Those things affect our ability to make Glass as functional as we’d like it to be. There are probably thousands of patents out there that probably are a closer in similarity to these different pieces of Glass. As a good IP lawyer does, our attorney was putting himself in the shoes of us, as a startup with limited resources trying to build an IP portfolio for out investors. It’s almost the other way around: if he worried about this Facebook thing, I would be worried. 

Again, from a business perspective, what would we do, redesign all of Glass if our attorney said yes this affects us? Not really. Or maybe. Who knows! We would probably still steer our current course and then deal with the issue when we had to. I know one could say, well you can prepare now, but not really. Why would we? It’s unknown if the patent application will even hold. For a patent to remain valid, one must defend it. Facebook would have to search out violators and take them to court. Could Facebook really enforce their patent actively? Probably not for too long before realizing it’s too costly. Facebook would have to go after myriads of social networks out there. Not to mention the incredible backlash they would get. That would be one hell of a PR battle. All this just reinforces our attorney’s reaction which means we have other, more imminent things to worry about first. We can worry about Facebook’s patent when we are bigger and have more resources, if it’s still an issue then.

Lastly, what I admire the most about our attorney’s answer is that he implicitly said, “Don’t worry I’m the lawyer, I know when you should worry and I’ll tell you.” Instead of getting caught up in the legalities of the Facebook patent, where he could just be ticking away at our hourly rate, he gave us the big picture, with business perspective. This is what a good IP attorney does. A good IP attorney is the kind that is scholarly diligent, but is ultimately on your team, and knows what is worth spending time on and what is not.

Tagged with: intellectual property, patent, feed

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