Breaking News Feed: Facebook's Questionable Patent

Jamie Goodman is a J.D. candidate at Osgoode Hall and is taking the Patent Law course.

Facebook, a website whose primary platform is based around the notion of sharing, recently received an exclusive patent on its focal “News Feed” layout, which could very well hinder many other social networking sites from sharing information in a similar fashion.  News of this patent award has resulted in a mild internet panic among commentators concerned with Facebook’s ever-increasing domination of social networking websites, and their newfound potential to unfairly attack competing websites with infringement claims. 

When put under a legal microscope, though, it becomes apparent that the strength of this patent might be refuted on the basis of subject-matter patentability and a lack of any true inventive step.  Yet, even if the protection afforded to the News Feed patent proves to be minimal, Facebook’s acquisition of this exclusive right is reflective of how, in a given industry, the patent system may be manipulated to serve defensive business tactics instead of fostering innovation and rewarding ingenuity (the actual rationales behind the patent system).

The patent, applied for in 2006 and granted on February 23rd, 2010, covers the website’s method for automatically presenting up-to-date information about users’ activity within the Facebook community; in fact, the patent applies only to “implicit actions” (for example, publishing a notice that John Doe is now friends with Jane Doe) and so other user-generated-content websites who employ similar streaming displays (such as Reddit) will likely be unaffected by the patent, since their displays typically provide links to outside sources and other websites; meanwhile, Twitter (a networking website which is, basically, one large News Feed) and other social networking sites (MySpace, Buzz) might feel threatened by Facebook’s patent, should the circumstance arise whereby infringement litigation is pursued.

If Facebook were to take its competitors to court for using similar “News Feeds,” the first line of defense would be to critique the validity and strength of the patent itself, whereupon two arguments immediately spring to mind.  The first approach would be to attack the strength of the patent on the grounds of its subject matter, for traditionally any method, especially a method for displaying information, would be given minimal legal protection (if any at all).  On the other hand, the patenting of any software code (in turn, the patenting of any mathematical method for computer translation) is still a relatively new (and very gray) area, and so it can be assumed that the novelty of this patent type might be sufficient enough to overcome its vague subject matter.  Moving on then, a second approach in defending against an infringement claim by Facebook would be to attack the patent on the grounds of obviousness.

Certainly, the News Feed patent passes the fundamental criteria of novelty (assuming the code behind it was original) and utility (the News Feed is arguably one of the most popular features of Facebook, although interestingly enough it was vehemently opposed by users when it was first introduced), however it can still be argued that the patent lacks an inventive step (or rather, is obvious).  Indeed, the application is so simple that many software programmers might find the News Feed to be too simple of a jump from previous information-display methods so as to merit any strong legal protection.  Apparently, prior to Facebook’s patent application there were various mechanisms on the internet used for automatically displaying user content, only they were rather disorganized and random as compared to the News Feed which is streamlined and orderly; taking this into account, could it really be said that the News Feed was a stroke of inventive genius?  According to Gene Quinn of IP Watchdog, the answer seems obvious, as he astutely notes that: “Invention cannot and should not reside in being the first to implement something by merely pulling together known and readily understandable pieces of prior art.”

Thus, from a legal perspective, the News Feed patent may not be as dreadful as initially thought, given the unlikelihood of Facebook successfully using it to take injunctive action against its competitors.  Given this revelation, though, it seems quite plausible that Facebook applied for the patent with no intention of ever using it as a catalyst for instigating aggressive litigation, but did so as a defensive effort to ward off its current and future competitors (by deterring other websites from using similar layouts).  By all means, Facebook is entitled to apply for a patent over its software (and if that patent is granted, then so be it), but given the weakness of this particular patent application in combination with Facebook’s increasingly-expansive business model, this move appears to be little more than an old fashioned land-grab.

2 Comments
  1. There is much speculation amongst bloggers regarding whether and how Facebook will exploit its newly granted patent. Obviously they have already profited from its use in their business model but will they also sue the makers or Twitter, LinkedIn and others? Goodman aptly points out a number of weaknesses in Facebook’s patent and suggests that Facebook would not be successful in an attempt to enjoin others from using its patent in any event.

    Or is it just an “old-fashioned land-grab” as Mr. Goodman surmises? There often seems to be disdain of such “land-grabbing patents” as if they are somehow less worthy. Should land-grabbing patents be discouraged? Patent trolls are usually used to support the argument that land-grabbing patents should be discouraged. To contradict these claims, Erik Sherman writes that less than 10% of a company’s patents are developed into products and that “trolling would seem to be the ordinary order of business of even the largest companies” (http://industry.bnet.com/technology/1000914/patent-life-spans-shorter-than-law-allows/). To add to this line of thought, the UK Intellectual Property Office recently commissioned a study on how best to deal with the increasing backlog of patent applications (available at: http://www.ipo.gov.uk/p-backlog-report.pdf). The report provided two main motives for obtaining patents: traditional protection of innovation and strategic motives. The strategic motives included offensive and defensive blocking of competitors, use of patents for exchange potential or for negotiations, patenting because competitors were patenting, licensing revenues and reputational factors. The report also noted that strategic patenting is considered a key cause of the recent surge in patent applications. Presumably these can’t all be from those that one would consider to be patent trolls.

    I suppose it does seem “unfair” that a company can sue another for patent infringement when it had no plans to use it. Certainly the argument that “everyone is already doing it so it must be fine” is not a particularly compelling justification. What about the argument that land-grabbing patents are just as beneficial because they fulfill the underlying purpose of the patent system? If the goal is to encourage and reward innovation in exchange for expanding the knowledge within the public domain, then even land-grabbing patents (assuming they meet the legal tests for granting the patent) meet that purpose. There is after all, no requirement on a patentee to commercialize or otherwise use his/her patented invention. Is that any more convincing or should there be some sort of mechanism, such as restricting the available remedies, requiring patent holders to use it or lose it so to speak?

  2. facebook patent is innovative because:

    (1) each news iteams identified objects associate with user’s each action and viewing or reciving user can access said identified objects for participating same activities as another or sending user.

    e.g. New Item of “A”: User “A” install Game “W”
    Viewing User “B” Friend of “A” can access or participate by clicking on said game

    so its super invention – objects are controlled by user and manage by web site – links of object enables users to access said objects

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