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The limitations of Facebook’s new patent

The New Kid on the Block
Tuesday the United States Patent and Trademark Office (USPTO) granted Mark Zuckerberg and Facebook patent number 7,669,123, covering “Dynamically providing a news feed about a user of a social network.”

Behold the Mini-Feed
What is “Dynamically providing a news feed about a user of a social network”? What it is not is a general news feed. The patent is much narrower than that, covering what it describes as a “mini-feed.” A mini-feed is a user-defined set of news feed inputs filtered by the reader. I might create a mini-feed of my family. I can filter the feed by just those activities they undertake relating to an upcoming family reunion, and automatically filter the results chronologically. If my sister joined the Trout Family Reunion fan page, the mini-feed I created and follow would reflect that.

Word on the Street
Pundits are up in arms over this patent, saying it goes “against everything that the patent system is supposed to do,” calling it the most significant social web patent since the six degrees patent issued in 2001 and arguing it could lead to a royalty windfall from the likes of Google and Twitter. Things are not merely so dire. While those forecasts may indeed have merit, they do not comport with my read of the scope of Facebook’s new patent.

How Patents Work
A patent is a legal document defining an invention. The document allows the inventor to prevent others from making, using or selling the invention without a license. People often get confused because they see a word or a structure in a patent and think that gives the inventor the right to stop other people from using that one element or structure. The scope of what the inventor can and cannot use the patent to stop others from doing lies in the grouping or combination of elements found in the patent “claims.” If the patent says the invention has three wheels, but the claims require four wheels, the inventor cannot stop other people from making the three-wheeled version of the invention.

What the Facebook Patent Covers
Claim 1 of the Facebook patent reads:

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.

That means, to infringe Claim 1 of the Facebook patent, a competitor would have to be using a system incorporating ALL of the elements of Facebook’s claim 1. If the competitor eliminated even a single element (and its equivalent) of claim 1, a court would, or should, rule that the competitor is not infringing claim 1 of the patent. Claim 1 of the Facebook patent is admittedly complex, it involves a unique combination of elements, the exact meaning and scope of which a court will likely have to determine. In addition, there are other independent claims in Facebook’s patent a court will also likely have to interpret.

What the Patent Does Not Cover
So if no one knows for sure what Facebook’s new patent claims cover, what is a competitor to do? Well, in addition to explaining what the invention is, the new Facebook patent also admits what the new invention is not. As explained in the patent:

“Conventionally, a user of a networking website connects with other users by providing information about the user to a social network website for access by the other users. For example, a user may post contact information, background information, current job position, hobbies, and so forth. Other users may contact the user and/or review information about the user based on common interests or for any other reason.

Recently, social networking websites have developed systems for tailoring connections between various users. For example, users may be grouped based on geographical location, job type, and so forth. Social networking offers users the opportunity for frequent, automatic notification of changes in the information posted by other users. In other words, rather than having to initiate calls or emails to learn news of another user, a user of a social networking website may passively receive alerts to new postings by other users.

There are existing mechanisms that allow a user to display information about other users. Some mechanisms may allow the user to select particular news items for immediate viewing. Typically, however, these news items are disparate and disorganized. In other words, the user must spend time researching a news topic by searching for, identifying, and reading individual news items that are not presented in a coherent, consolidated manner. Often, many of the news are not relevant to the user. Just as often, the user remains unaware of the existence of some news items that were not captured in the user’s research. What is needed is an automatically generated display that contains information relevant to a user about another user of a social network.”

So, from the patent itself, we know the new Facebook patent does not cover the following stand-alone items:

Social networks
News feeds
Posting contact information
Posting background information
Posting current job position
Posting hobbies
Grouping users by geographic location
Grouping users by job type
Posting automatic notifications of changes in others’ posted information
Receipt of passive alerts of the new postings of others.

Who is Infringing the Patent?
While Twitter’s basic system does not infringe Facebook’s new patent, many tangential things Twitter does, or may be planning on doing in the future, may indeed infringe the patent. Determination as to which of these things do or do not infringe the patent will likely involve millions of dollars of investigation, analysis, opinion, and possibly even litigation. For now however, your Twitter stream seems safe.

Brett Trout

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Posted in Internet Law, Patent Law, social media. Tagged with , , .