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Source link: http://archive.mises.org/10709/facebook-threatened-by-a-non-patent-troll/

Facebook Threatened by a Non-Patent Troll

September 25, 2009 by

A Baltimore startup with less than 5 employees, WhoGlue, is suing Facebook for patent infringement, based on a patent it previously–unsuccessfully–tried to unload at a patent auction. The patent, no. 7,246,164, is for a “Distributed personal relationship information management system and method”. In essence, they claim that Facebook infringes their patent by permitting members to send one another “friend requests” and sharing information online, tracking each others activities, and so on. I.e., they are claiming a state-granted monopoly on a crucial aspect of social networking.

WhoGlue wants to make it clear they are not a patent troll, heaven forfend. No,

“The patent is a key part of WhoGlue’s business, and the lawsuit is meant to protect his company’s livelihood, Hardebeck said. … “We didn’t patent something that we thought would be an opportunity to license” to other companies, he said. “We patented it because it was core to our business.”

So… they are not some nasty patent troll who is just suing Facebook for some invention they never practiced or sold. They just want to protect something that’s “core to their business.” Something so core they tried to auction it off (but failed). But do they claim that Facebook copied this “invention” from them? I doubt it–it’s unlikely Facebook did copy it, and copying need not be shown to prove patent infringement anyway. And what does this non-troll want? “Unspecified monetary damages”–probably hundreds of millions or billions of dollars, if the Blackberry patent suit is any guide–plus a permanent injunction issued by the state preventing Facebook from using this “invention”. I bet Facebook is so glad WhoGlue is not some annoying troll.

This case actually highlights the entire ridiculous kvetching over the scourge of “patent trolls.” This is just a bone thrown by the intellectual monopoly industry to pretend like they are reasonable and in favor of reform, while retaining the problematic nature of the system.

But if patents are a legitimate property right, then there is nothing wrong with using them. There is nothing any worse about “trolls” than any normal patent holder. (See my posts: Patent Trolls and Empirical Thinking (“patent law simply does not require inventors to make or produce their inventions. And to attack “patent trolls” as somehow worse than those who do is confused”); The Coming Software Patent Apocalypse (“given a patent system, there’s nothing wrong with patent trolls. It’s a natural outcome and use of the system. Those who favor the system should stop whining about its predictable results”); Patent Law: Baby Steps (“One of their concerns [of the "Coalition for Patent Fairness" members] is “patent trolls – companies that exist primarily to make money from patents through litigation instead of commercialization”-but as I’ve noted, the hostility against patent trolls is misplaced. They are no different than any other patentee who takes advantage of the corrrupt and unjust patent system.”).

What can be done? Not much. Facebook will probably end up spending millions in attorneys fees, and/or hundreds of millions in some settlement. But a key part of their strategy and defense will be analyzing WhoGlue’s government monopoly grant for weaknesses–primarily pieces of “prior art”–mostly other patents or publications that show WhoGlue’s claimed invention was already known, or obvious, before it was invented or more than one year before it was filed (May 10, 2001), and so should not have been granted by the PTO. I.e., that the court should “invalidate” the patent. So you can bet Facebook has its patent lawyers and searchers hunting for good prior art right now. If you are a fan of Facebook, and would like to help reduce the chance they’ll be shut down or drained of funds they could us to maintain and improve their service, and happen to know of any good prior art that shows what the patent claims, you could post it on PatentFizz on the patent’s page–PatentFizz is designed to collect “comments from the commnity”–as PatentFizz’s site says, “What if engineers and scientists could point people to relevant articles and patents that the Examiner didn’t consider during the prosecution process?”


FTG September 25, 2009 at 1:47 am

Without patents, WhoGlue would not have brought their idea into fruition and the world would have never witnessed such an innovative development – I mean, without patents, nobody would have heard of WhoGlue and their invention, right???

Ok, what do we have patent laws for, again?

Daniel September 25, 2009 at 2:33 am

Apparently, without WhoGlue, no one would request the friendship of others over the Internet.

bobobberson September 25, 2009 at 7:28 am

Friendship is prior art. It was already obvious beforehand to make friends. (maybe making friends was novel to whoglue in the 2001 era, but they surely are not going to have friends now)

Dale B. Halling September 25, 2009 at 9:48 am

Mr. Kinsella is advocating a working requirement for patents. The US has consistently rejected the idea of a working requirement. Just because I don’t use my pick-up truck does not give you the right to use it (steal it).

Mr. Kinsella advocated anarchy in the realm of intellectual property. His theories are based on the “scarcity theory of property.” He suggests incorrectly that intellectual property is not subject to scarcity and therefore not a legitimate property right. This theory of property rights is flawed both logically and factually. See my posts Scarcity – Does it Prove Intellectual Property is Unjustified? http://hallingblog.com/2009/06/22/scarcity-–-does-it-prove-intellectual-property-is-unjustified/
Scarcity and Intellectual Property: Empirical Evidence for Invention http://hallingblog.com/2009/06/25/scarcity-and-intellectual-property-empirical-evidence-for-inventions/
Scarcity and Intellectual Property: Empirical Evidence of Adoption/Distribution of Technology http://hallingblog.com/2009/06/25/scarcity-and-intellectual-property-empirical-evidence-of-adoptiondistribution-of-technology/.

Stephan Kinsella September 25, 2009 at 10:14 am

Halling: “Mr. Kinsella is advocating a working requirement for patents. The US has consistently rejected the idea of a working requirement. Just because I don’t use my pick-up truck does not give you the right to use it (steal it).”

Halling is attacking a straw man. I don’t think he read the post. He saw the word “troll” and assumed I was jumping on the anti-troll bandwagon.

I agree that people who attack trolls are often, in effect, advocating a working requirement. But I did not attack trolls. In fact I criticized the reasoning of people who selectively attack patent trolls, as if it makes a difference. I agree that it makes no difference.

bob September 25, 2009 at 10:51 am

Mr. Halling,

With all due respect, your blog posts “refuting” Mr. Kinsella were juvenile and weak. You should have simply said, “I believe in a labor theory of property rights,” which would save some time.

If labor is the basis of property rights, can I take your property, labor upon it, and claim it my own? Obviously, this means there is no such thing as property. Good day.

matskralc September 25, 2009 at 1:06 pm

I started to read one of Mr Halling’s posts, got to the first footnote, checked the cite, saw he spelled Stephan’s name wrong, and closed the window.

Captain Obviousness September 25, 2009 at 1:34 pm

Regardless of whether the claims in this patent are novel and nonobvious (they almost certainly are not), this patent is almost certainly invalid as directed to non-statutory subject matter under the current law. This patent was issued prior to the recent Bilski case at the Federal Circuit, which is before SCOTUS this year. Unless SCOTUS overturns Bilski, this patent is toast on its face.

Tim September 25, 2009 at 5:17 pm

That’s it. If it’s that easy, then I’m suing Mises.org for using letters or character symbols in their articles that I might have typed before I came on this site for the first time.

(8?» September 25, 2009 at 6:07 pm

Well, this should be interesting, patent-trolls vs. CIAbook.

Given this conflict cannot be allowed to be resolved (as the criminals lose either way), I predict a large amount of STFU money.

Walt D. September 25, 2009 at 6:41 pm

Why do the patent courts choose to ignore the restriction that patents can not be granted for something that is obvious?

AllRise September 26, 2009 at 5:02 am

Did you know, the people took FB to court at AllRise.com. Join in and see if the people really think that Facebook are guilty in patent infringement http://bit.ly/AllRise260

Gena777 January 30, 2010 at 1:55 am

I’ll admit that, at first, I was against the idea of NPEs (“patent trolls”) profiting from others’ innovations. However, after doing some research, I’ve come to agree that so-called “trolls” are doing nothing worse than many other companies. Notice that it’s generally the large corporations that get incensed about the “trolls.” Most NPEs don’t seem to be any worse than day traders, for instance.

Jim P. February 5, 2011 at 6:19 pm

All you need to do to get ahead in the world is this:

1. Create a company that doesn’t do anything.
2. Invest a relatively small amount of money in patenting vague ideas and imaginary technology.
3. Sue for infringement whenever a successful company inevitably wanders into your snare.
4. Settle as a nuisance with multi-million dollar company.
5. Retire or repeat, as needed. Or, alternatively – do both.

Also, don’t try to copy me on the above. It’s a patented technology. I’m just letting you know.

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