On Tuesday, February 23, 2010, the United States patent office awarded what some have called a game-changing social media patent to Facebook. The patent describes a method for “dynamically providing a news feed about a user of a social network.” That’s right, Facebook patented the social media newsfeed. The patent’s abstract goes into more detail:
A method for displaying a news feed in a social network environment is described. The method includes generating news items regarding activities associated with a user of a social network environment and attaching an informational link associated with at least one of the activities, to at least one of the news items, as well as limiting access to the news items to a predetermined set of viewers and assigning an order to the news items. The method further may further include displaying the news items in the assigned order to at least one viewing user of the predetermined set of viewers and dynamically limiting the number of news items displayed.
Within days of the USPTO granting the “news feed patent,” the blogosphere was ablaze with incendiary posts and comments, almost unanimously speaking out in opposition to the award. A Google search today for “Facebook news feed patent” comes back with more than 15,000,000 hits.
Some of these critics argue that the core concept of a social media news feed was “obvious” and should, therefore, be barred from patent protection. Others argue more broadly, asserting that software patents themselves are overly anti-competitive and detrimental to technological progress, which the U.S. patent system was designed to promote. Both of these complaints have been charged against a number of software and Interned-related patents in recent years. In fact, one group formalized its dissatisfaction with Internet software patents by creating The Patent Busting Project.
Though the factual merits of challenging a specific patent must be examined very closely, it is certainly true that many legal scholars and practicing inventors believe that our current doctrine for assessing the validity of patents is itself somewhat challenged by the economic and practical realities of Internet software development. However, stripping the away rhetoric , the core complaint in the blogosphere is that the Internet and e-commerce systems at issue simply aren’t very inventive, and certainly not inventive enough to warrant patent protection. Take a look at the Patent Busting link listed above for a list of such suspect patents.
With respect to the Facebook news feed patent, when reading through the hundreds of comments posted at various blogs decrying the news feed patent as the end of social media, the concern about “inventiveness” can be seen throughout. Many commenters assert that the news feed does not really seem like an invention at all. One commenter summed this up saying: “Shoot, I’ll patent ‘friendship’. Maybe ‘meeting’.” Another commenter added: “If you have 200 friends updating [their] profiles obviously you want a SUMMARY of it in 1 list. They have INVENTED nothing[!]”.
Admittedly, “inventiveness” is not a legal standard by which the U.S. patent system gauges the validity of patent applications. Rather, the patent system protects processes, machines, manufactures, and compositions of nature if they are shown to be new, useful, and non-obvious. Said another way, under patent law, if it is not new, useful, and non-obvious, then it is not an invention and not protectable. These requirements are statutory as part of the United States Patent Act, having been defined and developed through over 200 years of court decisions.
Though it is out of the scope of this post to analyze the Facebook news feed patent under existing patent doctrine, I think is interesting to unpack this idea of “inventiveness” as it stems from the uprising against the Facebook patent. This is interesting to me in part because many of these voices are non-lawyer lay persons, who are basing their view in the common (perhaps even pop culture) understanding of how patents work.
First, no one is arguing that the news feed is not useful. In fact, a number of voices suggest that the news feed is so useful that excluding others from using it would be stifling and detrimental to the development of new socially beneficial technology. In the language of patent doctrine, once could loosely analogize this view to the general bar against patenting natural phenomena. Though this doctrine is usually applied to things found in nature (e.g. the laws of physics), the idea is that the basic building blocks of nature should be available to all, because no one really invented them. Even though considerable effort might go into discovering these building blocks – which in many causes may be new, useful, and non-obvious – to exclude others from access would discourage technology progress and be bad public policy.
Second, patent doctrine also bars the patenting of results-based inventions, as compared to means-based inventions, which are patentable. A classic example of this is the Telegraph Patent case, where the Supreme Court invalidated a patent that claimed:
. . . the use of the motive power of the electric or galvanic current, which I call electro-magnetism, however developed for marking or printing intelligible characters, signs, or letters, at any distances, being a new application of that power of which I claim to be the first inventor or discoverer.
The Court held that claimed invention was so broad as to really be just a description of the desired result and outside the boundaries of patentable subject matter. Conversely, the Supreme Court later up help Alexander Bell’s patent for the telephone because it describe a specific means for transmitting sound with electricity – apparently the patent lawyers got a little smarter.
As applied to the news feed patent, both bars might be applicable if the invention claimed only described “summarizing social media activities” -- an interpretation asserted by a number voices in the blogosphere debate. At that level of generalization, a “news feed” might fall outside patentable subject matter. One would arguably be hard pressed to characterize the claims as a natural phoneme akin to the laws of physics – though, I think some bloggers are certainly trying to do just that. Nevertheless, one could make a salient argument that such a broadly drafted claim really describes only a result (a summary of social media activities) and would not be patentable subject matter.
In actuality, the patent describes a complex and specific multi-step process for organizing different pieces of data from different sources (users) and organizing that data into individualized lists based on the relationships between users. Despite Facebook’s patent, arguably other developers are still free to create their own methods to get similar results -- i.e. to solve the problem social media activity reporting. Subsequent developers will simply need to pay close attention to the Facebook method and find their own unique approach to problem. And of course, those who believe their businesses and websites would benefit from using the Facebook method are free to negotiate a license.
One more thought (I will expand on this more in my next post). Patent law’s constitutionally enumerated goal is to promote the progress of science and technology. Many critics argue that locking up Facebook’s method of a social media news feed will be detrimental to technological process contra to patent law’s goal.
However, I would like to suggest that the opposite may be true. Facebook’s exclusive control of their specific method will necessitate the second comers to the problem find their own solutions and develop their own methods. Subsequent developers will need to make steps forward and not rely on the work of Facebook. Exclusivity will demand progress. And where progress and research is not economically practical, as determined by the cost of development versus the cost of licensing, then I would suggests that pragmatic and prudent path is to license Facebook’s technology and commit future research and develop resources to other novel and unsolved problems.
More to come in my next post.
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