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Facebook Threatened by a Non-Patent Troll

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?"


Stephan Kinsella

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.