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Patents Must Be Unique. Facebook’s 7,669,123 Isn’t.

Who Wants a Patent? Because they seem to be getting handed out for just about anything.

I’ve long believed that in general software patents are a very bad idea. This week the United States Patents and Trademarks Office set a new record for calling something unique that’s just not anything of the sort.

To start, let me state that I’m not an attorney. That said, I’ve dealt with Intellectual Property for a very long time and successfully defended against a trademark infringement claim when my software Uninstall for Windows was sued by the makers of the program Uninstaller. In fact, I got Uninstaller’s trademark invalidated. It was pretty much a matter of explaining common sense in a calm, rational manner to the USPTO.

So when Facebook received US Patent 7,669,123 this week I was dismayed. Patents and the applications filed for them are supposed to describe something unique, and as much as I believe that software is mostly a representation of an idea rather than a thing and therefore shouldn’t generally be patentable at all, Facebook’s patent for “Dynamically providing a news feed about a user of a social network” doesn’t really even describe software.

Make no mistake: US Patent 7,669,123  describes the use of software, but it doesn’t actually lay out the software being used at all. 7,669,123 also tells what the use of the software will be, but functionally that use can be described very simply:

We’re going to take information based on a set of criteria that we believe are important to you, decide what’s important, and show (only) that to you“.

You know, kind of like what the editors and staff at a newspaper do. Not New. Not Unique. Not Patentable.

In fairness 7,669,123 automates that process. And if Facebook described the specifics of the algorithm that they use in their application for what has become 7,669,123 then that specific process, if unique, might deserve patent protection. But they haven’t.

I don’t know whether I’m more upset that the USPTO has misunderstood the very idea of what a patent is, or that Facebook, with 7,669,123 in hand, is likely to start suing any and everyone who automates selective informational displays in anything that might be called a “social networking” environment.

Oh: and the very title of the patent application is not descriptive of what the patent does, which should have been enough to get the application squashed out of hand. The process Facebook describes does not “provide a news feed about a user of a social network”. It provides a news feed about the people the user knows.

If you’re at all concerned about this—and you should be—I implore you to contact the Office of Patents and Trademarks to get patent 7,669,123 invalidated. And if you’re MySpace, Twitter, or another social network and you don’t make big noise about this, well, enjoy the next thirteen years in court.

23 Comments

  1. It’s not just social networking sites that could get hit with this, it’s any web site that has social features, even if the social features aren’t the main focus. How about a movie forum? It’s not a social network, but if you want to “follow” certain people on the site, tough. The site can’t show you posts written by just those people. How about a gaming site? The site isn’t allowed to give you a list of which of your friends played a round of poker since you last logged in. For that matter, it can’t even tell you which of your friends is currently logged in, because that is an implicit news item derived from site activity.

    This better get squashed.

  2. they didn’t put “It provides a news feed about the people the user knows.” because facebook is forward looking. this will cover the news feed from the users virtual pet on littlest pet shop!

  3. You know what. I deleted my facebook when I decided I didn’t like it anymore. Actions speak louder than words… … … so… … … you gunna do something… … … or just.. … keep……. typing/talking???

    Just curious what you’re really upset about.

    Jen

    • Jen, I’m upset that patent 7,669,123 is a clear break from what patents are supposed to be.

      I’m a business guy, and this stuff matters. Am I planning to stop doing Facebook because I think they caught a lucky break with 7,669,123? No, of course not. In fact, just the opposite; I’ll be making noise.

      By the way, though: the fact that you are posting a link back to a page that is A) on MySpace, B) represents a 25-year-old male with a different name than yours, and C) hasn’t been logged onto in eight months raises questions about what YOU are doing . . . so? What?

  4. Well Jeff… I’m a business woman. When I don’t like what someone does… I fire them. For the good of the company. So if you feel the need to take them out from the inside… that’s cool. I just prefer the outer war.

    Boom.

    I liked facebook… up until the day people tried telling me what to put on it. Nobody tells me what to do. You can ask. I love when people ask. But talk AT me… and you’re fired.

    simple. true. end.

  5. Ohhh… you wanna know what I’m doing?

    I’m trying to take care of my son.

    I put that page up so his father could see him, when he isn’t with him.

    I put my age… because babies can’t have myspace.

    I hope that’s ok with you.

    • Well yikes!

      Jennifer, like you, I’m a big “no BS” proponent. I’m sure you can understand why my reaction to the incongruity between what you wrote and the page you linked back to was what it was.

      I’m really glad to see you’re a real person, and I’m especially glad to have you engaging here!

  6. Yea. We’re both real people. The only difference between you and me. Is I have the ability to give grace every once and a while. You should pick your battles with great caution. Or else the people around you just think you sound like an idiot.

    But I still love you!

    • Jennifer, I have a habit of assuming that people ask questions when they actually want answers, so fully aware that you might be putting me on here goes:

      Babies (and pets, and whoopee cushions . . .) can have MySpace accounts. But if Myspace, Facebook, Twitter, or anyone else deems that not OK, then they can’t. IN GENERAL, the rule of thumb follows the broad and hard-to-qualify-the-effects-of-flouting USA rules that you have to be 13 to do that kind of stuff.

  7. Hmmmm… I don’t like that. I can’t. Nope. Don’t like it one bit. Look at me go… not liking it. . … … what am I gunna do?

    I guess that’s why there is the World Wide Web… I can say… the things… I don’t like.

    And I like you :-)

    You ask good questions… and give good answers :-)

    provoking only brings truth

    so provoke…

    till you find truth.

    then stop.

    and.

    be

  8. It’s good to keep facebook accountable… I agree. I agree with your desire to want justice. You are fighting for people. And I thank you for that. Your profession must be a fun one :-)

    I just like talkin :-)

  9. Perhaps the key phrase for this patent was “social network”. Still, haven’t many web based forums had similar realtime notification capabilities years before FB even existed? And aren’t forums social networks? Or is a social network a beast all unto own?

    • Insightful point, indeed. Reminds me of a time in the early 1990s when the word “multimedia” started getting thrown around and I suggested that merely having a hyperlink in a document qualified as “multimedia”. Think about it.

      I’ve been really encouraged to see that since 7,669,123 was issued there has been quite a bit of discussion going on across the Internet about what qualifies as unique and the whole idea of software patents being essentially unenforceable.

  10. Jeff,

    I believe software patents should be enforceable in general but NOT this particular patent.

    The teachings diclosed in this patent is not only obvious but its actually incorrect because it does not teach the claimed invention!

    I think facebook just wants to look good by having some patents in their IP portfolio no matter how obvious & idiotic the patents may seem….

    • Johnny, I love that perspective, and as cynical as I can be (and boy can I), it hadn’t occured to me that maybe the whole thing was just a big scam…”let’s see if we can pull THIS off!”.

  11. Jeff,

    An article claims that Facebook probably intends to use the patent “defensively”. LMAO!!

    People on different forums and blogs are trying to “guess” what the patented subject-matter is. Its obvious that nobody knows what the invention is really about. Is it a news feed? a forum? an automated subscription system or what???

    How can a patent this vague and confusing be used to accomplish anything at all, let alone be used “defensively”??

    • —Most of the time a claim that an asset such as a patent, including—the lovely 7,669,123 —is of course hogwash. In theory, maybe, but let’s face it; “defensively” means “to defend our intellectual property”, so the word is being misused.

  12. Jeff,

    Some have said that the invention is obvious therefore not patentable. Did anyone actually find any evidence to support that?

    • Johnny, the word “evidence” and the phrase “obvious and therefore not patentable” are, sadly, at direct odds. Why? Because although you wouldn’t think so, “obvious” is an oxymoron and once corrupted for legal use becomes meaningless.

      Is it obvious that the idea of “sorting through a mountain of stuff to find something more useful” is almost intrinsic to life? Sure. Is HOW it’s done in this case obvious? I’d say not. So look; in one sentence I argued both sides.

      Sure, lawyers will attempt to use the obvious argument on both sides of working through the resolution of the validity of US Patent # 7669123. But ultimately I believe whether 7669123 is upheld will hinge on two things: one is the “Unique” issue, and of course that will get argued both ways too. The other is the fact that what the patent describes doesn’t match what it claims to be for. As I said in the original post, that all by itself ought to be enough to make 7669123 go away.

  13. Jeff,

    Would you believe me if i told you that even though this patent was filed back in year 2006, Facebook was able to somehow make substantial changes to the original patent (the one filed in 2006)? This is illegal by the way, under the current patent law.

    I think there is something very wrong with USPTO. I believe someone has been bribed to allow Facebook to make the changes to the original inventive concept….

    • Johnny, I don’t know enough to comment about the law vis a vis altering patent applications after they are filed. I’m sure there’s language in there that uses words like “no substantial changes allowed”, and I presume the issue then becomes what a word like “substantial” means and who is interpreting it.

      As for the idea of someone having been bribed, I imagine that’s possible, but I think it’s way more likely that the process is broken and the examiners are just not good enough. Of course, that still leaves the question of what “good enough” even means.

      With US Patent # 7669123, as with many if not most software patents, I really think it’s so complex an issue that there’s not really a way to get enough people (if any) who ARE “good enough”. And that just feeds back to my original point: software patents are generally a bad idea.

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