Breaking News Feed: Facebook's Questionable Patent

Breaking News Feed: Facebook's Questionable Patent

Jamie Goodman is a J.D. candidate at Osgoode Hall and is taking the Patent Law course.

Facebook, a website whose primary platform is based around the notion of sharing, recently received an exclusive patent on its focal “News Feed” layout, which could very well hinder many other social networking sites from sharing information in a similar fashion.  News of this patent award has resulted in a mild internet panic among commentators concerned with Facebook’s ever-increasing domination of social networking websites, and their newfound potential to unfairly attack competing websites with infringement claims. 

When put under a legal microscope, though, it becomes apparent that the strength of this patent might be refuted on the basis of subject-matter patentability and a lack of any true inventive step.  Yet, even if the protection afforded to the News Feed patent proves to be minimal, Facebook’s acquisition of this exclusive right is reflective of how, in a given industry, the patent system may be manipulated to serve defensive business tactics instead of fostering innovation and rewarding ingenuity (the actual rationales behind the patent system).

The patent, applied for in 2006 and granted on February 23rd, 2010, covers the website’s method for automatically presenting up-to-date information about users’ activity within the Facebook community; in fact, the patent applies only to “implicit actions” (for example, publishing a notice that John Doe is now friends with Jane Doe) and so other user-generated-content websites who employ similar streaming displays (such as Reddit) will likely be unaffected by the patent, since their displays typically provide links to outside sources and other websites; meanwhile, Twitter (a networking website which is, basically, one large News Feed) and other social networking sites (MySpace, Buzz) might feel threatened by Facebook’s patent, should the circumstance arise whereby infringement litigation is pursued.

If Facebook were to take its competitors to court for using similar “News Feeds,” the first line of defense would be to critique the validity and strength of the patent itself, whereupon two arguments immediately spring to mind.  The first approach would be to attack the strength of the patent on the grounds of its subject matter, for traditionally any method, especially a method for displaying information, would be given minimal legal protection (if any at all).  On the other hand, the patenting of any software code (in turn, the patenting of any mathematical method for computer translation) is still a relatively new (and very gray) area, and so it can be assumed that the novelty of this patent type might be sufficient enough to overcome its vague subject matter.  Moving on then, a second approach in defending against an infringement claim by Facebook would be to attack the patent on the grounds of obviousness.

Certainly, the News Feed patent passes the fundamental criteria of novelty (assuming the code behind it was original) and utility (the News Feed is arguably one of the most popular features of Facebook, although interestingly enough it was vehemently opposed by users when it was first introduced), however it can still be argued that the patent lacks an inventive step (or rather, is obvious).  Indeed, the application is so simple that many software programmers might find the News Feed to be too simple of a jump from previous information-display methods so as to merit any strong legal protection.  Apparently, prior to Facebook’s patent application there were various mechanisms on the internet used for automatically displaying user content, only they were rather disorganized and random as compared to the News Feed which is streamlined and orderly; taking this into account, could it really be said that the News Feed was a stroke of inventive genius?  According to Gene Quinn of IP Watchdog, the answer seems obvious, as he astutely notes that: “Invention cannot and should not reside in being the first to implement something by merely pulling together known and readily understandable pieces of prior art.”

Thus, from a legal perspective, the News Feed patent may not be as dreadful as initially thought, given the unlikelihood of Facebook successfully using it to take injunctive action against its competitors.  Given this revelation, though, it seems quite plausible that Facebook applied for the patent with no intention of ever using it as a catalyst for instigating aggressive litigation, but did so as a defensive effort to ward off its current and future competitors (by deterring other websites from using similar layouts).  By all means, Facebook is entitled to apply for a patent over its software (and if that patent is granted, then so be it), but given the weakness of this particular patent application in combination with Facebook’s increasingly-expansive business model, this move appears to be little more than an old fashioned land-grab.