Jury Dumps Patent Used To Sue Facebook

from the took-long-enough dept

Thu, Jul 29th 2010 5:28pm — Mike Masnick

Nearly two years ago, we wrote about a company, called Leader Technologies with an incredibly broad patent (7,139,761) that covered associating a piece of data with multiple categories, that was suing Facebook for infringement. Our usual group of patent system defenders rushed to the comments to quickly declare that I was an idiot for daring to question this patent. The case took a weird turn when the court actually ordered Facebook to hand over its source code. We were confused as to how this made sense. Since the lawsuit was about patents, not copyright, the specific source code shouldn't really matter.

Either way, it looks like the jury in the case seemed to agree with me about the quality of the patent. The jury has declared the patent invalid. Clearly, the only explanation is that the jury was also made up of idiots. Next time, Leader Technologies should file the lawsuit in East Texas where they know how to make juries, rather than Delaware.

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Filed Under: database, patents
Companies: facebook, leader technologies

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Anonymous Coward, 29 Jul 2010 @ 5:44pm

OR just not file stupid patent lawsuits
and make overly broad moron patents, poster sounds pro software patents and they are impeding innovation anyhow.
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Anonymous Coward, 29 Jul 2010 @ 5:52pm

I presume the Jury themselves had facebook an didn't want to lose their facebook accounts on account of facebook going out of business. Lets hope anyone they appeal to also feel the same way.
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Nick Mc, 29 Jul 2010 @ 6:37pm

Darn It
Does this mean that we now have to wait for this guy that says he owns 84% of Facebook for the evil empire to die?
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AC, 29 Jul 2010 @ 6:53pm

They voted this way because they didn't need anything threatening their farmville addiction. But I love the ruling.
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Richard C, 29 Jul 2010 @ 8:01pm

Re: OR just not file stupid patent lawsuits
They're purpose is to impede innovation, in such a way as to ensure that the Microsofts, Dells, Apples etc. of the world wont be usurped by some brilliant disruptive technology. They promise share holders a stake in the entire industry and are really, little more than a thinly veiled insurance policy.
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Anonymous Coward, 29 Jul 2010 @ 8:14pm

Re: Re: OR just not file stupid patent lawsuits
Do you really believe that?
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Anonymous Coward, 29 Jul 2010 @ 8:15pm

Even idiots get lucky sometimes
/s
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Roni Evron, 29 Jul 2010 @ 8:17pm

Surprised and disappointed
This post really misrepresents the verdict. The jury found that Facebook did infringe on all claims. The jury also rejected all of the prior art evidence presented by Facebook.
The patent was invalidated due to commercial activity by Leader, which has nothing to do with the quality of the patent.

I expect better reporting from you.
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Anonymous Coward, 29 Jul 2010 @ 8:18pm

I am not at all sure that self-congratulations are in order. Two years ago you looked at a patent, waved your arms that the patent sure seemed obvious to you, and then concluded with an all too predictable "dig" at the patent system.

Contrary to what you state, no one rushed out at that time and insinuated you were an "idiot". You were, however, criticized for declaring the claimed invention "obvious" without having invested any effort to secure any facts pertinent to your conclusion.

If anything, the jury verdict here (the case is still with the judge for further proceedings) should give you pause for concern and thoughtful reflection the next time you decide to go on an "its obvious" binge.

Not having been in the courtroom when the jury's verdict was read, I can only rely on news accounts from services such as Reuters, AP, etc. Apparently, the jury rendered a split verdict.

In the first part of its verdict it held that the claimed invention was not obvious, and that the defendant infringed all of the patent's claims.

In the second part of its verdict it held that certain commercial activities by the plaintiff prior to filing the initial application rendered the patent invalid. Thus, the proclamation made here two years ago that "its obvious" did not find a receptive audience with the jury.

BTW, the reference in the news reports to "commercial activities" suggests to me that the plaintiff likely had the claimed invention in public use or on sale more than one year before the initial application was filed, creating what is referred to as a "statutory bar" under 35 UC 102. Even if an invention is new, useful, and non-obvious, the patent law nevertheless does contain other provisions that can defeat any subsequently issued patent should it later be asserted against a third party. This appears to be what the jury decided has happened here.
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Anonymous Coward, 29 Jul 2010 @ 8:35pm

lol, it must be friday
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Lawrence D'Oliveiro, 29 Jul 2010 @ 8:43pm

Are You The Same Cowardly Anonymous?
Contrary to what you state, no one rushed out at that time and insinuated you were an "idiot".

Well, you have to admit angry dude’s usual verbal diarrhoea did indeed call his competence into question:

Mikey's area of expertise is brainwashing... He knows nothing about real economy and even less about tech

AD, where are you now, you coward?
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Anonymous Coward, 29 Jul 2010 @ 8:46pm

Re:
The jury is probably tech illiterate and wouldn't know an IP address from a MAC address.
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Anonymous Coward, 29 Jul 2010 @ 8:53pm

Lawrence D'Oliveiro, you are a coward and a fucking piece of shit. Dont call out someone who is not here.
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Anonymous Coward, 29 Jul 2010 @ 8:53pm

Re: Are You The Same Cowardly Anonymous?
Forgot about AD, but then again he always slams MM, TD, and most commenters using his own "unique" style.
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Anonymous Coward, 29 Jul 2010 @ 9:08pm

Re:
and who are you?
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Anonymous Coward, 29 Jul 2010 @ 10:13pm

Re: Re: OR just not file stupid patent lawsuits
I hope that was sarcasm otherwise I just have to say wow, some people really are in their own world.
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JT, 29 Jul 2010 @ 10:19pm

Re:
LOL Says the AC!!!!
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Frank Adams, 29 Jul 2010 @ 10:43pm

I never thought that this would be a big issue since Facebook has been there for years already and this one just went recently. I think this is a non-sense issue and the jury is asking for the source code when the issue is the patent. That really doesn't make any sense.
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Anonymous Coward, 29 Jul 2010 @ 11:13pm

Re:
Disclaimer: IANAL.

BTW, the reference in the news reports to "commercial activities" suggests to me that the plaintiff likely had the claimed invention in public use or on sale more than one year before the initial application was filed, creating what is referred to as a "statutory bar" under 35 UC 102.

This may be correct; an earlier opinion issued in this case indicates that Facebook was alleging that:

"...the McKibben deposition establishes that more than one year prior to the filing of U.S. Patent Application No. 101732,744 (the "'744 Application), Leader offered to sell the Leader2Leader product to at least three third parties."

(It seems to me that the '744 application became the '761 patent, which is at issue here - although this isn't fully clear from the ruling).

~ ~ ~ ~

The case took a weird turn when the court actually ordered Facebook to hand over its source code. We were confused as to how this made sense. Since the lawsuit was about patents, not copyright, the specific source code shouldn't really matter.

This isn't really that unusual, and I don't understand why it would be confusing. Compiled software is like a machine encased in a black box: you can observe how it responds to particular inputs by generating certain outputs, but you cannot always deduce from this the mechanism. The source code discloses the mechanism: the inner-workings of the machine.

Saying that you necessarily don't need source code to determine software patent infringement is like saying that you necessarily don't need to open the hood of a car to determine automotive patent infringement, even if the patent covers some aspect of the engine or the carburetor.

Patents are supposed to disclose enough about an invention that one of ordinary skill in the art could practice it. That is, if I patent a mechanism that is implementable in software, I have to explain how someone like a programmer could implement it. I cannot always explain that in sufficient detail by only talking about inputs and outputs. Often I have to disclose the specific steps. Consider a claim from the RSA patent, a classic algorithm patent:

. A cryptographic communications system comprising:

A. a communications channel,
B. an encoding means coupled to said channel and adapted for transforming a transmit message word signal M to a ciphertext word signal C and for transmitting C on said channel,

where M corresponds to a number representative of a message and

0.ltoreq.M.ltoreq.n-1

where n is a composite number of the form

n=p.multidot.q
where p and q are prime numbers, and
where C corresponds to a number representative of an enciphered form of said message and corresponds to
C.ident.M.sup.e (mod n)
where e is a number relatively prime to 1 cm(p-1,q-1), and
C. a decoding means coupled to said channel and adapted for receiving C from said channel and for transforming C to a receive message word signal M'
where M' corresponds to a number representative of a deciphered form of C and corresponds to
M'.ident.C.sup.d (mod n)
where d is a multiplicative inverse of e(mod(1 cm((p-1),(q-1)))).

Given just a binary black box, it is difficult or impossible to tell whether this is what is actually going on. If the software takes the exact same inputs and produces the exact same outputs, but through some novel mechanism, then that software is not necessarily covered by the patent unless, for example, it is found equivalent under the Doctrine of Equivalents.

The source code is sometimes really necessary to understand whether the mechanism of the software is the same as, or equivalent to, the mechanism claimed in the patent. When this is the case the court can order the software disclosed under very, very restrictive conditions to make this determination.

Finding infringement can be a technical and subtle process: you must show that each and every element of the claim is found in the infringing product. You cannot, as many patent detractors fantasize, just take a sidelong glance at the product and the patent and go "yep, infringes!" or "nope, doesn't infringe!"
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Anonymous Coward, 29 Jul 2010 @ 11:23pm

Re:
I never thought that this would be a big issue since Facebook has been there for years already and this one just went recently.

Facebook launched in 2004, the patent filing seems to have occurred in 2003 (there are a whole lot of different little things like 'continuation patents' that can affect when patent protection begins, so you can't always just look at the date and make a determination, but generally the filing date is a good assumption).

Even if Facebook's launch predated the patent, maybe they did not start using the patented technology until after their launch. You'd have to look at the details of the case.

I think this is a non-sense issue and the jury is asking for the source code when the issue is the patent. That really doesn't make any sense.

I'm sorry, where did you get the impression that it was the jury that was asking for the source code? It's much more likely that the experts in the case were the ones examining the source code to make a judgment and render expert testimony about whether Facebook's software does or does not infringe the patent. It's possible that the jury has seen little or none of the code itself - they are likely using expert testimony as evidence of what the software does or does not do.
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Anonymous Coward, 29 Jul 2010 @ 11:47pm

Our usual group of patent system defenders rushed to the comments to quickly declare that I was an idiot for daring to question this patent.

[citation needed]

Seriously, citation needed. Please identify the "group of patent system defenders" who I assume are more than three people who defend patents regularly. Please then show where this group, or some majority of it, declared you were an idiot. Please find where the word 'idiot' was used in this context explicitly.

Bonus points for demonstrating that they are some kind of organized group. Is it OK for your detractors to now base their arguments on what "bloggers" are saying? Bloggers are a group that, right? It's even a group of which you're a member!

What's most amusing is that this accusation is coming from someone who gets defensive in the extreme whenever he feels that he's been accused of saying something he didn't say explicitly (even if it was strongly implied). From the Masnick file:

"I have never called anyone an idiot. I have called an idea they have put forth idiotic, after said idea was debunked and then they still stand by it without providing any data or evidence to back it up. And I only do so rarely."

"Again, McBeese, I never called you a moron. But, once again, you do seem to play fast and loose with both logic and the facts."

"I don't believe I've ever refereed to anyone or corporation as being "evil" and don't think anyone really think anyone we talk about is stupid or evil. Misguided and uninformed, perhaps. But that's different."

When else have we seen somebody get all the facts wrong and make confusing accusations against a large and nebulous group of people? Oh, right, just recently with Paul Williams from ASCAP. But I guess this sort of thing is only not OK when HE does it.
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Anonymous Coward, 30 Jul 2010 @ 2:19am

Re: Re: (competence of the jury)
The jury is probably tech illiterate and wouldn't know an IP address from a MAC address.
Then why do they allow jury trial in the US for such complex cases anyway? As opposed to a three-judge panel that is in some countries even specialised in patent law.
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Hephaestus (profile), 30 Jul 2010 @ 6:35am

Re:
"I presume the Jury themselves had facebook an didn't want to lose their facebook accounts on account of facebook going out of business."

-sarc- Yeah we would all miss farmville -/sarc-
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Hephaestus (profile), 30 Jul 2010 @ 6:37am

Re: Re: Re: (competence of the jury)
"MAC address" is that an apple thing? ... ;)
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Anonymous Coward, 30 Jul 2010 @ 6:59am

This is the basic idea behind Relational Database Management. This has been around for at least 50 years if not more. This was Database 101 in school. How one can access many. Basic stuff. This justifies my rant about the Patent Office being a useless entity. They should never have allowed this. Why would I pay the government to allow me to sue or be sued by someone? How is that protection? The Patent and the Copyright Offices offer no protection until you get in court and then it doesn't always work. If you pay the government for protection (man that sounds like the mob) then there should never be any question because the government investigated and cleared the fact that your Patent or Copyright is genuine. Why pay them if they don't protect you? What a waste.
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Anonymous Coward, 30 Jul 2010 @ 7:24am

Re: Surprised and disappointed
[citation needed]
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abc gum, 30 Jul 2010 @ 7:34am

Re: Re:
"The jury is probably tech illiterate and wouldn't know an IP address from a MAC address."

Assuming your comment was not sarcasm .... it implys you do not understand the jury selection process in the US. This process usually removes any experts from the jury pool. For example, laywers are usually removed from any case and doctors are removed from cases involving the medical field, etc. So, yeah, you are probably correct but it was done intentionally. I still do not understand how this provides a better trial, it borders upon jury rigging.
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abc gum, 30 Jul 2010 @ 7:40am

Re:
"This is the basic idea behind Relational Database Management. This has been around for at least 50 years if not more. This was Database 101 in school."

The fact that it is obvious and been in use for decades hasn't stopped them in the past and probably will not stop them in the future. This will continue to be a major problem for business in the US.
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Alimas (profile), 30 Jul 2010 @ 7:43am

Re: Re: OR just not file stupid patent lawsuits
You're exactly right! That's not what they were meant for, but that's what major companies do. It's just good business.
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nasch (profile), 30 Jul 2010 @ 11:50am

Re:
Actually let's hope they rule based on the law rather than their personal preferences regarding Facebook.
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harddavid, 30 Jul 2010 @ 11:53am

Re: Re: Too mired
@Anonymous Coward: You're not seeing the wood for the trees - I disagree with your ending statement that one should not just take a "sidelong glance." While the decision needs to be thoughtful, it needs to resolve the fundamental notion, and not get caught up in the details.
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Anonymous Coward, 30 Jul 2010 @ 4:39pm

Re: Re: Re: Too mired
And the "fundamental notion" is?
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Anonymous Coward, 30 Jul 2010 @ 9:11pm

Re: Re: Re: OR just not file stupid patent lawsuits
I do.
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Anonymous Coward, 30 Jul 2010 @ 9:14pm

Re: Re: Re: Re: OR just not file stupid patent lawsuits
(well, not necessarily against the Dell's and Microsoft's, etc..., maybe to some extent, but I do believe patents are really meant to hinder innovation. The Pharma industry used to be innovative before patents were that prominent, now it's probably the least innovative industry out there thanks to the extensive control patents have over the industry. Agriculture seems to face the same problem. I really see little indicating patents do anything to help advancement).
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Anonymous Coward, 30 Jul 2010 @ 9:14pm

Re: Re: Re: Re: Re: OR just not file stupid patent lawsuits
(not necessarily for the dells and Microsoft, etc... *)
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Anonymous Coward, 31 Jul 2010 @ 4:59pm

Re: Re: Re: OR just not file stupid patent lawsuits
The notion that Facebook first read this patent and then developed Facebook based on this patent is dubious at best.

The argument that Facebook in any way benefited from this patent or the patent holder is no more valid than the argument that steam engine competitors somehow benefited from the patents that enabled others to sue them for infringement. Patents are supposed to promote the progress and I'm just not seeing how these patents did anything to promote the progress of anything but frivolous lawsuits.
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Ronald J Riley (profile), 1 Aug 2010 @ 6:25pm

Too Soon To Crow
"the jury in the case seemed to agree with me" The jury probably does not know you exist, much less agree with you.

Most certainly, Delaware is well known for it's bias in favor of big corporate interests so if Mike was smart he would not crow until after the appeals process is complete.

Patents are a great equalizer which allows inventive upstart start up companies to take on and win against big companies, something which it appears a number of your clients have learned the hard way.

Ronald J. Riley,

Speaking only on my own behalf.
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.
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Anonymous Coward, 1 Aug 2010 @ 8:38pm

Re: Too Soon To Crow
Actually, the jury did not "agree with me". It appears that on the substantive merits of the invention the jury held in favor of the patentee. Where the patentee came up short appears to be that evidence was presented at trial that led the jury to believe that a statutory bar existed, an issue far removed from "obviousness".
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suck it, 2 Aug 2010 @ 2:53am

Yes because many small companies have exactly the kind of money you need to fight say, Microsoft.

Much less mom& pop basement inventors. Good luck winning something without going broke first. Have fun with patents.
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Jeff Bridgeport, 29 Jan 2020 @ 6:59pm

Re: Re: Re: Re: OR just not file stupid patent lawsuits
You should see how this played out over the last 10 years. The company founder has gone full tin-foil-hat crazy, claiming that the CIA, Obama, Hillary, and the entire tech world conspired to steal his patent and rule the planet with it. His blog is an unbelievable journey into the mind of a madman obsessed with the idea that he invented something that rivals the light bulb. You won't believe how deep down the rabbit hole he has gone after losing this case.

americans4innovation.blogspot.com
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