Over at TechCrunch:
Earlier this week, Facebook was granted a broad patent on mobile location-based social networks. It seems to cover everything from members of a social network sharing their location with each other through their mobile phones to manual checkins. In other words, it sounds like Facebook just patented Foursquare’s main product.
The application was submitted in February, 2007, well before Foursquare was even founded. But it forgot to mention one thing. In the long list of more than 50 other previous patents it cites as prior art, it never mentions perhaps the most obvious patent of all: The Dodgeball patent. The Dodgeball patent lists as its inventors Dennis Crowley and Alex Rainert , the co-founders of Dodgeball, an early mobile social network acquired by Google in 2005 and shut down in 2007. Crowley, of course, went on to found Foursquare, where he is currently the CEO (Rainert also now works at Foursquare as chief product officer).
As Erick Schonfeld at TechCrunch notes, "I am not a patent lawyer, but these two patents sound extremely similar."
Neither patent should have been granted the patent in the first place, since the patents teach nothing more than the intangible and abstract idea of broadcasting the location of an individual to a network and then back out to users. They claim no new and useful "processes, machines, manufactures, [or] compositions of matter," as required by the Patent Act. Perhaps worse, they teach literally nothing about how to make "location-based social software for mobile devices" — neither patent includes any useful software — and instead vaguely claim the general idea of location-based social software for mobile devices, backed up by screenshots and hilariously useless diagrams showing, quite literally, cell phones shooting lightning bolts at radio towers. Perhaps most useless are the flow charts, which might have come straight from the set of Office Space.
Plenty of smart tech folks have called for the abolishment of software patents, like here, here, and here, and the Dodgeball and Facebook patents are a good example of why: all you have to do is dream up some novel configuration of abstract concepts, insert the word "electronic" or "computer" or "server" into the claims, and — voilà — you have yourself a patent with which you can threaten everyone who later comes along and invests the necessary resources and time into making the thing actually work.
(For those of you who want citations for the above, consider In re Bilski, 130 S. Ct. 3218, 3225 (2010), discussing the subject matters that can be patented, and Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010), assessing "whether the disclosure of the application relied upon reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date" and whether the patent effectively teaches others how to make the same invention.)
That said, the first patent was granted to Dodgeball, which raises the question: why wasn’t it cited by Facebook to the United States Patent and Trademark Office?
As Facebook surely knows, Patent Rule 56 imposes a duty of good faith and candor upon every applicant for patent:
PTO Rule 56, codified at 37 C.F.R. § 1.56, imposes on all individuals associated with the filing and prosecution of a patent application a duty of candor and good faith in dealing with the PTO during the period of examination of a patent application. 37 C.F.R. § 1.56(a). The duty of candor includes a duty to disclose to the PTO all information known to each individual that is material to the issue of patentability. Id. This information includes prior sale or public use of the invention one year or more before the filing date of the application. See 37 C.F.R. § 1.56(b). Thus, to have a duty to disclose information to the PTO, an individual must (1) be associated with the filing and prosecution of a patent application such that he owes a duty of candor to the PTO, and (2) know that the information is question is material. Id. § 1.56(a).
Avid Identification Sys. v. Crystal Imp. Corp., 603 F.3d 967, 972-973 (Fed. Cir. 2010).
It’s unlikely that Facebook was totally unaware of Dodgeball throughout the patenting process, and unlikely that they were unaware Dodgeball had filed for, and obtained, one or more patents relating to their central concept, so they’ve got some explaining to do if they ever attempt to enforce the patent, since it may be rendered unenforceable by inequitable conduct. See Avid, supra.
But it raises a bigger problem with our current patent system. Plenty of people have complained about how understaffed and underfunded the USPTO is, such that patent examiners typically have only hours, rather than days or weeks, to evaluate the propriety of a given patent application, rendering them — and thus all of us — entirely dependent upon the researching abilities, not to mention good faith, of the patent applicant, who of course has an incentive (and a confirmation bias) towards ignoring prior art.
One of the biggest problems caused by this situation is that applicants with genuinely novel and useful inventions often have to wait months or years for patent protection, while well-funded applicants with trivial, abstract, and otherwise invalid applications can overwhelm the patent office with filings, requests that the application be made "special," and downright bad faith and other inequitable conduct.
Which brings us back around to Facebook, Google and Foursquare. I doubt Google will sue Facebook or vice versa; the stakes are too high for either of them, and both know the other has essentially unlimited resources to litigate the matter up and down the federal courts.
But what about Foursquare, one of the leaders in the location-based social media market? Why not sue them? After all, that’s the point of patents: to obtain a legitimate monopoly on particular "processes, machines, manufactures, and compositions of matter" in exchange for disclosing the means of their creation to the public.
Perhaps worse, why not sue the next Foursquare before it gets big enough to fight back? Once you have such a monopoly, why not intimidate upstart competitors into staying out of the market entirely by way of invalid patents that never should’ve been granted in the first place?