Saturday, February 9, 2013 by Agnieszka Zmuda
On Tuesday, February 5, Fish and Richardson, on behalf of Rembrandt Social Media LP, sued Facebook and AddThis for patent infringement. The complaint identifies the two patents in question as U.S. Patent No. 6,415,316 and No. 6,289,362. Both of these were issued over 10 years ago to a now deceased Dutch computer programmer, Joannes Jozef Everardus Van Der Meer. Rembrandt is now the owner of these patents. Facebook is accused to have infringed both patents, while AddThis is accused of infringing the ‘362 patent.
Facebook may wish they had an “Unlike” button for this story. Having already 20 patent lawsuits filed against them in just 2012, Facebook should not be too surprised at the news of another one. After all, the “it” thing now for patent-holding companies is to sue big Internet companies; even Apple, who has been criticized for trolling themselves, is not safe from other patent trolls. Criticism for patent trolling is not unfounded, as a recent study put the cost of these lawsuits at $29 billion, with little showing that any innovation was promoted by such actions.
However, unlike the many patent-holding companies that are suing hundreds of companies at once, Rembrandt Social Media is considered to be successful in its genre; it has only sued 16 companies so far, and hires the elite legal talent to represent them. Tom Melsheimer, Rembrandt’s lawyer, sees his client as different from the other patent-holding companies. According to him, “Rembrandt is pretty committed to the idea of finding inventors that have a compelling story to tell, and a patent that is important or core to some widely used technology.”
In this case, Rembrandt is actually working at the request of the family of the Dutch inventor who owns the two patents in question. The complaint states that Van Der Meer was a “pioneer in the development of user-friendly Web technologies.” Van Der Meer had formed a company in the Netherlands, now called “Aduna,” and developed the ideas for his patents there. He also registered the domain name “www.surfbook.com;” although it is unclear what this was to become as Van Der Meer died before he was able to finish his vision. Rembrandt, along with the family, believe that Van Der Meer’s two patents are the foundation of social media, deserving credit and compensation until 2021, when the exclusive rights to an “online diary” expire.
The first patent issued, the ‘316 patent, was for a “method and apparatus to create a ‘diary’ containing multimedia references to contents of Websites.” Melsheimer, in an interview, describes Van Der Meer’s invention as the beginning of what was going to become social networking. The second patent issued, the ‘362 patent, was for “a system enables a user to maintain a catalog of network objects of interest to the user.”
The resemblance of Facebook to Van Der Meer’s patents exists “both in terms of its functionality and technical implementation.” The complaint likens Facebook to the “personal webpage diary” that Van Der Meer invented years before in the ‘316 patent, as it allows ordinary users to chronologically organize their personal information and third-party content. Although the presentation of the information through Facebook is different, this format lets the users share “specific diary entries with a selected group of people, such as the user’s friends, through the use of user-settable privacy levels.” Another alleged infringement of the ‘316 patent involves Facebook’s business model of acquiring revenue through advertisements on the “personal diary pages,” which apparently is already claimed in the patent. As to the ‘362 patent, the use by Facebook of its “share” and “like” buttons to transfer content from third party websites onto the “user’s Facebook diary” is infringing on Van Der Meer’s previous invention. To strengthen all the infringement claims against Facebook, the lawsuit also points to the fact that Facebook cited one of Van Der Meer’s patents in one of their own that was issued in 2012.
Melsheimer is optimistic on Rembrandt’s chances of winning at trial, believing that “Rembrandt’s patents represent an important foundation of social media.” Even though to an ordinary user, there does not seem to be much relevance between Facebook and these patents, Melsheimer answers that by going to the backbone of patent law: “when someone else uses [something that has already been patented]—whether intentionally or unintentionally—they owe a reasonable royalty.” It is not relevant, in the legal sense, whether the original inventor actually succeeded in “commercializing the invention.”
Saturday, February 9, 2013 by Agnieszka Zmuda