Targeting Twitter for patent infringement
Twitter is known as the world’s largest social networking and microblogging site. Most people I know use Twitter to obtain real-time information on almost anything or for breaking news. Others use it as a way to peak into the minds of people they know or their favorite celebrities. Although the Twitter platform allows for some interaction among its members, like commenting on a “tweet,” it appears to be more of an information hub that includes both famous and not famous people.
However, Virginia-based company VS Technologies would like to view Twitter as the invention it thought of first but has yet to develop. In June 2002, Dinesh Agarwal, a patent attorney, obtained a patent (no. 6,408,309) for the “method and system for creating an interactive virtual community of famous people,” later assigned to VS Technologies. More specifically, the ’309 patent describes its invention as an:
interactive virtual community of famous people, or those people who wish to attain the status of a famous person, in a field of endeavor . . . The virtual community of the present invention is unique in that the members of the virtual community can update, modify or revise their individual profile, and interact with other members of the virtual community, as well as the non-members of the virtual community.
The patent goes on to diagram the layout of the virtual community, in basically a flow chart of boxes representing a different field of endeavor. It also has a diagram of a sample profile with examples of the types of information that would be included. VS Technologies believes that its patent will allow people to “learn from experiences of the famous people, and to be able to interact with them for educational purposes or to satisfy their own curiosity.”
Twitter definitely has strong rebuttals to VS Technologies. VS Technologies has yet actually to develop its patented invention and shows no immediate plans to do so. Its actions appear to fall under that of a patent troll, commonly defined as one who asserts patents (usually acquired ones) but makes no product. In this case, VS Technologies was assigned the patent from Agarwal shortly after it was incorporated. In addition, VS Technologies and Agarwal share the same address, indicating the LLC was formed for the purpose of the lawsuit. Patent trolls count on the fact that the cost of litigation is a bigger burden on their accused infringers. Also trolls have the ability to choose their preferred forum, one more friendly to their case. This case was brought in the Eastern District of Virginia, where VS Technologies is incorporated.
Another weakness for VS Technologies is the validity of the patent itself. The patent is tenuous in the categories of being non-obvious or novel and leads me to wonder why the U.S. Patent and Trademark office even granted the patent. The patent is also very broad. It is possible that a patent in a given area could include a broad claim covering a general inventive concept because, at that particular time, there was nothing similar in the prior art. However, a more specific implementation of that concept might be patentable if it is not disclosed in the earlier patent.
I believe Twitter distinguishes itself because it is simply not a profile-based platform. Its main purpose is allowing its members to “tweet” up to 140 characters in length. Its members can freely tweet about anything, and the structure is very free-form. In addition, a Twitter profile may show only the user’s handle, which members are following him or her and who the user him- or herself is following. The information on a profile page of the ’309 patent has three categories: personal information, field of endeavor information and unique personal attributes. Each category has several subcategories that are very specific, for example, field; position; awards; publications; past, present and future goals; or particular moments of the user’s life. The patented idea has a very structured platform and does not specify how members actually interact.
VS Technologies claims it has been damaged by Twitter’s infringement and asks for damages that would adequately compensate it but no less than a reasonable royalty fee. A royalty fee is usually the fee a licensee would pay to the patent holder for the right to use the patented product. There is no patented product here. I believe it would be tough to prove damages for any amount.
Although Twitter was denied its motion to transfer venue in June, chances are this case does not make it to trial. Twitter has already been sued for patent infringement three times and settled two of those suits. With possible patent trolling and the weakness of the patent itself, I think the case has little merit and Twitter should prevail.