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Today's freebie WSJ says that Friendster is claiming patent protection for some social networking functionality, and is making litigation noises about such later- (and more successful) comers as FaceBook and MySpace:
The patent Friendster was granted last month covers "a method and apparatus for calculating, displaying and acting upon relationships in a social network" -- in short, acting as a hub to connect Web users with common acquaintances. "The attorneys we've talked to say the patent is very strong," Mr. Lindstrom says.
The company says it also received a "notice of allowance" from the U.S. Patent and Trademark Office this week indicating that the company is likely to soon be granted a patent that covers technology that lets users upload their own content, like photos, onto a friend's page. As is usually the case in such matters, the outcome should depend on what was patented. No patent should be granted if it is of the "wouldn't if be nice if . . . " ilk -- as in "let's use the Internet to let friends connect with each other," or "let's give friends access to each other's web pages." On the other hand, if actually achieving these goals presents knotty problems, then a creator should be able to get a patent on her/his unique solution, but not one that covers all solutions.
This is not a new problem, nor is it unique to the Internet. It was presented, and answered, in the 19th Century. To repeat a blog entry from two years ago:
Yesterday's wisdom from Justice Bradley should be supplemented with another quotation:
"Like almost all other inventions, that of double brakes came when, in the progress of mechanical improvement, it was needed; and being sought by many minds, it is not wonderful that it was developed in different and independent forms, all original, and yet all bearing a somewhat general resemblance to each other. In such cases, if one inventor precedes all the rest, and strikes out something which includes and underlies all they produce, he acquires a monopoly, and subjects them to tribute. But if the advance towards the thing desired is gradual, and proceeds step by step, so that no one can claim the complete whole, then each is entitled only to the specific form of the device which he produces, and every other inventor is entitled to his own specific form, so long as it differs from those of his competitors, and does not include theirs."
-- Railway Co. v. Sayles, 97 U.S. 554, 556-57 (1878)(the Tanner Brake case)(Again, this is not a case found on the Internet, except via the subscription services. Findlaw goes back only to 150 U.S.)
The "specific form" language is crucial. A problem with many business method patents is that they embrace not just the specific form or mechanism but the goal that is sought. Yet the desirability of that goal may be obvious, even if the method for getting there is not. Thus Tanner could not patent the idea of double brakes that applied pressure to both sets of wheels on a railroad car undertruck at the same time; everyone knew that was a desirable goal. He could patent only his solution. Similarly, Amazon should not be able to patent the idea of one-click, which is obviously a worthy goal, but only its specific implementation mechanism.
posted by James DeLong @ 8:46 AM | Patents
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