In case you haven’t heard, Yahoo! sued Facebook for infringement of ten of its patents. Electronic court records have yet to be updated, but Yahoo! helpfully provided a copy of the complaint to the media, which is embedded below. The complaint describes Yahoo! as an innovator and originator of technologies commonly in use by social networks and, allegedly, specifically in use by Facebook. The document’s authors–a trio of attorneys from Quinn Emanuel, including the esteemed Charles Verhoeven–provide a fantastic 19 page rant chock full of self-righteous statements about the importance of the various “innovations” claimed in Yahoo!’s patents and the extraordinary value Facebook recognized by “adopting Yahoo!’s patented social networking technology.” Lawyers, however, being the true masters of spin likely took a different view when faced with the allegation that some of their own value-creating products were built using technology pioneered by another innovator–Jay Walker.
News wires are likely already crammed with articles, op-eds and commentary about this latest lawsuit, and I am likely to read very few of them. Why? Because a patent infringement complaint, even one of this magnitude, is like the first round of a heavyweight fight, or the first quarter of a basketball game. It is boring and simply doesn’t matter. Any allegation can make its way into a federal complaint provided a lawyer can convince him-or-herself that there will be a way to prove it after discovery.
In the early rounds of a prize-fight, typically, very few real punches are thrown. Each fighter tries to get as much information from the opponent as possible, while giving as little away as possible. Good basketball games proceed the same way, with each coach running a variety of defenses and set plays to see how the other coach adjusts. The pleading stages–where the parties hurl accusations and defenses at one another without regard for actual fact–proceed in much the same way. Facebook may answer and raise some defenses. It may even file a motion trying to curtail a few of the claims hurled by Yahoo!, offering a few light body blows and jabs to try to score enough points to take a round or two–defensive wins usually come on the points, not by KO. Things really won’t get interesting until either the real battle begins (arguments over claim scope, expert reports and ultimately trial), or until Facebook does something unexpected.
Now that, on the other hand, could come sooner rather than later. A typical defendant sticks to defense, including making use of its own “defensive” patent portfolio to try to just neutralize the plaintiff’s case. After all, in the event of a tie, the defense wins. Facebook, however, is not a typical defendant. Fully aware that their “organic” patent portfolio poses no real threat to Yahoo!, Facebook has the means and the know-how to go forth and find something that is. The social networking giant, blessed with savvy in-house IP counsel, utilized this approach before, by counter-suing a patent owner using patents acquired from HP and Applied Materials. Further, while Yahoo! was early to the colonize Internet, they were not first to discover everything. Some portfolios that could rattle the self-righteousness might soon become available publicly (for example, AOL). Others are already available privately.
Somebody please wake me when it gets interesting.