Twitter Sued For Patent Infringement August 10, 2009
This week Twitter was sued for patent infringement. The gist of the law suit is that the plaintiff, TechRadium Inc. owns three patents on a system to have a message from one author be sent to many people, in different forms (including e-mail, SMS, and in plain text).
The Complaint
You can read the complaint here. The first thing I noticed is that there is arguably a claim to have the lawsuit dismissed. Under two recent precedents, Iqbal and Twombly, the Supreme Court has heightened the requirement for properly bringing a lawsuit. It used to be sufficient for the plaintiff to state that it owned the patents, and that the defendant infringed the patents. Under the recent cases, the plaintiff may have to be more specific about what activities are infringing the patent and how, when, and by whom they are being infringed.
Now, some very high profile lawyers (including Judge Posner, whom we’ve mentioned before) question the reach of these decisions, so it’s by no means open and shut. Also, the Federal Circuit, the court that hears all patent appeals, said that Twombly doesn’t apply to patent cases. But the validity of that ruling is in questions after the Supreme Court extended the Twombly standard to other cases in Iqbal.
The First Patent
TechRadium sued for infringement of three patents.
The first patent, number 7,130,389 (The ’389 Patent) claims “[a] digital notification and response system.” This system has two parts: (1) “an administrator interface for preparing and transmitting a message to at least one user contact device” and (2) “a dynamic information database for storing the message.”
Where this claim will succeed or fail is in the dynamic information database. The patent defines that database as comprising of: (1) user contact data, with contact device information and priority order for contacting them, (2) user selected grouping information, with at least one group associated with each user contact device, and a priority order for contact each user contact device within a group, and (3) response data that indicates the individual user has gotten the message, and whether there was insufficient contact data to reach the consumer.
On the face of it, it seems like this patent applies to Twitter. However, without knowing how Twitter’s e-mail and SMS notifications are performed, it’s hard to know for sure. There is the additional problem that Twitter doesn’t quite seem like what they patented. This patent is for a one to many system, not a many to many system. That may not have much bearing in the end.
There are also a series of claims that are dependent on the claim above. However, for the sake of brevity we won’t go into them.
The Second Patent
The last patent (7,519,165, or the ’165 Patent) covers sending messages simultaneously to several user groups. Otherwise it is very similar to the previous patents. As such it doesn’t require much more analysis.
This patent also has the “response” limitation, where the reponse indicates that the device got the message. To the best of my knowledge twitter doesn’t implement this feature, and may not infringe.
Conclusions
It’s hard to come to any firm conclusion one way or the other. But on their face, the patents are neither slam dunks, nor clearly inapplicable. In addition to the fact that there are strong arguments that the patents don’t cover Twitter, there are a host of other defenses: patent invalidity, and inequitable conduct (lying or concealing information from the Patent Office) being two of the most common.
We will be watching this story closely.
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IMHO, the second part of the first patent is obviously based on prior art. There have been “telephone trees” for almost as long as there have been telephones and prior to that there ride, walk or run to the x closest neighbors, bang a pot, ring a bell, fire a shot and similar methods of circulating information quickly when needed. I can’t see how using a digitial means of communication changes the centuries of prior use.
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