Facebook, High School Renunions, Patent Infringement and Cable TV

My high school reunion is coming up. Thirty years. No, I won’t make it. I’ll be on vacation with my family. Not that I’d intentionally avoid it; it just worked out that way.

I actually enjoyed the last reunion. It was our 25th, and held at a classmate’s home. This wasn’t like a backyard pool party or a front yard Bar-B-Q. This classmate had purchased the former George C. Scott Estate in Bel Air. He’d done quite well for himself (starting a gay television network; I don’t have a TV, but I’m assuming we’re talking cable here). The fact that he had done quite well is particularly interesting to me because he was not one of the popular kids in high school. (Nor was I.) He was always a bit of an outsider (as – I am somewhat chagrinned to admit – was I).

Which brings me to my point (sort of): I always wonder what happened to the popular kids. Most of the successful ones I can think of were not the popular ones. Most of the popular ones are not now terribly successful. At the last reunion, I remember talking to one of them. He didn’t remember me, but was still more than happy to chat. He was living in a trailer; didn’t drive, but did ride a bike. He spent about 15 minutes recounting for me that time in high school when he saw a UFO. It was a little metallic ball, he told me, looking in at him through a window while he watched TV and his laundry tumbled dry in the next room.

Side note: Now you’ve got to remember the first Star Wars movie which – huh! – came out when this guy and I were in high school. Remember the scene where Luke learns to use the light saber? Remember the little metal ball flying around? I can’t say for certain, but I’m guessing there is a connection here which, I’m sorry to say, I didn’t point out to my old friend. Instead, I said “Huh, you know, I’m going to get another drink,” then hurried away. (I then met up with one of my closest friends – a psychologist -- and encouraged him to go talk to Mr. UFO.)

Back to my point: So, it seems to be that, if you’re popular in high school, you’re likely to be perceived as an underachiever at your high school reunions, at least when compared with the losers in high school who now own estates, or at least practice intellectual property law in Irvine.

Ahem. The point of all this lead up? To compare and contrast what happens when you’re a successful business. What happens? That’s easy: you get sued. Case in point: Facebook. Hugely popular (hey, if you’re reading this, feel free to send me a “friend” request on Facebook), Facebook has had its share of lawsuits of late. A couple of click fraud cases, and at least one patent infringement suit brought against it by Leader Technologies Inc.

The patent infringement case was the subject of an interesting recent ruling, whereby Facebook was ordered to provide the plaintiff with a complete copy of Facebook’s entire computer source code. What does this have to do with the suit itself? Leader Technologies sued alleging Facebook had deliberately infringed Leader’s U.S. Patent Number 7,139,761, titled “Dynamic association of electronically stored information with iterative workflow changes.” As if the title were not clear enough, the patent has to do with the management and storage of electronic information (something most websites – including this one – does). In that case, however, Leader claims that Facebook infringed its patent by marketing services “including but not limited to those related to the Facebook Web site.”

Like any good patent plaintiff, Leader is seeking preliminary and permanent injunctions, treble damages, attorneys' fees and costs. Uh-huh. We’ve all seen this drill before. In fact, I’m in a battle like this one now, except it involves mattresses and memory foam rather than “electronically stored information with interactive workflow changes.” Almost the same, but not quite.

In any event, in the Facebook case, Magistrate Judge Leonard P. Stark (DC Del) ruled that Facebook must provide Leader with a hierarchical map of its source code by the end of this week, and the entire source code by Friday, August 21st. Facebook is not happy. It claims Leader has no need for the entire source code, or at least has failed to articulate such a need.

The Court disagreed. Judge Stark ruled that a protective order would adequately address any of Facebook’s concerns, and founded his decision on the declaration of plaintiff’s expert witness, and a limited review of a portion of the code itself. Maybe so, but the ruling really seems over reaching to me. I’d bet anything that the Judge is not Facebook.

Leader, by the way, bills itself as a “pioneer in Web-based collaboration platforms.” I point this out only because of the further parallel to my case, which involves a bedding platform. And also because, just like a high school reunion – where the once popular are now not so (and those who weren’t now own gay television networks) – it’s all about creating “dynamic associations.”


Jonathan Pink litigates copyright, trademark and patent cases at Bryan Cave, LLP. He is resident in the Irvine office and can be reached at jonathan.pink@bryancave.com.