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Are you infringing someone’s social media patent? Probably!

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One of the greatest frustrations that online entrepreneurs face each day is the cascade of new patent suits.  Social media as a sector has not escaped this fate, and rarely does a month go by without new lawsuits directed towards social media companies.  Some of these actions are brought by competitors, while others are brought by so-called “patent holding companies” — single purpose entities with one goal: licensing revenue. 

We will have much more to talk about regarding patents in the future, but to give you a flavor for the type of suit currently in favor, the following lawsuit was filed in the infamous U.S. District Court for the Eastern District of Texas last year:

STRAGENT, LLC and SEESAW
FOUNDATION,
Plaintiffs,

v.

CLASSMATES ONLINE, INC.,

CLASSMATES MEDIA CORPORATION,

UNITED ONLINE, INC., GANNETT CO.,

INC., LINDEN RESEARCH, INC.,

MEEBO, INC., MTV NETWORKS,

VIACOM INC., MYLIFE.COM, INC.,

MYSPACE, INC., NOVELL, INC.,

PLAXO, INC., and TWITTER, INC.,

Defendants.

The suit concerns U.S. Patent 6,665,722, entitled “Store and Forward Packet Radio System and Method.”  Are all of these social media companies infringing?  I have no idea — without an analysis of the patent and a comparison with the technology in use by the defendants it is impossible to say.  Is the patent valid?  Without an exhaustive search of the prior art, who knows.  The claims could be indefinite.  The claims could be obvious, or anticipated.  There may have been inequitable conduct, or strange assignment/inventorship issues.  There are a million questions and no superficial answers when looking at a complaint like this. 

In other words, when hit with a patent suit, even a sophisticated company on top of its technology may not know whether or not the suit has merit, or is frivolous just by reading it.  It must spend time, effort and (yes) money to even get to a point where it can think intelligently about its options.  For companies in this space, suits of this kind are becoming a cost of doing business.

But what about companies who have their own social networks, on their own networks — do they have the same patent risks?  Of course! Everyone who steps into the world of online commerce must deal with this threat, and develop a strategy for how they want to handle the risk going foward.   Someone (okay, me!) wrote an article about this issue a few years back, and while the patent holding company we discussed in the end decided to follow a different path, much of the analysis still holds true today.

In other words, patent risk is something that you must take into account while stepping into the land of social media.   While the plan may differ from company to company, you need to have one.  Now.