Facebook, a website whose primary platform is based around the notion of sharing, recently received an exclusive on its focal “News Feed” layout, which could very well hinder many other social networking sites from sharing information in a similar fashion.  News of this patent award has resulted in a mild internet among commentators concerned with Facebook’s ever-increasing domination of social networking websites, and their newfound potential to unfairly attack competing websites with infringement claims. 

When put under a legal microscope, though, it becomes apparent that the strength of this patent might be refuted on the basis of subject-matter patentability and a lack of any true inventive step.  Yet, even if the protection afforded to the News Feed patent proves to be minimal, Facebook’s acquisition of this exclusive right is reflective of how, in a given industry, the patent system may be manipulated to serve defensive business tactics instead of fostering innovation and rewarding ingenuity (the actual rationales behind the patent system).

The patent, applied for in 2006 and granted on February 23rd, 2010, covers the website’s method for automatically presenting up-to-date information about users’ activity within the Facebook community; in fact, the patent applies only to “implicit actions” (for example, publishing a notice that John Doe is now friends with Jane Doe) and so other user-generated-content websites who employ similar streaming displays (such as Reddit) will likely be unaffected by the patent, since their displays typically provide links to outside sources and other websites; meanwhile, Twitter (a networking website which is, basically, one large News Feed) and other social networking sites (MySpace, Buzz) might feel threatened by Facebook’s patent, should the circumstance arise whereby infringement litigation is pursued.

If Facebook were to take its competitors to court for using similar “News Feeds,” the first line of defense would be to critique the validity and strength of the patent itself, whereupon two arguments immediately spring to mind.  The first approach would be to attack the strength of the patent on the grounds of its subject matter, for traditionally any method, especially a method for displaying information, would be given minimal legal protection (if any at all).  On the other hand, the patenting of any software code (in turn, the patenting of any mathematical method for computer translation) is still a relatively new (and very gray) area, and so it can be assumed that the novelty of this patent type might be sufficient enough to overcome its vague subject matter.  Moving on then, a second approach in defending against an infringement claim by Facebook would be to attack the patent on the grounds of obviousness.

Certainly, the News Feed patent passes the fundamental criteria of novelty (assuming the code behind it was original) and utility (the News Feed is arguably one of the most popular features of Facebook, although interestingly enough it was vehemently opposed by users when it was first introduced), however it can still be argued that the patent lacks an inventive step (or rather, is obvious).  Indeed, the application is so simple that many software programmers might find the News Feed to be too simple of a jump from previous information-display methods so as to merit any strong legal protection.  Apparently, prior to Facebook’s patent application there were various mechanisms on the internet used for automatically displaying user content, only they were rather disorganized and random as compared to the News Feed which is streamlined and orderly; taking this into account, could it really be said that the News Feed was a stroke of inventive genius?  According to, the answer seems obvious, as he astutely notes that: “Invention cannot and should not reside in being the first to implement something by merely pulling together known and readily understandable pieces of prior art.”

Thus, from a legal perspective, the News Feed patent may not be as dreadful as initially thought, given the unlikelihood of Facebook successfully using it to take injunctive action against its competitors.  Given this revelation, though, it seems quite plausible that Facebook applied for the patent with no intention of ever using it as a catalyst for instigating aggressive litigation, but did so as a defensive effort to ward off its current and future competitors (by deterring other websites from using similar layouts).  By all means, Facebook is entitled to apply for a patent over its software (and if that patent is granted, then so be it), but given the weakness of this particular patent application in combination with Facebook’s increasingly-expansive business model, this move appears to be little more than an old fashioned land-grab.

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The public domain in trademarks is composed of images, words, and phrases that cannot reasonably be granted exclusive protection because they are either generically descriptive, or because they are part of some shared cultural history.  A stranger to IP would likely assume that marks associated with the Olympics would fall under the latter category, considering that the international event has been around for centuries and is premised on sportsmanship, community, and good will.  In Canada, though, Olympic marks actually receive an unprecedented amount of legal protection, attaining a level of exclusivity that is beyond that of “official marks” status.  With the legislation of the (OPMA) in 2007, Olympic-related marks (such as the rings or the Olympic flame) are essentially as far away from the public domain as possible.  While there are indeed positive benefits provided to official sponsors, the OPMA has negative consequences that run contrary to the inclusive Olympic “spirit” and to the economic incentives behind hosting the Games.

The reason that the Olympics have such tremendous marketing potential (and thus have been made exclusive through the unique legislation that is the OPMA) is because they appeal to individuals’ personal ambitions and, more importantly, to a shared sense of nationalism and pride.  There seems to be something inherently undignified about monopolizing the profit-making potential of these sentiments.  On the other hand, the gradual commercialization of sport places as much (if not more) emphasis on business competition as it does on the actual athletic competition, and so it makes perfect sense that the International Olympic Committee (and its Canadian trustees) is stringently protecting this marketing goldmine.

The Olympics have rightfully enjoyed official marks status in Canada since 1983, but evidently this amount of protection was not sufficient to properly defend authorized use of Olympic marks in our overly commoditized society.  The International Olympic Committee (the ultimate owner of all things “Olympic”) has long recognized the marketing, sponsorship, and investment potential behind the Olympics, and as such they made the OPMA a condition precedent to Vancouver’s hosting of the Games; not surprisingly, similar legislation has already been passed in London.
The rationale behind the advanced protection is credited to the abundance of possible trademark violations that are likely to occur in a very small window of time (between now and 2010), and to curtail ambush marketing.  The OPMA has therefore given the Vancouver Organizing Committee (VANOC) absolute authority and discretion in prohibiting use of the Olympic marks.  Most significantly, because of the impending Olympic deadline, VANOC has been awarded a procedural pass, allowing them to issue injunctions without going through the traditional legal channels, offering those accused of violation with no opportunity to seek judicial review nor any mechanism to challenge the validity of the OPMA’s extreme limitations.

Ambush marketing is a practice that commonly occurs with major sporting events, whereby a business intentionally deceives consumers into thinking that they are official sponsors of the event and, in doing so, undermines their competitors who hold official (expensive) sponsorship titles.  For example, in 2006 Lufthansa led the public to believe it was a sponsor of the Fifa World Cup by painting a soccer ball design on its airplane, even though it had no official connection to the games.  Certainly, the OPMA’s expeditious injunction process will help to curtail this kind of subversive and unfair competition, but it will also greatly restrain small businesses that have no deceptive intentions and are merely trying to increase revenue by associating with a major current event.

Hosting the Olympics is an important opportunity for Canada to boost its economy through increased consumerism, yet the OPMA reserves profits only for those who can afford to pay for sponsorship titles (many of whom are multinational corporations not based in Canada).  Meanwhile, Canadian businesses that cannot afford this title are required to restrain the management of their enterprises by ignoring the presence of the Olympics.  Teresa Scassa (2008, “Faster, Higher, Stronger”) points out that these “super trademarks” not only restrict the ability of businesses to market themselves (which is arguably an infringement on the freedom of commercial expression), but also places restrictions on our natural instinct to identify with and embrace the massive spectacle that is taking place in our own backyard.

Although some level of trademark protection for the Olympics is necessary, the extent to which it has been legislated in Canada is concerning.  While ambush marketing could certainly be characterized as unsportsmanlike conduct, so too could not letting anyone else play.

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