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Is Facebook a patent troll?

Zachary Silbersher

Facebook ($FB) recently sued Blackberry ($BB) in the Northern District of California.  The move appears to be the latest salvo in the patent war heating up between the companies.  Yet, there are a few noteworthy aspects of Facebook’s suit.

Facebook’s lawsuit asserts six patents against Blackberry.  (See Facebook, Inc. v. Blackberry Limited, Case No. 4:18-cv-5434 (N.D. Cal.)).  Yet, none of those patents are homegrown Facebook inventions.  Rather, Facebook acquired each of the six patents from other companies, including AOL, AT&T and Hewlett Packard.  As other commentators have already pointed out, acquiring patents from others to sue for infringement is typically the hallmark of a purported patent troll.

More than that, Facebook does not appear to be practicing any of the patents asserted against Blackberry.  Facebook’s complaint does not appear to allege that its own products are protected by these patents.  More tellingly, Facebook’s complaint does not request injunctive relief.  In other words, as far as Facebook and these patents are concerned, Facebook is a non-practicing entity.  This is another oft-touted hallmark of the purported scourge of the patent troll, as we discussed in on our post on whether IBM is a patent troll.

But it gets worse.  Facebook appears to have acquired the patents in its case against Blackberry for the express purpose of suing Blackberry.  The patents do not appear to have been acquired years earlier in connection with some product under development, or some other such thing.  Rather, the patents were acquired literally weeks before Facebook commenced suit on September 4, 2018. 

The ‘231 patent was acquired from AOL in 2012.  But the ‘575 patent was acquired from AT&T on July 24, 2018.  The ‘841 patent was also acquired from AT&T on July 24, 2018.  The ‘432 patent was acquired from Hewlett Packard on August 6, 2018.  The ‘759 patent was also acquired from Hewlett Packard on August 6, 2018.  And the ‘698 patent was also acquired from Hewlett Packard on August 6, 2018.

In short, faced with Blackberry’s lawsuit, Facebook appears to have gone out on the market, picked up five assets that it could use to counter-sue Blackberry, and done so without any regard for whether it practices these patents.  That raises a few questions.  How much did Facebook pay for these patents?  If they were picked up for a song, does that show that Facebook never had any intent to collect damages from these patents?  But has rather asserted them simply as a defensive ploy to shut down Blackberry’s suit?  Is that a proper use of patents, or a misuse of them?

Undoubtedly, assuming a settlement is not reached sooner, discovery from Facebook will flesh out all of these questions.  Yet, it remains a bit rich for Facebook to be delving into the purportedly darker tactics of alleged “patent trolls,” when it has publicly painted itself as a victim of alleged patent trolls.

But presumably, Facebook doesn’t care about that irony.  As long as it wins.  As Gaston Kroub remarked on this case, “everyone finds a way to like a winner.”