After speaking with two patent lawyers, it appears that Yahoo will be lucky to win even a few of its patent claims against Facebook.
Matthew Asbell, associate at Ladas & Parry LLP, and John Richards, Fordham University Adjunct Professor of Law (and also a partner at Ladas & Parry LLP) reviewed Yahoo's suit against Facebook for Business Insider.
They weren't willing to come out and say decisively one way or another whether Yahoo would win or lose. They're lawyers, after all. They're in the business of hedging. We, however, are not. And after listening to them it's hard to believe Yahoo will win its case.
Here are takeaways from our conversation with them:
- Yahoo will be attacking Facebook on specific "claims" in each patent. They probably won't "win" every single claim, and because of the wording (more on that in a second) it's unlikely that Yahoo will be able to pick up more than a few "wins."
- The wording on many of the patents is very vague. "If we're arguing (over the meaning), then we're sure lawyers that have been briefed will have many more arguments," Richards said.
- Some patents date back to 2004, and some even earlier than that. Yahoo will have to show it was doing something new and novel that deserved a patent, which could be difficult for some of its patents. One particular patent on smart advertisement placement dates back to 1999, which could pose Yahoo some problems, Asbell said.
Still, Yahoo will fight tooth and nail to prove Facebook is infringing on its patents. Here's how the whole case will play out:
- Yahoo will say Facebook has infringed on specific claims in its patents. They basically cherry-pick specifics — like parts of a social media feed — that they think Facebook is violating their patents on. It's the equivalent of determining the boundaries for a piece of property, Asbell said.
- Yahoo will have to show that it was doing something new and novel with each patent. Most patents date back to around 2004, when Google was becoming a powerhouse and Facebook was just emerging.
- Both Facebook and Yahoo will argue over the wording of each patent. The courts won't consult outside experts.
- Once the meaning behind the wording is decided, the case moves to trial. Yahoo and Facebook will decide whether to present to a jury or judge, which will then determine the validity of the patent based on the arguments. The judge has the right to throw out a jury's decision.
- After that, it'll probably go to appeals courts. From here on out it's pretty straightforward.
Most likely, the whole thing will be settled out of courts. Facebook is in the midst of an initial public offering and can't risk a big public gaffe due to rules concerning its quiet period.
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