For general release 2/21/2012
EVERYMD USES FACEBOOK'S IPO PROSPECTUS AS EVIDENCE AGAINST FACEBOOK IN APPEAL BRIEF FILED IN THE U.S. PATENT OFFICE
Facebook’s IPO Prospectus Helps EveryMD Counter Allegations Made by Facebook in Patent Infringement Litigation
Los Angeles, CA, February 21, 2012.
EveryMD announced today that it is publicly releasing a copy of its most recent appeal brief filed February 13, 2012 with the U.S. Patent Office's Board of Patent Appeals. EveryMD's appeal brief is the latest filing in ongoing patent reexamination proceedings before the U.S. Patent Office initiated by Facebook against EveryMD's U.S. Patent No. 7,644,122 entitled "Method, Apparatus and Business System for Online Communications with Online and Offline Recipients". In the appeal brief, EveryMD uses statements from Facebook's recently filed IPO prospectus as evidence of the patent's validity. The appeal brief states:
"Thus [Facebook] expressly admits that its commercial success is based on providing its members the tools to 'stay connected,'namely the member's homepages that allow users to send messages to and post comments and rating information (what [Facebook] calls 'Likes') about members. These features are precisely the novel features of the claimed invention: a server providing member homepages with controls for sending messages and posting comments are claimed in all claims 1-26, while a server providing homepages with controls for posting rating information are additionally claimed in dependent claims 6, 7, 10 and 11. Accordingly, [Facebook's] own admissions contradict its assertion that there is no 'nexus' between [Facebook's] commercial success and the claimed invention."
In earlier filings with the Patent Office, Facebook had argued that EveryMD's invention is an "obvious" combination of technologies that existed at the time the patent application was filed in 1999. The EveryMD inventors, in their filings with the Patent Office, had argued that Facebook's commercial success as a result of using the patented invention shows that the patent is not obvious. Facebook in return argued that the EveryMD inventors had not shown a "nexus" between the patented invention and Facebook's success. In the rebuttal brief, EveryMD uses language from Facebook's IPO prospectus as evidence of the "nexus" Facebook argued is lacking.
EveryMD had filed a patent infringement lawsuit against Facebook in January 2010 in the U.S. District Court for the Central District of California (Civil Action No. CV 10-00499). As shown by the U.S. District Court's records, EveryMD had filed a motion for summary judgment of patent infringement against Facebook in September 2010. In EveryMD's summary judgment motion, EveryMD provided evidence to support its allegation that its patent covers the method used by Facebook for providing Facebook pages to Facebook members. As shown by the District Court's records, before EveryMD's summary judgment motion was ruled upon by the Court, Facebook moved to stay the litigation until the patent reexamination proceedings are concluded.
According to U.S. Patent Office records, EveryMD's patent was filed in November 1999. According to EveryMD's filings in the reexamination proceedings, the patented invention grew out of development of the medical doctor communications website www.EveryMD.com, which has been in continuous operation since 2001.
According to EveryMD's attorney Frank Weyer, the timing of Facebook's IPO Prospectus could not have been better. "Earlier in the litigation, we had offered our patent to Facebook for a minimal fee, representing a one-time fee of less than $.02 per Facebook member at the time--an almost negligible amount given the vast sums of money that Facebook intends to make off its users," says Weyer. "Instead, Facebook rejected that offer and tried to overwhelm us with their team of high-priced attorneys. We are now pleased that Facebook did not take us up on our earlier offer. Thanks to Facebook's IPO prospectus, we realize our earlier offer was greatly undervalued. It will now take a substantially higher sum to resolve this ongoing patent dispute."
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