If your negotiations with Facebook don’t succeed, what do you do? Well, if you are EVERYMD, you sue Rick Santorum, Newt Gingrich and Mitt Romney for patent infringement. During an election year, that’ll get you press. And maybe negotiation leverage.

On Feb. 27, three of the leading Republican candidates for president found themselves named defendants in a patent infringement lawsuit. The allegations are that by operating their Facebook pages, each candidate infringes a company named EVERYMD’s U.S. Patent Nos. 6,671,714 and 7,644,122.

According to the complaint, EVERYMD operates a website that provides “home pages for over 300,000 member doctors and allows patients to obtain information about, send messages to, and submit comments about those doctors via the doctors’ individual home pages.” EVERYMD alleges that the two patents in the lawsuit cover this process. And as described in the complaint, that functionality is similar to how Facebook business pages operate.

Legal translation: If the patent covers the EVERYMD process, and if the EVERYMD process is similar enough to how Facebook business pages operate, well then, Facebook business pages may infringe the ’122 patent.

According to its complaint, EVERYMD offered to sell the ’122 patent to Facebook in 2011, but Facebook rejected EVERYMD’s offer. Since patents give patent owners the right to bring suit against those who make, use or sell infringing products or processes, and because Santorum, Gingrich and Romney use Facebook pages for their campaigns, they found themselves in EVERYMD’s crossfire.

The complaint also names numerous John Does as defendants which is an indication that the lawsuit is going to grow in size. In an implied threat, EVERYMD’s complaint states, “Defendants Does 1 – 1000 are
each a presently unidentified one of an estimated 4,000,000 additional Facebook business account holders that are subject to the jurisdiction of this court.”

The complaint also states that “EVERYMD announced a limited time reduced price patent licensing program under which holders of FACEBOOK business accounts could avoid liability for infringement of the ‘122 patent by voluntarily purchasing licenses to the ‘122 patent for a reduced price of $500 per FACEBOOK business account. EVERYMD’s reduced price voluntary licensing program has ended.”

Reading between the lines, it appears EVERYMD considers any business that operates a Facebook page a potential infringer, and thus future defendant.

Looking into the future, EVERYMD may be facing an uphill battle with this case. According to Dennis Crouch, Facebook successfully pulled the ’122 patent into reexamination.

Legal translation – Facebook convinced the Patent Office to give this patent a second look to see if it is valid or not.

The Patent Office has now rejected the patent, and EVERYMD is fighting this determination on appeal.

This opens up an easy, and cost effective, strategy for the defendants…move to stay the case.

Legal translation – Patent cases are difficult, expensive and time-consuming affairs not just for the parties but for the judge. So, if you can convince the judge that the Patent Office
is likely to kill the patent, he will likely stop the case (because why would he want to do any work when the Patent Office may make sure there’s no work for anyone else to do?).

So, is this lawsuit a high profile negotiation tactic? Or an actual attempt to enforce patents against potentially every business Facebook user? Only time will tell.