In the movie “The Social Network”, Mark Zuckerberg creates Facebook after being engaged by the Winkelvoss twins and Divya Narendra to build their dating site. Facebook becomes a massive success, but the Winkelvoss twins and Narendra accuse Zuckerberg of stealing their invention. This enrages Zuckerberg, and he retorts, “If you guys were the inventors of Facebook, you’d have invented Facebook.” Eventually the parties settle and the Winkelvoss twins and Narendra receive a large settlement.
While “The Social Network” raked in hundreds of millions of dollars at the box office and received critical acclaim, a nagging question remains: Would this incident have been so dramatic had the Winkelvoss twins and Narendra patented their idea BEFORE engaging Zuckerberg?
If they had patented their idea, and then sued Facebook for patent infringement, it would have resulted in a common patent infringement lawsuit. Zuckerberg’s zinger “If you guys were the inventors of Facebook, you’d have invented Facebook” might have been replaced by a lawyerly, “Your patent’s claims don’t cover our product under our claim construction.” Definitely not as memorable or dramatic!
Drama aside, there is an important lesson here: If you feel that you have an invention, it is advisable to file a patent BEFORE disclosing it to a third party, especially in a first-to-file jurisdiction such as the USA or Canada. That way if the third party does use your invention and build a multi-billion dollar company, you’ll have stronger grounds for claiming theft of intellectual property. Otherwise, you might see your convoluted and expensive story on the big screen too!