Intellectual Property

3 Reasons Why X Might Not Sue Meta

Everyone is waiting to see what comes next. For all we know, the MMA octagon has already been reserved. But, just in case ...

By  
on
Elon Musk

(by Heisenberg Media)

“Hi Elon? It’s Gaston. No, you don’t know me. But I am a patent lawyer with a weekly IP column on ATL and I know you have some IP issues to deal with at the moment. I also have a friend that went to Wharton, and he remembers that you were his TA in one class. And the host of patent law’s most interesting podcast series, Clause 8, was hoping that we could speak with each other about suing or not suing this Meta Threads competitor that X (neé Twitter) is now facing. Elon? You there?” No, I probably won’t get to discuss IP strategy with Elon Musk. But I did get to have a lot of fun chatting with Eli Mazour about one of the most interesting IP stories of the day, the brewing battle between Musk’s X and Meta’s new “way to share text” Threads. For now, it has mainly been a battle of words, with an immediate cease and desist letter from a top litigator thrown in for good measure. Everyone is waiting to see what comes next. What makes this situation a fun one is that a trial by combat, MMA-style, is on the menu for getting things resolved.

On the legal front, there has been a lot of speculation about what IP arrows Musk could pull out of his quiver. In our discussion, Eli and I talked through the possibilities around a potential trade secret claim, with a focus on what it might take to put a patent case together on short notice against Meta. As I said on the podcast, the strongest possible case would be one where a combination of different IP claims were included, with Waymo’s successful assertion against Uber being a precedent that X might try to follow if it could muster up a credible trade secret claim. But for purposes of this column — and to try to sate Eli’s appetite until I get an audience with Elon — let’s presume that the only claim that X could assert would be a patent infringement case. We can even assume that they have a decent patent case to file, with a bunch of homegrown patents that are easy to show infringement by Threads on. Add in Elon’s litigation track record and access to top-notch counsel and, you would think, pulling the trigger on a case would be a no-brainer.

The reality, however, is that X did not file a patent case right away. And they may have good reason to never do so, even with the positive assumptions we have made about the viability of their potential case. In fact, I can think of three reasons why Elon might decide that if his only legal option is a patent case, he would rather continue his battle in the court of public opinion than in the halls of an Austin or San Francisco federal courthouse. The following three reasons are not an exhaustive list, as there are always a plethora of reasons to take or not take legal action, just like there are many reasons to drink (or not drink) that second iced latte with a caramel drizzle. For all we know, the MMA octagon has already been reserved, making all this legal talk a moot point. But onward we will persevere.

First, I can start with the fact that getting a quick win as a patent plaintiff is a near impossibility. Yes, there is always the quixotic effort available of chasing a preliminary injunction, but that effort could also lead to bad press if things go awry while the news of the filing is still fresh in the public eye. Although Elon may gain a frisson of excitement from generating headlines about a multipatent case being filed against Meta, that feeling will be short-lived. The reality — it is hard to treat patent litigation as anything other than a test of patience and a war of attrition – will soon set in. As I said on the podcast, the role of emotion in IP litigation can’t be overstated, so my question on this front to Elon would be: Do you have the emotional stamina for a drawn-out battle, or even better, enjoy the idea of creating a litigation overhang over Meta that can drag on for years? Or do you want action now, expecting results to quickly follow? If the latter, I can understand why filing a patent case wasn’t for you at the moment.

Second, in a related vein, is the fact that there is a good chance of losing — at least on something — when filing a patent case, even when the overall outcome is favorable. Maybe a patent or two can’t sustain the load on infringement grounds. Or there is some Alice or IPR motion practice that ties up the case for years and leads to some negative decisions on validity for some or all of the patents. If you are someone with little tolerance for losing, the push and pull of big-ticket patent litigation might become a draining experience. On the podcast, I made the point that litigation has a way of increasing animosity, as even the smallest aggravations caused by the other side, whether on the merits or on procedural grounds, start to add up over time. It is that emotional cost, rather than the dollars spent on the case, that could give someone like Elon pause about going after Meta just with patents. They are a very adept defendant to begin with, despite a recent setback or two on the patent front we have discussed here before.

Lastly, it is not hard to see that the threat of litigation is already doing a lot of the work for X and Elon’s benefit, without any of the hassle. Between the reporting on the cease and desist letter, as well as Elon’s “copycat” refrain when discussing Threads, progress toward establishing X as the wronged innovator has already been made in the public discourse. Why ruin what is working by filing a case that will immediately get picked apart in a critical manner by the same voices hyping up the threat of such a case in the first place? Elon, I understand why you have not yet chosen to file. Hit me up on @gkroub if you want to talk about it some more.

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Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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