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IPcopy took a quick look at the Twitter Innovator’s patent agreement recently and concluded that there was probably enough wiggle room in the agreement to allow Twitter to start legal actions against most people should they want to do so (see the earlier post here).
One thing that struck us at the time of writing the earlier article was the relative lack of Twitter patents and patent applications (we could only find three such patent documents and one of these belonged to TweetDeck).
Now comes news that Twitter has been working on another patent filing which reads much more closely onto their core business. This now granted US patent (US 8401009) can be found here. So, I hear you ask (probably), “How come you didn’t see that coming”? Good question.
A quick check of the patent register on the USPTO website (public PAIR) for the above patent shows that when Twitter made their application back on 22 July 2008 they asked for the application to not be published at the normal 18-months-from-filing point.
This option is open to applicants in the US system if they certify that the US application in question has not and will not be the subject of an application filed in another country/international agreement that requires publication at 18 months. [Question: is this still the case after AIA?]
Given Twitter’s public “for defensive purposes only” stance we can’t help but wonder why they kept this under wraps for so long?
Claim 1 of the new patent, by the way, reads as follows:
1. A method for device-independent point to multipoint communication, the method comprising: receiving from a first computing device of a first user a selection of one or more endpoints for receiving update messages; receiving, from the first computing device, a request to follow a second user; designating, by a computer processor, the first user as a follower of the second user in response to the request, wherein designating the first user comprises configuring an account of the first user to reference update messages broadcasted by the second user; receiving, from a computing device of the second user, a broadcast request to broadcast an update message in a first format, wherein the update message lacks identification of the first user as an intended recipient, and wherein the update message includes an identification of the second user as a sender of the update message; identifying, by the computer processor, a plurality of followers of the second user in response to the broadcast request, wherein the first user is among the plurality of followers; determining addressing information of each of the plurality of followers, wherein the addressing information of the first user identifies the endpoints for receiving messages; applying, for each of the plurality of followers, rules to the update message based on the addressing information; translating the update message into an appropriate format for each of the endpoints; and broadcasting the update message to each of the endpoints in the appropriate format.
Mark Richardson 21 March 2013
IPcopy 
So, at exactly what time did the general public find out that Twitter was applying for this patent? Was there any time at which a member of the public was able to submit prior art to the USPTO with regard to this patent application?
I “submitted” my prior art (snapshotted on Wayback in 2001, and not acknowledged anywhere in the final patent) to Ask Patents at http://patents.stackexchange.com/questions/3533/call-for-prior-art-twitter-device-independent-message-distribution-platform, because there doesn’t seem to be anywhere else to submit it, without paying a whole lot of money to someone.
As far as I’m aware the Twitter patent referenced above did not publish until the patent had issued (so earlier this month). In such circumstances, I understand there’s no way of disclosing prior art directly to the USPTO.
If the existence (rather than the actual content) of a patent application that is subject to a non-publication request was known of prior to grant then I guess it would have been possible to send the prior art to either the inventors or the attorneys involved (and they would have a duty to disclose information relevant to the patentability of the claims).
For a granted patent (that had been the subject of a non-publication request) then I think the route to challenging the patent after grant would involve a re-examination proceeding.
I note that the above comments are only to the best of my understanding and that I’m not a US attorney. If you need specific input into your situation then you would need to talk to a legal representative and/or a US patent attorney.