Twitter's Revolutionary Agreement Lets Original Inventors Stop Patent Trolls

from the an-idea-whose-time-has-come dept

We've talked repeatedly in the past about how even if a company got patents for solely defensive reasons, down the road, those patents can end up in the hands of trolls, who abuse them to hinder real innovation. If you talk to engineers -- especially software engineers -- in Silicon Valley, this is one of the many things they absolutely hate about patents. But, because companies often feel the need to stockpile patents as a defensive means of warding off patent lawsuits, many engineers and companies do so out of a sense of obligation.

However, it appears that Twitter is thinking differently about this, and has announced that it will be using its new Innovator's Patent Agreement to guarantee that any patents obtained by employees at Twitter (past or present) grant lifetime control to the actual inventors, to prevent the patents from being used offensively against others.
One of the great things about Twitter is working with so many talented folks who dream up and build incredible products day in and day out. Like many companies, we apply for patents on a bunch of these inventions. However, we also think a lot about how those patents may be used in the future; we sometimes worry that they may be used to impede the innovation of others. For that reason, we are publishing a draft of the Innovator’s Patent Agreement, which we informally call the “IPA”.

The IPA is a new way to do patent assignment that keeps control in the hands of engineers and designers. It is a commitment from Twitter to our employees that patents can only be used for defensive purposes. We will not use the patents from employees’ inventions in offensive litigation without their permission. What’s more, this control flows with the patents, so if we sold them to others, they could only use them as the inventor intended.
As Twitter notes, this is "a significant departure" from how just about every other company handles patent assignments. Along those lines, it's planning to evangelize this idea to other tech firms as well -- and I wouldn't be surprised to see a bunch of others jump on board. The basic idea makes a lot of sense. Twitter has also posted the full agreement to Github and put it under a Creative Commons license.

The method by which this works is pretty creative. Basically, if the actual patent holder tries to use the patent offensively without first obtaining the permission of the inventor, the agreement allows the inventor to issue a license to the entity being sued:
Company hereby grants a perpetual, worldwide, non-exclusive, royalty-free, no-charge, irrevocable license under the Patents to the Inventors, along with the right to sublicense as further described herein, solely so as to enforce the promises made by Assignee in paragraph 2. The Inventors’ right to sublicense is explicitly limited herein to those rights necessary to enforce the promises made by Assignee in paragraph 2. Accordingly, if Assignee asserts any of the Patent claims against any entity in a manner that breaks the promises of paragraph 2, the Inventors, individually or jointly, may grant a patent sublicense to the entity under the Patents, the scope of the sublicense being limited herein to those rights necessary to enforce the promises made in paragraph 2
Of course, how much do you want to bet that an agreement like this violates someone's patent somewhere?

Either way, kudos to the Twitter team for not just doing what everyone else does, despite the fact that everyone hates it. Companies that actually recognize that "standard operating procedures" are a problem are plentiful. Those that actually do something different because of it, are rare.
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Filed Under: invention, licensing, patent troll
Companies: twitter

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  1. icon
    Stephan Kinsella (profile), 18 Apr 2012 @ 1:56pm

    Re: Re: Re: Re: What about existing patent law?

    I think this is a brilliant approach. It is not perfect, but here is what I think is going on. If they just issue a policy statement that they will never use them defensively, they can change their minds later (just like legislatures cannot do this-they have parliamentary or legislative sovereignty and can repeal earlier laws). They can't tie their own hands. So they have to give a right to someone else in some way. The inventor is the safest best. Short of forming some trust or other organization (which might be a better solution, but it's more complicated and not as easily replicable by other companies; this one just requires you modify your standard inventor assignment agreement).

    So to tie its own hands to prevent itself from suing someone aggressively--they are doing it by contractually giving a veto right to inventors, and assuming they would not want to do this. (Note also the agreement says the inventor will not be coerced or threatened into permitting it.) That also means that it runs with the patent if someone else ever acquires the patent from twitter.

    Also, I think it protects the management/board of Twitter from complaints by shareholders--otherwise they might be sued for not acting in the shareholders' best interest if they refuse to sue someone they could extort a billion dollars from, for some "principle" that some managers prefer. This way they can say "well we have no contractual right to--we gave it up previously to the employee-inventors, for purpose of attracting better talent or getting more invention disclosures, a decision protected by the business judgment rule."

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