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), 19 Apr 2012 @ 5:26am

    Re: One rebuttal

    This guy's criticism is largely flawed. Let's take his four criticisms:

    "As Michael Kanellos pointed out on Forbes yesterday, the agreement has holes.

    For instance, Twitter's pledge doesn't apply to any company that's filed its own patent infringement suit in the last 10 years. So even if you're a real company making real products, and you filed a lawsuit to prevent somebody from blatantly ripping off your IP, Twitter reserves the right to sue you first."

    So? The solution is to not be a patent aggressor. (Whether you are a troll or not is frankly irrelevant.)

    "Another example: the pledge says that Twitter can use the patents offensively to "deter a patent litigation threat." So if Twitter feels threatened, it can sue."

    So then don't threaten them with an offensive patent suit

    "Twitter's pledge also gives employees -- the actual inventors -- an uncomfortable amount of power. Kanellos lays out a hypothetical situation in which a rip-off company clones Twitter, then bribes a key patent holder to withhold consent so Twitter can't sue."

    This is a good point. As I mentioned in my other post, this is the reason that it might be better to grant the contractual right to an independent agency such as a Patent Defense Trust or League, whose core mission is to block offensive use of patents, and which would presumably be un-bribeable.

    "Geekwire interviewed three IP experts who agreed that the pledge is full of loopholes. One of them called it "both dumb and disingenuous."

    Among other problems: you can't use patents defensively against most trolls, because they don't make any product. By definition they can't possibly violate your patents."

    Yes. This is a defect caused by the nature of patent law. Twitter cannot be blamed for this. In fact there is no way to defend against trolls.

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