Earlier today on the Twitter blog the company announced that later this year it will implement what they are calling the “Innovators Patent Agreement,” which they claim will ensure that patents are only used for defensive purposes. Without any evidence Twitter claims that software patents impede innovation. Those familiar with the anti-patent software community well know that their claims that patents impede innovation are always without any evidence. All of the objective evidence points directly to the opposite conclusion, but anti-patent forces can’t be troubled with facts and reality. But that isn’t the worst part! Twitter seems to be attempting to mislead patentees into donating patent rights that can at Twitter’s discretion be used offensively if Twitter feels threatened.
Before moving forward to address the Twitter Patent Scheme, allow me to dispense with the nonsense that patents of any kind impede innovation. For those who do concern themselves with facts and reality I invite you to read:
- The Problem With Software Patents? Uniformed Critics
- An Inconvenient Truth: Patents Do Not Deter Research
- Show Me the IP! Venture Capital Success Based on Patents
- Beware Those Claiming Software Patents are Unnecessary
Of course, the existence of patents hasn’t kept Apple from innovating, and why exactly would companies want to copy the business model of other companies that fail? Apple is a great company to model yourself after and they invent, patent and repeat. At the same time open source companies that turn their backs on patents struggle mightily to stay in business. Sun Microsystems embrace of open source turned it into a multi-million dollar company, which would be great if they hadn’t started out as a multi-billion dollar company. See Open Source Race to Zero.
In fact, it is the embracing of open source solutions that stalls the march of innovation. See Open Source Stalls Innovation. This, of course, is not something that open source and anti-patent activists ever have any real hope of understanding because they make the critical mistake of equating a different product or offering with innovation. Innovation is about advancing, not about copying. Open source is all about copying the work of others. If all you do is copy you are not innovating. If copying is allowed then innovation stalls because there is no incentive to invent around and advance. It is precisely the fragile nature of the exclusive patent right that promotes innovation. If you find a different way to do it than I have in my claims you aren’t infringing. So designing around the claims in issued patents forces innovation forward, NOT the mindless copying that is systematic in an open source environment.
In any event, the Twitter announcement explains the Innovators Patent Agreement as being the result of their concern about how patents impede innovation and how patents acquired might be used in the future. So they are willing take ownership of your patents, which you donate to them, for the betterment of society. Right! if you believe that I have a bridge to sell you. When was the last time any corporation acted in a benevolent and altruistic manner? This is not meant to be an indictment of corporations, just a recognition that like individuals they are out for their own advantage. If you think donating your patents to a corporation for FREE is a wise move you really need help!
The Twitter announcement explains its benevolence this way:
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.
This is a significant departure from the current state of affairs in the industry. Typically, engineers and designers sign an agreement with their company that irrevocably gives that company any patents filed related to the employee’s work. The company then has control over the patents and can use them however they want, which may include selling them to others who can also use them however they want. With the IPA, employees can be assured that their patents will be used only as a shield rather than as a weapon.
Not surprisingly, the benevolence of the Twitter announcement does not actually match up with the actual agreement. The announcement is all about giving employees assurances that the patents that are acquired by Twitter as the result of work done while working for Twitter will not be used for offensive purposes. The agreement, however, is not limited to employees. In fact, the word “employee” never appears in the IPA. Instead, the agreement seems to be for the purpose of getting anyone to donate patents to Twitter. Talk about funny!
Twitter has never really been very serious about protecting its technology, and as such for a company with a value as high as Twitter’s they have remarkably few patent assets. This has to be alarming to investors for many reasons, but particularly since Twitter struggles to figure out how to actually make money. Furthermore, Twitter is really nothing. If others could simply replicate Twitter where would Twitter be? Nowhere and the investments made would evaporate. Just ask America Online (or Time Warner) what happens when the industry passes you and there are no patents that can be used to stave off competition.
I am always skeptical when an announcement does not actually match up with the underlying documentation being announced. It seems to me that Twitter is looking to get those altruistic individuals who believe in open source to donate their patents to Twitter so that if and when Twitter is sued they have the ability to counter-sue. Yes, the “for defensive purposes only” doesn’t prevent Twitter for suing for patent infringement and presumably collecting a lot of money. You see, the IPA says:
[Twitter]… agrees not to assert any claims of any Patents which may be granted on any of the above applications unless asserted for a Defensive Purpose. An assertion of claims of the Patents shall be considered for a “Defensive Purpose” if the claims are asserted:
(a) against an Entity that has filed, maintained, threatened, or voluntarily participated in an intellectual property lawsuit against Assignee or any of Assignee’s users, affiliates, customers, suppliers, or distributors;
(b) against an Entity that has filed, maintained, or voluntarily participated in a patent infringement lawsuit against another in the past ten years, so long as the Entity has not instituted the patent infringement lawsuit defensively in response to a patent litigation threat against the Entity; or
(c) otherwise to deter a patent litigation threat against Assignee or Assignee’s users, affiliates, customers, suppliers, or distributors.
So Twitter can use the donated patents “defensively” to initiate a lawsuit if they feel threatened? If they deem it is otherwise necessary to deter a patent litigation? So Twitter can be the aggressor with the donated patents, and it seems like it is their sole discretion whether the threat or “otherwise” caveat are activated such as to allow them to go on the offensive.
Incidentally, and interestingly, Twitter will have “all rights to recover damages for infringement…”
Simply stated, anyone that gives over their patents to Twitter is out of their minds! This is a one-sided contract that is calculated to bolster the pathetic Twitter patent portfolio free of cost. If they want your patent they should purchase it!
Beware the Twitter Innovators Patent Agreement! It benefits Twitter, not you!