by Dr. Catharina Maracke
The social networking platform “Twitter” has stepped into the debate about patents and a global patent reform. In a blogpost on the company website last Tuesday the microblogging network has announced the release of a new document, the so-called Innovator’s Patent Agreement (IPA) Version 0.96. The license text is licensed under Creative Commons Attribution 3.0 Unported.
The new patent agreement, which is set to come into force later this year, states that patents will not be used in an offensive way without express written permission of the original inventor. This means Twitter cannot sue another company or person without the consent of the employee/engineer to whom the patent was awarded. Twitter can, however, use the patent for defensive purposes and defines defensive purposes in section 2 of the agreement as:
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.
The idea is to keep control in the hand of the engineers and designers and to initiate a departure from the current state of affairs in the industry says Adam Messinger, Twitter’s VP of Engineering. Typically, engineers and designers sign an agreement with their company which irrevocably gives that company any patents filed related to the employee’s work and which consequently gives that company control over the patents to use them however they want. With the new IPA, Twitter is looking for a way to assure employees that their patents will only be used “as a shield rather than a weapon”. To make this message even more plausible, the agreement is drafted to apply to patents even after they are sold.
While some have celebrated Twitter’s Innovator’s Patent Agreement as an important step in the fight to improve a broken patent system (see the related statement published by the Electronic Frontier Foundation to name only one) others doubt that the proposal will bring a cease-fire in the patent wars any time soon: Looking at the current patent-related lawsuits and deals, and taking Oracle vs. Google as only one example, skeptics argue that too many billions are at stake and companies may face angry shareholders if they follow Twitter’s suggestions and don’t pursue all avenues to extract values from their assets. In addition, there is the argument that the wording of Twitter’s IPA is too vague and especially the definition of being “defensive” leaves a lot of room for interpretation, which qualifies the Innovator’s Patent Agreement as a PR and recruiting win for Twitter rather than a serious base for discussion (see http://techcrunch.com/2012/04/17/twitter-announces-innovators-patent-agreement-gives-ip-control-to-engineers-and-designers and http://startupsip.com/2012/04/17/the-twitter-ipa-what-does-defensive-really-mean).
Unquestionably, there is room for improvement in the language of the IPA and especially in the definition of what is being considered as a “defensive purpose”: Where the agreement refers to an entity “that has filed, maintained, threatened or voluntarily participated in an intellectual property lawsuit against another in the past ten years” or to an entity “that has filed, maintained or voluntarily participated in a patent infringement lawsuit against another in the past 10 years”, it certainly excludes the vast majority of big names in tech and most likely Twitter’s main competitors from the core promise not to act in an offensive way. The vague wording also leaves room for additional disputes about the definition itself – what would qualify as a threat in the context of an intellectual property lawsuit? But the achievement of Twitter’s announcement should not be seen in the language of the agreement itself. The real success story behind Twitter’s latest move is the call for a collaborative effort to re-think and deflect the standard operating procedure to use the current patent system as a vehicle to decelerate innovation by encouraging the race towards levels of blocking each other up to stalemate.
Instead of downgrading Twitter’s initiative to a PR or recruitment tool it would be more constructive and desirable to see it as an invitation to contribute to the discussion about a global patent reform, if not a global intellectual property reform.