Twitter promotes patent peace with Innovator’s Agreement

Updated. In a first among major tech companies, Twitter is taking steps to ensure that its patents don’t become fuel for future intellectual property wars.

In a blog posting, the company announced the Innovator’s Patent Agreement which it says is a tool to keep patents in the hands of engineers and designers.

Under the terms of the agreement, Twitter will promise to only use the patents for defensive purposes — asserting infringement claims only if it is sued first:

“With the IPA, employees can be assured that their patents will be used only as a shield rather than as a weapon.”

Twitter has posted the entire agreement here.

Twitter Explains

Twitter’s VP of Engineering, Adam Messinger, said ideas about limiting the harm of patents have been brewing among Silicon Valley engineers for some time.

“A lot of companies make these claims to their employees but no company actually puts any legal power behind those claims.”

The Innovator’s Agreement, he says, finally requires a company to honor such commitments.

Messinger adds that most engineers typically prefer to focus on things besides patents.

“The important part of my work is creating great stuff that people want to use.”

Will It Work?

The Innovator’s Agreement itself works like this. When the engineer assigns a patent to Twitter, the company agrees to let the engineer keep the power to license the patents in order to uphold the promise.

This retained power lets the engineer grant a sub-license to anyone who has been sued in an offensive patent suit by Twitter. That sub-license would then act as shield against Twitter.

The theory is a fine one but it’s unclear how well it would work in the wild. If Twitter really wanted to use the patent, for instance, it could simply pay the engineer to waive the Agreement (most people would probably compromise their patent principles for $10,000).

It’s also unclear if a court would enforce Innovator’s Patent Agreement. For a contract to be valid, each side has to make a promise or what the law calls “consideration” — one-way contracts usually don’t cut it. And, in this case, it’s hard to see what Twitter is getting in return.

Overall, though, it’s likely that Twitter’s agreement will carry more symbolic than legal force. In addition to being a PR coup for Twitter, it may also galvanize other Silicon Valley engineers to join the movement for patent reform.

It’s unclear if other companies will follow Twitter’s lead. In response to an email query, a Facebook spokesman wrote:

“We appreciate the spirit of this initiative and look forward to reviewing the materials that Twitter has shared with us.”
Broken patent system

Twitter’s remarkable announcement coincides with a surge in patent trolling ventures. Many of these involve patent lawyers working with hedge funds to buy up patents from years ago and then file lawsuits against technology firms and other companies that produce items.

Patent trolling has also become a fall-back strategy for firms looking for new revenue streams after their innovation phase is over. The tactic was used, for instance, by bankrupt Kodak and by Yahoo! which asserted ten patents against Facebook in an attempt to claim that it was the real inventor of the social network.

In practice, many of the patents at the heart of such suits are of questionable quality and are the product of an overstretched patent office. Some of the most egregious examples include a patent for emoticons and for a “method of swinging on a swing.”

The legitimacy of such patents has come under repeated fire from the Supreme Court which in recent years has tightened the standards for what is “obvious” and struck down some forms of “business method” patents.

Many Silicon Valley companies have come to regard these patents as a necessary evil and begun to amass their own portfolios so that they can respond in kind if sued over a spurious patent.

The engineers who drive much of the real innovative activity at companies often resent patents, especially those related to software, and feel they are lawyer tricks more than real inventions. The patents at issue in the infamous Lodsys cases (where a shell company is suing all app developers over ‘in-app purchases’), for instance, were obtained by a business consultant, not an engineer.