The Twitter "Patent Hack"
avc.com
avc.com
I've created a couple things that are "patentable" (not that I would want them to be, but they are) so can I email someone at Twitter and essentially say the following:
"Hey, I want these things patented, but I have no money. Can you patent them for me, giving you the defensive rights and me the licensing rights? I will never allow them to be used offensively"
Because that would be balls-to-the-wall-hella-fucking-awesome.
For starters, how would you enforce licensing? You'd have to… sue other people for patent infringement. I thought we were all agreeing that software patents are mostly unadulterated bullshit.
Secondly, if they put up the patent lawyer cost why wouldn't they also keep any potential licensing fees ;)?
In the end the Right Thing To Do™ would be to publish your work and try to establish it as prior art so people can't abuse it.
The reason would be so that would have more ammo in their arsenal and would be untouchable by any real company (they would still be touchable by patent trolls, but that is a different issue).
As for licensing enforcement, simple I wouldn't enforce it! :) I would just enter as an ally with any unfortunate company that is getting sued by an aggressive company.
Furthermore, there are real benefits for being a patent originator, special visas, research grants, etc. But the fees are pretty hefty, especially if you want to do it world wide.
Twitter could morph into a patent shield for hire and split the defense fees with the originators.
That's not their business model and no matter how noble the idea I can't imagine them going down that road. Even if it in some way benefits them.
If you don't want them to be patented, why would you do this? Just publish them if you want to dedicate them to the public.
Put differently: In an ideal world there would be maybe 10 thousand patents awarded per year. Real, hardcore research patents, like the stuff Intel or GE would need to justify their insane research budgets. But if there are millions of patents out there every single one of us has broken them, we may as well patent stuff in order to have ammunition against shitty aggressive companies.
The problem is that this document has enough loopholes that it only slightly ties the hands of the patent assignee (Twitter, in this case). I understand perfectly why those loopholes are there, but I think that this will backfire at some point in the future when there is a "defensive" use that, at least from the outside, doesn't appear defensive. It could be because there is a perceived threat, it could be because the inventor agrees, it doesn't matter. At that point, the legal agreement will be kept, but the social agreement broken, and that will be devastating.
The most clever bit here is that this agreement is designed to run with the patent so that it makes the patents less likely to be asserted when they are sold. That is a good thing.
As it is, though, my favorite tool for this sort of thing is the Apache license. That allows everyone who is playing nicely in the sandbox to do so - but it also allows the patents to be cross-licensed effectively and defensively asserted against existing litigation.
Three years pass and now a new service, Blithr (like Twitter but messages are limited to 18 characters and all caps) has stolen Twitter's thunder and Twitter is facing bankruptcy. They are forced to sell off their assets, including their patents, and those end up in the hands of a patent troll.
And suddenly, people who used your plugin are having to defend themselves in the US District Court for the Eastern District of Texas.
The issue is the ambiguity of "defensive" action gives the assignee of the patent relatively broad license to act without the consent of the inventor - and the inventor can be suborned later, too. (Trust me, that happens.)
Do you really believe that will happen? When investors are asking why some pinhead inventor is holding up their profits? You can't force everyone involved in a company to think this is a good idea, and therefore, it isn't.
Edit: (For some added color, imagine Kevin O'leary of Shark Tank fame sitting on the board of a company with some of these patents).
The article we're commenting on is an investor excited that software patents will stop holding up profits.
I expect investors to be rational - and to seek profits where they are available given the information that is currently on the table. In some cases, that means they will say, "you know what? Screw that doc - we're selling these puppies."
In certain situations, I could see investors trying to undo this agreement so they could unlock that value. If the value is great enough, they will try really hard (and given how vague this agreement is, I bet they'll succeed). That's all I'm saying.
In the end though, I don't see how this agreement is anything more than twitter saying "we won't sue people over patents, and we won't sell them to people who will". I don't see that as particularly significant. Just that twitter isn't pursuing licensing revenue as a strategy.
Sometime, in less than 17 yrs from today, the balance of 'defense only' patents to normal patents would make offensive patent litigation prohibitively expensive.
Suddenly, there is a group of people on this planet - not lobbyists, not politicians, not investors - actual IP producers who can change a broken system for the better. To me, this is the most exciting potential of the Twitter Patent Hack.
More broadly, they're hedging their bits by trying to preserve some financial value to their patent portfolio.
Suppose you patent "swipe left to refresh" and five years later the private equity group that has bought the husk of your former company approaches you and offers you 10 grand for the right to litigate aggressively… I would find it hard to say no, despite thinking all software patents are bunk.
In the end, it's converting the yc pledge into legally binding language, and without limiting it to just startups. Like the pledge, it's rather toothless – but a step in the right direction.
Which, unless the author has specifically assigned copyright to someone else, you can totally do. A similar situation arises with dual-licensed software. Of course, older versions of the software still 'live on' under the GPL, the author is implicitly making a fork.
This is one of the reasons the FSF wants you to assign it copyright to stuff: http://www.gnu.org/licenses/gpl-faq.html#AssignCopyright
That's what I'm talking about, though. You can't say "Everybody that has previously used or is currently using this software under the terms of the GPL now owes me a crapload of money -- and by the way, the GPL is revoked and you must abide by the Microsoft EULA".
But that seems, to my untrained eye, to be exactly what this Twitter patent promotes. It's basically saying "We won't sue you now, but we reserve the right to do so at any time in the future. So keep your grubby mitts off our IP." Really, it's no different than the status quo.
For instance you can dual license your work. Have a GPL version for free or a private version which they could pay for.
I wouldn't be so sure of that.
1. Nielsen could've offered a small pile of cash (and/or a commission) to the patent holders to get them participate in the lawsuit.
2. Nielsen could've pressured the company it bought the patents from to pressure the authors to remove the clause from the patent (I'm sure it's doable, one way or another).
This "patent hack" basically assumes that individuals are more ethical than companies, and I think this assumption is flawed. Companies don't have mortgages.
> Assignees must obtain prior written permission from all of the Inventors without additional consideration or threat.
Most of the companies I know would be much less likely to give full weight to a portfolio burdened with this sort of agreement, simply because litigation is the stick that brings companies to the negotiating table. If one party to a proposed cross-license has preemptively given up the ability to act offensively, that makes cross-license agreements either harder to get or more expensive.
I recognize that in a negotiation, a company could use clause three to "defensively" assert against a company that is also making assertions with an eye to a cross license, but then you get into the situation I described in another comment, where you keep the legal contract but break the social one.
Or even add: If you are licencing a patent to another company, the licencing is void if that company attacks another company.
It just seems to me that if some evil company buys the patents, they're not going to respect the agreement the inventors and Twitter signed. For the agreement to cause financial damage, the inventors would have to sue the evil company that obviously has a ton of lawyers. Can you afford to sue Microsoft? I can't.
No, the inventors don't have the right to license the patents to whomever is being sued. The twitter agreement gives all rights in the patent to the assignee, just like any other assignment, but it adds on the clause that the assignee agrees to get permission from the inventor if they want to sue offensively with the patent. In the future, if the assignee (whoever it is at that time) decides to sue offensively without the permission of the inventor, the assignee can (and indeed they have the right to). The inventor would then have a cause of action for breach of contract against the assignee, but who knows what that would amount to.
In one case, evil company buys patent, and pays off everyone involved to drop this agreement. Now we're back to normal.
In another case, evil company can't get eveyrone to do that, so the transaction doesn't happen.
This seems exactly the same as saying "We won't use our patents offensively, and we won't sell them." No legal documents required.
Call me cynical, but this will never work. Frankly, I'm not sure I think it should work. It smells of throwing the baby out with the bath water.