the laughing cloud

Twitter – create the Defensive Patent Foundation now!

I’ve been having a nice quiet time, not a lot going on to upset me.  Until this morning when I read the latest via HackerNews about The Innovator’s Patent Agreement:…

Twitter is trying to create a sort of ‘patent which can’t be used to hurt anyone’ – from the preamble of their agreement:

“WHEREAS Company and the Inventors believe that software patents should only be used to make a positive impact in the world and, accordingly, should only be used for defensive purposes”

It’s essentially a patent assignment document.  These documents are interesting because, in the US inventions are invented by people; not companies.  They can be *assigned* to companies, which often happens, but the inventor generally gets to keep their name on the patent.  (Of course Edison has everyone working in his labs assign all their patents to him, but that’s another post entirely).

So here’s what they consider 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.

If Assignee needs to assert any of the Patent claims against any entity for other than a Defensive Purpose, Assignees must obtain prior written permission from all of the Inventors without additional consideration or threat.

And if they dont?

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

And how long does this last?

This license to the Inventors is not assignable but may pass to the heirs of an inventor in the case that the inventor is deceased.

Wow.  It’s nice that Twitter wants to make the world a better place; but this isn’t the most useful way to go about it; because there are problems here… let’s review a few:

  • OK, so they can use the patent offensively against any entity that has even threatened an IP lawsuit against any of their users.  (a) aTwitter has over 500 million users. That’s a pretty gaping hole dontchathink?
  • Any company that has voluntarily participated in an IP lawsuit in the last 10 years.
  • To deter a patent litigation threat against users…

OK, so I think I can probably drive a truck through a, b, and c.,  How about if we wanted to get permission from the Inventors to let a lawsuit proceed?  They need to get prior written permission from all the inventors. Good luck with that.  Can’t find one?  Too bad.  And if they’re dead.  Too bad… ask their kids for permission.  That’s a bit foolish really.

Otherwise the inventors can just sublicense their invention to the enemy.  Just like that.  Sounds like a pretty good strategy to me.

If Twitter really wants to make the world a better place through an agreement to use patents only defensively, then we need a trusted 3rd party to decide the questions of whether the use is defensive or not.  No 500 million user loopholes.

How about a Defensive Patent Foundation – sort of a cross between the EFF and FSF who, through the use of a license, can do this correctly, impartially, and better than even the Inventors ever could (provided you could find them).




Leave a Reply

Your email address will not be published. Required fields are marked *