Last month, in response to Yahoo’s wrongheaded patent infringement lawsuit against Facebook, I wrote about my experience filing patents at Yahoo. Patents I helped to file, ostensibly only for defensive purposes, were turned into blunt weapons to thwart innovation and extort money.
As I said, “I thought I was giving them a shield, but turns out I gave them a missile with my name permanently engraved on it.”
This week, Twitter announced their Innovator’s Patent Agreement, an open source contract intended to guarantee patents will only be used defensively, even when sold. The IPA seems to directly address the issues raised in my article.
Adam Messinger, Twitter VP of Engineering, wrote that, “With the IPA, employees can be assured that their patents will be used only as a shield rather than as a weapon.”
Every one of Twitter’s existing patent filings, including Loren Brichter’s famous pull-to-refresh patent, will fall under this agreement later this year.
Still, the IPA isn’t perfect, and it needs work to protect the intentions of designers and engineers. Instapaper founder Marco Arment pointed out that the contract’s definition of “defensive” is overly broad, allowing an unethical company to initiate a lawsuit for a range of reasons without requiring the inventor’s permission.
Hypothetically, if Yahoo had adopted the IPA, would it have prevented them from later suing Facebook for patent infringement? Maybe not. Facebook’s threatened several startups over trademark name issues in the past, including Lamebook, Placebook, and Teachbook. If any of them were also users, customers or affiliates of Yahoo, then Yahoo could bypass the Patent Agreement and file a patent lawsuit. (Though, if they did, the inventors could choose to sublicense their patents directly to Facebook.)
These problems are correctable though, and Twitter should be commended for taking this important first step. In a deeply broken patent system, it’s heartening to see an established company proactively try to work around its flaws. I hope agreements like these find wide industry adoption.
But this isn’t a real fix. Union Square’s Fred Wilson dubbed it Twitter’s “Patent Hack,” and that’s exactly what it is — it’s duct tape to patch a broken system, but it doesn’t solve any of the underlying problems.
The ideal would be patent reform, or if the system’s beyond reform, the abolition of business method patents entirely.
Marco Arment wrote, “A truly innovative stance would be for a large technology company to avoid filing patents, and to lobby aggressively for progressive patent reform to make that a practical choice for every technology company.”
Like I did last month, Marco vowed not to file any patents. “I fundamentally disagree that software patents (and many other types of patents) are a net gain for society, and I can’t participate in that system in good conscience.”
After all, if you only use them defensively, why do you need patents at all? Publish your work and establish prior art.
Sadly, prior art only works in an ideal world. As we’ve seen, the U.S. patent office routinely grants patents even when prior art exists. The recently passed reforms to the patent system, switching from a first-to-invent to a first-to-file system, make this more likely than ever.
For the moment, avoiding patents entirely isn’t a realistic legal strategy for large companies. Maintaining a patent arsenal won’t ward off shell company-style patent trolls, but it can protect you from competitors by allowing cross-licensing settlements. But all of that feeds into the “cold war” mentality of stockpiling patents you never hope to use.
Until we have real reform or abolition, ethical tech companies are forced to play the patent game, but at least engineers and designers now have a way to rewrite the rules in their favor.