A Different Kind of Twitter Revolution: Patents Will Not Be Used as Weapons

The company proposes a new way forward in fixing the mess that is software patents.

There is something very, very rotten in the kingdom of patents -- in particular, software patents. As venture capitalist and Twitter investor Chris Sacca explained in an episode of This American Life, "We're at a point in the state of intellectual property where existing patents probably cover every single behavior that's happening on the internet and our mobile phones today." Such patents -- for tiny, basic actions such as swipe-to-unlock or one-click shopping -- make it difficult for new companies to innovate and build new products, because they risk expensive lawsuits from patent-holders, which are often giant shell companies who profit from buying up patents and suing infringers, but not actually innovating or using the patents themselves, as this fantastic This American Life episode examined. (NB: If you have not listened to that episode, you're missing out.) There are so many software patents -- hundreds of thousands, with 40,000 new ones each year -- covering so many inane operations, that entrepreneurs can't reasonably avoid infringing. The system meant to foster and encourage innovation is now working against that very goal.

The legal regime that "governs" this mess has been resistant to change, in part because of the aggressive lobbying efforts of the pharmaceutical industry. Under the WTO's TRIPS agreement, member states "cannot discriminate between different fields of technology in their patent regimes," meaning that software and pharmaceuticals are all together in this handbasket.

Well non-discrimination be damned. If the government can't create separate regimes for different kinds of tech, one tech firm is going to try and do it itself, and that firm is Twitter. The company announced today on its blog a bold new approach to software patents called the "Innovators Patent Agreement" (IPA). Adam Messinger, Twitter's VP of engineering, wrote:

The IPA is a new way to do patent assignment that keeps control in the hands of engineers and designers. It is a commitment from Twitter to our employees that patents can only be used for defensive purposes. We will not use the patents from employees' inventions in offensive litigation without their permission. What's more, this control flows with the patents, so if we sold them to others, they could only use them as the inventor intended.

This is a significant departure from the current state of affairs in the industry. Typically, engineers and designers sign an agreement with their company that irrevocably gives that company any patents filed related to the employee's work. The company then has control over the patents and can use them however they want, which may include selling them to others who can also use them however they want. With the IPA, employees can be assured that their patents will be used only as a shield rather than as a weapon.

According to the terms of the agreement (which can be read in full GitHub) any patents obtained by employees of Twitter will not be used offensively to impede the work of others without direct, written permission to do so. If a future patent-holder were to attempt a suit without such permission, the inventor can go ahead and issue a license on his or her own to the entity being sued.

Around the web, tech and intellectual property writers and thinkers are cheering Twitter's move, calling it "fantastic," "an idea whose time has come," and "a kind of Hippocratic Oath for tech companies." And beyond what this means for Twitter and Twitter employees, the company says it doesn't intend to go at it alone, but rather are starting "to reach out to other companies to discuss the IPA and whether it might make sense for them too." If more companies take up Twitter's offer, this sort of system could become the not-quite law of the tech land.