The question I have that I really, really, really want the answer to be "yes" for is this:
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.
What would be better, in my opinion, is if some large tech company had a defensive publication similar to IBM's Technical Disclosure Bulletin and allowed private parties to publish to it.
Because I think the bar is too low, but I would want to be able to use my patents to defend myself or companies I like from aggression.
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.
I celebrate the impulse that gives rise to this, but I am skeptical that it will work in the long run. The reason why is that these sort of documents are social contracts just as much as they are legal contracts - this is Twitter saying publicly that they won't be evil with their patents.
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.
The problem I see with this is that it doesn't (and, I think, can't) really account for the future. Suppose you see that Twitter has a patent on buttons that you have to quadruple click, and you think they'll only use it defensively, so you make a free jQuery plugin called t4p, which implements quadruple clickable buttons.
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.
No, patents are sold encumbered by their previous licenses. Another entity may acquire the patents, but the portfolio would still be subject to this agreement.
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.)
No, patents are sold encumbered by their previous licenses.
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).
But this agreement, that essentially makes the patent worthless for licensing? If you say so, I'll believe it, but I'm shocked that anyone would buy such a thing.
Investors lose more money to patent trolls than they make from licensing patents or suing people. If they can do things to fix the system overall they'll win in the long run.
A very specific kind of investor - a career-long early stage VC. But even there, there is much room for disagreement without labeling people as "stupid".
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."
Your earlier comment sounded like you were saying that a company adopting this patent hack would be hard to sell to other investors. Isn't selling companies to other investors what an early stage VC does?
If I were investing in a company that had these things, I would be concerned that the patents were now no longer licensable - that their value had been decreased by waiving some of the rights granted by the patents.
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.
rational investors care about their reputation because that is what gets them into the good deals. maximizing profits over a career may require different actions than you think
OK, I think I see what you're saying. In other words, if a patent troll someone buys out Twitter, they will have to renegotiate their terms with the inventor before they can start shaking people down. I guess that's at least some reassurance.
Ah, and there's the rub. All it takes is a nod from the inventor, and the patents can be used offensively. If I'm a troll and putting together a portfolio to go after a "big fish", I probably already have the resources to offer the inventor a sizeable cut or up front payment sufficient to acquire that consent.
Adoption by ventures is interesting, but I think the real power here falls in the ability of inventors themselves to 'unionize' in a sense. Say a movement began where a significant portion of the top patent producers took a pledge to one another to only work for companies under the Twitter Patent agreement.
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.
What's with the "inventor gets to change his mind" clause? That's like having a clause in the GPL that says at any given time, the author can revoke the GPL and sell the copyright to Microsoft. It appears like they're not taking this seriously.
I interpreted it as a concession to moral rights - we can't initiate a lawsuit without your consent, sort of idea.
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.
> That's like having a clause in the GPL that says at any given time, the author can revoke the GPL and sell the copyright to Microsoft.
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.
>Of course, older versions of the software still 'live on' under the GPL, the author is implicitly making a fork.
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.
No, the point is that all of the current & older versions of software would still be GPL. Only the author's next release (possibly released today) would be under different licensing terms. You can't revoke the GPL.
An author of a GPL licenses work does own the copyright and is free to sell the copyright to anyone he chooses and even change the license. What they can't do is to revoke the GPL of past versions that are out.
For instance you can dual license your work. Have a GPL version for free or a private version which they could pay for.
> If Thinking Media had the patent hack in their documents, the story I just told would not have happened.
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.
Reading Fred's story, maybe we should re-examine whether patents are transferable like other assets. Maybe some modification that says the original inventor gets a 20-year monopoly, but any assigned parties only get a 5-year monopoly from file date. That would greatly reduce the incentive to buy other companies' patents, and thereby reduce the overall value of a company's patent "portfolio, while at the same time protecting the original inventor's rights.
Have you considered the reduction in cross-license value that this causes to the patents? Cross-licenses may be ugly, but they are much better than litigation because they allow companies to get back to actually doing productive stuff.
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.
I think Twitter they should go one step further and form a pool of companies which bring in all their patents and:
1) If you join, you are not allowed to bring any other patent lawsuits against other companies.
2) If you get sued, you are able to attack the sueing company with all the patents in the pool.
Or even add:
If you are licencing a patent to another company, the licencing is void if that company attacks another company.
Won't the breach-of-contract damages be a lot less than the awards from using the patent offensively?
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.
Well, the inventors have the leverage in this case, because they can license the patents to whoever is being sued. The whole point of the patent hack is that the inventors continue holding limited rights to the patents, that is, the acquiring company does not fully control them. They can breach contract all they want, but their offense can be neutralized by the inventors by simply licensing to the victim.
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.
Did you actually read the agreement? Kliment is correct. The inventors are granted an irrevocable license to sub license the patent to any target of offensive use of the patent. IANAL, but presumably existing licenses on a patent are attached to the patent and are not just a contractual matter between the licensee and original patent owner.
You are right. The fourth paragraph does give some teeth to the agreement. However, the broad language of the second paragraph still gives the assignee a lot of wiggle room to argue that they are not breaking any promises made.
I don't see the nature of the teeth you refer to, unless everyone's making the assumption that all patent inventors are noble and cannot be convinced, at any price, to license their patents for evil purposes.
Well, if the inventor does not want to be bought out, and does not want to give up the agreement, the patent cannot be used offensively. This reduces the value of the patent as a weapon. This is exactly what this agreement is meant to achieve.
This is hard if the developers on question are unwilling to do so. A somewhat parallel in the whole VLC iphone app not meeting the GPL fiasco comes to mind... They pulled the app because some dev complained. Then again, a corporation with deep enough pockets might be able to cough up enough money to change minds. I'll defer to Raldi on this...
Guess what will be the first thing to go upon sale of the patent? As soon as there is a modicum of financial pressure to unload some patents saddled with this albatross, the buyers will have the power to strip this out.
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.
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.