The patent wars are completely and utterly out of control. That pretty much everyone can agree on.
But just about every major technology company feels the need to participate in some way. After all, even if you’re not going around suing other companies for patent infringement, chances are you’re filing for patents just in case.
Yesterday, however, Twitter took an unprecedented step that it hopes will change the game in unveiling an Innovator’s Patent Agreement (IPA). What is the IPA? On the Twitter blog, the company’s VP of Engineering, Adam Messinger, explained:
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.
In addition to restricting a patent’s use to “defensive” purposes, the IPA grants employees a “perpetual, worldwide, non-exclusive, royalty-free, no-charge, irrevocable license” with a limited right to sublicense the patent, subject to terms that would deter an employee from using the patent in an offensive purpose himself.
Twitter hopes that the IPA will be a hit and that other technology companies will adopt it themselves. If enough do, the thinking goes, we might be able to start to clean up the patent mess without the involvement of the US Congress.
But just how big a deal is the IPA? To be sure, there’s plenty to like about Twitter’s IPA, which is being praised in many corners of the tech industry and blogosphere. But questions remain. One patent attorney, Leonid Kravets, calls the IPA a “PR and recruiting win” for Twitter, but points out that Twitter’s definition of “defensive” is so broad that Twitter could “interpret almost anything as a defensive use.”
Kravets also suggests that the IPA could create tension between management and employees. “The reality is that while an inventor remains an employee of the company, management has significant control over the actions of the employee, especially if the employee is looking to advance their career. It appears unlikely that employees would be able to deny the use of the assets if management feels it is in the best interests of the company to do so,” he writes.
This hints at perhaps the biggest problem with the IPA: large loophole around what “defensive” really means aside, the IPA model may prevent companies from acting in their best interests, which would hurt shareholders and stakeholders, including, of course, the very employees Twitter is trying to empower.
There are plenty of problems with the patent system. Non-practicing entities (also know as patent trolls) are a big one that the IPA won’t impact, but the biggest is the fact that so many questionable patents are issued. In short, an overloaded USPTO is issuing patents for “inventions” that arguably aren’t even patentable.
Patent itself is a good concept, designed to encourage innovation and protect innovators, and when a company develops something that is legitimately patentable, there’s a strong argument to be made that it should feel free to use that patent offensively. After all, that’s part of the purpose of patent: to give inventors exclusive use of their inventions for some period of time.
With this in mind, the IPA seems more like a complicating factor in an already overcomplicated environment, and until the USPTO gets its act together, it is unlikely to solve the fundamental problems with patent today.