This is an interesting move by Twitter, possibly becoming public now in response to a lot of recent fears about Twitter’s patent on pull-to-refresh:
[The Innovator’s Patent Agreement] 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.
A lot of people are heaping praise upon them for this, but it’s important to maintain perspective.
First, it’s interesting to read their definition of “a Defensive Purpose”, which, loosely summarized, means they can use their patents to:
- Countersue anyone who sues or threatens to sue Twitter for any intellectual-property claim.
- Sue anyone who has sued anyone else for patent infringement in the last 10 years.
- Sue anyone “to deter a patent litigation threat” against Twitter.
These leave a lot of room for interpretation.
The first definition just says “intellectual property”, not just patents. Suppose I implemented pull-to-refresh in Instapaper, Twitter released a new read-things-later product called Instasaver, and I sued them for trademark infringement. They could countersue me for patent infringement on pull-to-refresh.
Or suppose that Twitter implemented tilt scrolling, a lazy designer there just stole my toolbar icon for it, and I merely threatened to sue them for copyright infringement if they didn’t change it. After all, any copyright-infringement claim is at least an implied lawsuit threat. Twitter could then sue me for patent infringement on pull-to-refresh.
The third definition, “to deter a patent litigation threat”, could be interpreted very broadly. Apple has a lot of patents. What if Apple implemented pull-to-refresh in Mail, and a few years down the line, their relationship with Twitter went south for other reasons? Might Twitter conclude that Apple’s patent portfolio could represent a litigation threat, and preemptively sue Apple for pull-to-refresh as a “deterrent”?1
Even if all “Defensive Purposes” were restricted to patent litigation, what if it’s your perfectly valid, innovative patent that Twitter has willfully infringed upon, you sue them, and they countersue you with other patents that you didn’t even know about that seem obvious and invalid?
The Innovator’s Patent Agreement is a nice sentiment, but the loophole potential is simply too great, and it doesn’t (and can’t) address the fundamental problems and dysfunction in the patent system.
A patented “invention”, even when patented under these terms, is still patented. It’s not free for anyone to use, and willfully infringing upon it is still dangerous and unwise.
Despite constant requests from my customers, I haven’t implemented pull-to-refresh in Instapaper for two reasons:
- Twitter patented it, and infringing upon their patent is a serious risk to my business.
- Conceptually, it doesn’t quite make sense in Instapaper’s context, so it’s worth neither the risk of infringement nor the potential cost of licensing the patent from Twitter.
Neither of those have changed with the Innovator’s Patent Agreement.
A truly innovative stance would be for a large technology company to avoid filing patents,2 and to lobby aggressively for progressive patent reform to make that a practical choice for every technology company. But that’s not what Twitter has done.
The Innovator’s Patent Agreement is a well-intentioned gesture. But that’s all it is.
If Apple really did implement pull-to-refresh without licensing the patent, Twitter could actually sue them anytime they wanted, unprovoked, because of the second definition of “Defensive Purposes”: Apple has sued other companies for patent infringement in the last 10 years. ↩
Many Instapaper ideas might have been patentable, including the one-click-save bookmarklet, many techniques the bookmarklet uses, many text-parser algorithms, some Kindle methods, proportional tilt scrolling, automatic-by-sunset dark mode, smart auto-rotation prompting, smart gesture-error prompting, methods for pagination of arbitrary web content, and methods for inter-app communication.
I didn’t patent the older inventions because I couldn’t afford to. I probably could have patented some of the newer ones, but I didn’t even look into it enough to do basic prior-art searches. 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. That’s a stand that I’d like to see more companies adopt.3 ↩
Don’t worry, I didn’t patent it. ↩