The Twitter "Patent Hack" • Hacker News Board

Re: The Twitter "Patent Hack"

#11

Post by scromar » Wed, Apr 18, 2012, 1:54 PM UTC

shasta wrote: post #10

scromar wrote: post #6

Earlier quoted context omitted.

Edit: I was wrong here, see the reply below. 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…

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.

Re: The Twitter "Patent Hack"

#12

Post by VanL » Wed, Apr 18, 2012, 1:59 PM UTC

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.

Re: The Twitter "Patent Hack"

#13

Post by damoncali » Wed, Apr 18, 2012, 2:06 PM UTC

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.

Re: The Twitter "Patent Hack"

#14

Post by mistercow » Wed, Apr 18, 2012, 2:09 PM UTC

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.

Re: The Twitter "Patent Hack"

#15

Post by VanL » Wed, Apr 18, 2012, 2:12 PM UTC

fredwilson wrote: post #8

bluedevil2k wrote: post #7

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 pro…

that's not too far from where twitter is going with its IPA

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.

Re: The Twitter "Patent Hack"

#16

Post by Porter_423 » Wed, Apr 18, 2012, 2:13 PM UTC

You gotta wonder whether the encumberances that this may create on IP would be similar to two-tier stock plans, where the market prices in a discount because of the restricted rights you get by buying the patent (or stock). If I still have the right to veto a use of an asset I no longer own, that's worth something to me (i.e., a lower sales price for the asset). Also seems like it will add to the legal overhead of IP transactions. Perhaps the benefits will outweigh the costs, but by no means a clean kill of this problem.

Re: The Twitter "Patent Hack"

#17

Post by VanL » Wed, Apr 18, 2012, 2:16 PM UTC

mistercow wrote: post #14

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 cha…

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.)

Re: The Twitter "Patent Hack"

#18

Post by 3pt14159 » Wed, Apr 18, 2012, 2:16 PM UTC

mistercow wrote: post #14

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 cha…

They don't own the patents for use in offensive actions so the patents would serve no use to a patent troll. It would take the originator's consent.

Re: The Twitter "Patent Hack"

#19

Post by damoncali » Wed, Apr 18, 2012, 2:19 PM UTC

VanL wrote: post #17

mistercow wrote: post #14

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 cha…

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).

Re: The Twitter "Patent Hack"

#20

Post by 3pt14159 » Wed, Apr 18, 2012, 2:20 PM UTC

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.