I admire Twitter for adopting their new IPA (Intellectual Property Agreement). I really do. It’s just that it won’t work.
It’s clear why one should admire this. We all know there are too many patent sharks, too many patent protection rackets, and too many offensive patent wars. But now it’s as if Twitter suddenly got the noble idea, “Hey, let’s not keep making this mess worse; let’s promise our inventors only to use their patents for ‘defensive purposes’ unless we have their express permission.” Then, they put the terms of this new IPA on GitHub and invited other companies to join.
But the devil is the details. The way the Twitter IPA defines “Defensive Purpose” pretty much rules out a lot of companies signing on.
What will stop some companies from following Twitter’s IPA is that it would count as “offensive” many actions that really, pragmatically, are defensive in nature. If you have a unique method for creating something and then an upstart competitor copies your technique and sells a strikingly similar product, data, or service, and they start “eating your lunch,” sometimes your only recourse is to sue them for reverse engineering your method. In such a case, most reasonable observers would say you are being defensive.
I’ve seen cases where an ex-employee goes to a competitor and, taking some of their former employer’s data and/or source code with them, quickly reproduces near-identical data feeds and even whole Web sites (complete with the same data model and GUI, to the point of including the same minor flaws and typos that are in the source that they stole). Doing this, they instantly create, overnight, with near-zero effort, what took millions of dollars and dozens of man-years to create originally. If someone does that to you, you have every right to sue, right?
But suing them on copyright infringement alone is hard. You have to prove they took the data and that’s a long haul. How about if you also have a patent on what was ripped off? You ought to be able to just demonstrate they are “doing the same darn thing” as your patent, and then the court will order them to stop (and perhaps pay a settlement). This is what patents are for!
But if your patent on the ripped-off tech was under Twitter IPA, and if the infringer had never sued anybody offensively before, you’d be stuck. Merely because they haven’t threatened to sue you (or anybody else) previously, means that your suing them doesn’t count as “defensive.” (Consider that if they’re ripping off your business, they’re not going to sue you before you sue them. No, they’re happy to stay out of court and keep stealing your lunch.)
As a result, you’d have to ask the permission of the employee who invented the patent, if they wouldn’t mind your suing the blatant infringer. Maybe they’d be sympathetic. Or maybe they’d be already on salary with the infringing company. Or maybe they’d be unreachable, (on a Himalayan trek, or in drug rehab). You can’t count on getting their blessing when you need it.
So, suppose you’re the CEO of a company and in anticipation of this kind of imbroglio, your General Counsel strenuously advises you not to do the Twitter IPA by saying, “You answer to the Board of Directors to protect shareholder interest and you can’t sign this.”
Twitter needs to fix this aspect of the IPA or else it won’t go far.