Twitter’s creative approach to IP ownership has its critics

On April 17, Twitter announced its new Innovator’s Patent Agreement (IPA) (draft text).

Twitter’s take:

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 spite of the initial applause greeting Twitter’s approach, analysts have now taken a more cautious look.

1. Twitter has included exceptions to their rule of using patents only for defensive purposes. For example, as pointed out by Michael Kanellos in Forbes, Twitter reserves the right to sue a company (first) that has filed its own patent infringement suit in the past ten years.
2. It is possible “inventor’s permission” now become a new class of intangible property, inheritable, for example.  Can it be valued?
3. Louis Carbonneau, an IP lawyer, points out the obvious: the value of the IP to Twitter has been diminished by carving out rights that heretofore belonged to Twitter. Did Twitter investors have a say in this?
4. Mason Boswell, a patent lawyer, suggests, at best, the agreement displays a fundamental misunderstanding that a patent is an offensive tool, “a right to exclude others from practicing the invention that is the subject of the patent.”
5. Finally, Micah Stolowitz, a patent attorney in Portland, OR, opined that if Twitter were serious about limiting use of patents to defensive purposes, they wouldn’t go the patent route at all.  Rather, they would immediately publish their findings, rendering the innovation unpatentable.