Twitter has raised the bar for recruiting the best and brightest developers, and without any real costs. Instead, the company’s Innovator’s Patent Agreement (IPA) appeals to a cause near and dear to many of today’s best developers: Refusing to weaponize software patents.
The IPA published today by Twitter (on GitHub, no less) should ensure that Twitter can amass a defensive collection of software patents without giving its developers cause for alarm.
If you’re wondering how developers feel about software patents, Andy Baio’s take is instructive. Baio, a former Yahoo, helped Yahoo file several patents and has lived to regret it. “Yahoo’s lawsuit against Facebook is an insult to the talented engineers who filed patents with the understanding they wouldn’t be used for evil. Betraying that trust won’t be forgotten, but I doubt it matters anymore. Nobody I know wants to work for a company like that.”
Pragmatism Meets Idealism
As much as many developers would like to see software patents abolished altogether, it’s unlikely that’s going to happen. It’s certainly not likely enough that a company like Twitter can ignore the possibility that it will be a target for software patent suits.
Twitter can’t simply sit out the patent arms race, as much as it might like to. But what it can do is strike a policy that both protects the company and assures developers their inventions and cooperation won’t be used against them. Thus, the IPA.
A defensive patent portfolio, that developers can be assured will be used only to defend against software patent assaults or with their permission, strikes the perfect balance. The company doesn’t have to antagonize its employees, and it doesn’t have to be left totally vulnerable to lawsuits.
As Yahoo has shown, an assurance that patents will be used defensively has to be put down in writing. Management changes, sometimes very rapidly. A company’s position on software patents can flip overnight – so developers can’t rely on verbal assurances that software patents won’t be used offensively.
Why Every Company Should Adopt the IPA
The agreement put forth by Twitter, or something very much like it, should become industry standard for a number of reasons:
1. Companies that adopt the IPA are going to have a competitive edge over companies that do not. If a developer has the option to work on two interesting projects, with similar pay and perks, the knowledge that their work won’t be used against them in the future is likely to be a persuasive tie-breaker.
2. Companies that adopt the IPA are less likely to need incentive plans to convince developers to file for patents. As Baio wrote, Yahoo helped amass its arsenal with a “patent incentive program” that awarded “sizable bonuses to everyone who took the time to apply.” With an IPA in place, employers can make a much stronger case to employees that they should help with patent applications.
3. It could ultimately reduce the number of pure-play patent trolls that buy up software patents from failing and desperate companies. What’s the only thing worse than a competitor with a patent portfolio? A litigation company with no products but patent suits and every incentive to file nuisance actions, with little downside for failure.
4. The IPA can act as a poison pill for the patent portfolios of companies that don’t succeed. They can still sell off patents for companies that wish to have a defensive portfolio – but the patents couldn’t be used offensively without the inventor’s permission.
The Next Step
Twitter’s IPA is a good step, but the company should go one step further. Not long ago, a group of companies that were involved in Linux development created the Open Invention Network (OIN). The idea is simple: Form a patent pool that lets any company attacked use the patents for defense, but the companies in the pool cannot sue another for patent infringement.
A larger patent pool is in order, and Twitter could get the ball rolling. Any company that offers the IPA to its employees for all current and future patents should be able to join the patent pool. Assuming Twitter gets some traction with the IPA, it could start a trend that helps curtail the systemic abuse of software patents.
Ultimately, that’s good for Twitter – and for any company that looks to make its money by innovation rather than litigation. And that’s good for the entire industry.
