Matt Galligan

Software patents are quite a polarizing, but most of the tech influencers seem to have very strong opinions against them.

“I believe software patents are an invalid construct – software shouldn’t be able to patented.” - Brad Feld

“I believe that software patents should not exist. They are a tax on innovation. And software is closer to media than it is to hardware. Patenting software is like patenting music.” - Fred Wilson

“Software/internet/hardware patents have no benefit to society and should be abolished.” - Chris Dixon

There’s no question that when software patents are used offensively, they can be very damaging to truly innovative companies. The most unfortunate consequence of current software patent law can be summed up with a definition from Wikipedia on the Patent Troll:

Patent troll is a pejorative term used for a person or company who buys and enforces patents against one or more alleged infringers in a manner considered by the target or observers as unduly aggressive or opportunistic, often with no intention to further develop, manufacture or market the patented invention.

A couple examples of trolling recently include: Honeywell suing innovative Nest, Yahoo suing Facebook over basic social networking patents, or a Troll suing Google and Groupon.

So what happens when a forward-thinking company like Twitter (a company with investment from Fred Wilson above) patents something like the “Pull to Refresh” action seen in many mobile applications? The reactions were as expected. Because there have been so many prominent companies being sued over patent infringement lately it’s understandable to assume that anyone using the pull to refresh action in their app could be targeted by Twitter.

But this morning, Twitter announced something very forward-thinking in the world of software patents: the Innovator’s Patent Agreement. In the announcement blog post, Twitter states:

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 summary, Twitter said:

• Patents suck, but they’re here now and we still need to protect ideas
• Don’t depart from the vision of the patent creator
• Don’t use the patent in ways the patent creator didn’t intend
• Don’t use the patent in offensive litigation, saving it for protection only
• If a patent is sold along with the sale of a company, this agreement goes with it

This is absolutely fantastic. The state of affairs in the patent world means that without comprehensive reform around we still have to live in a world with patents, and companies with novel intellectual property still need to protect those ideas from predators. While I don’t see many companies that will likely sign on with Twitter’s approach, it’s certainly a band-aid to the current situation - a direction that makes my skin crawl far less. Companies that are the “good guys” with IP will be the ones that adopt this.

We’ve been struggling with the potential use of patents at my company Circa as we have a good amount of patentable intellectual property. The struggle has come directly from “ok, we’re going to use it for good now, but what if a company that might acquire us wants to use it for evil?”. The Innovator’s Patent Agreement eliminates that struggle.

This still doesn’t address the trolls, so I’ll echo my peers and say that I’d like to see software patents go away entirely. However, thanks to Twitter we now have a solid step in the right direction towards the responsible use of patents.

Sidenote: they’ve even put up the “IPA” on Github!