Stephen Foley: Twitter has the wrong answer to the problem of technology patent wars


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The Independent Online

US Outlook Having revolutionised the way we share news and links on the web, the company now wants to revolutionise the way we think about intellectual property. I fully expect Twitter to unveil a new corporate slogan: Do no patent evil.

Whether through sanctimony or cynicism, Twitter has promised to sit out the patent wars raging in tech. In future, it has told its engineers and developers, it will only use patents on their inventions "defensively". That means it can only be used in a lawsuit if Twitter has itself been sued, or is threatened with a lawsuit.

It is the equivalent of a "no first use" nuclear policy. The exception is if the inventor him or herself gives the say-so for an infringement suit. Twitter says everyone should adopt the same policy.

With the billionaire founders of Google and Oracle having to take time out from running their companies to face off in a San Francisco courtroom, and with desperate old Yahoo using an attic-full of dusty patents to try to wring money out of Facebook, you get public relations kudos right now from promising to rise above the fray.

"One of the great things about Twitter is working with so many talented folks who dream up and build incredible products day in and day out," the company said, announcing its "Innovators Patent Agreement" (IPA) in a blog post. "Like many companies, we apply for patents on a bunch of these inventions. However ... we sometimes worry that they may be used to impede the innovation of others."

Now – no one doubts that the US patent system is a catastrophe of profit-sucking proportions.

Overlapping patents covering the most straightforward of innovations are treated like chips in a multibillion-dollar poker game. Mega-corporations such as Apple, Google and Microsoft buy them in bulk from lesser tech companies, and barter them for licensing income in deals cooked up by their legal and finance departments. The use of patents is about as far removed from the reality of an inventor's work as a synthetic collateralised debt obligation was from the mortgage on your parents' ranch house in Wyoming.

No wonder developers and engineers, whether they work inside the Silicon Valley behemoths or in the burgeoning cluster of New York start-ups, are so appalled.

But a "no first use" pledge is a terrible way to solve the problem of sub-prime patents and end the over-litigation of patent claims. Fixing that requires narrowing what can be patented and introducing damages caps and beefed-up arbitration procedures.

What will definitely "impede the innovation of others" will be a collapse in protections for intellectual property, without which the incentive to invest and to invent is seriously diminished. That is what will happen if Twitter's proposed IPA becomes industry standard.

We are already witnessing a generational erosion in support for intellectual property, in principle. Software developers and engineers, steeped in the benefits of collaboration and open-sourcing, might be the people least likely to want to get offensive with their patents. Twitter's IPA roused a lot of cheers in the tech world, and the company is probably right to judge it will help to woo developers away from the doers of patent evil, like Yahoo and Google.

But the whole idea is 180-degrees wrong. Twitter says patents should only be used "defensively"; in fact, they should only be used "offensively" – when a company has genuinely suffered the theft of its idea and genuinely suffered loss; not just because it needs some chips at a negotiating table.

"Do no patent evil" will be a great slogan. It's not a great idea.