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by adam mathes
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Fixing Software Patents Virally

Some tech companies tell their employees in a non-binding, unofficial, private way that the patents they create will only be used for defensive purposes.

And this is usually true, except for when it isn’t.

Twitter’s Innovators Patent Agreement makes that claim explicit.

Though it may not make it anymore valid.

While the agreement makes it seem like Twitter’s heart is in the right place, there are loopholes so big you could drive a truck through them. What counts as a “defensive” purpose is very, very, very broad.

More importantly the agreement does not give any other entities legal right to use inventions described in those patents, as far as I can tell, regardless of the suggested promises not to sue people over it “offensively.”

A suggestion you probably will not file litigation, except under some circumstances, is not the same thing as a patent license.

A Viral Defense: GPL Style Patent Licensing

Imagine if industry practice was to offer a royalty free license of their patents to to anyone that also licenses their patents with the same royalty-free license.

The license would be valid only if the licensee’s patents were made available in the same royalty-free manner, otherwise the license is revoked.

A sort of GNU Public License for patents.

This would still allow patent holders to use patents defensively in lawsuits but grant “benign” patent holders - or those that opt-out of software patents altogether - legal use of the patents, not a non-binding promise that they might not be sued over them.

More interesting is that it encourages entities to “disarm” if they want protection from infringing on your patents by properly licensing them.

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Of course, any drastic action like this by a major player in the technology patent world seems exceedingly unlikely.

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Disclaimer/hypocrisy notice: I was previously an employee of Google and my name is on a number of patents that the company owns.

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