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The “smartphone wars” have been in the news for a while now and have spawned a host of comments about the use of patents and the amount of litigation in this arena. Amongst all this commentary you may have come across Twitter’s Innovator’s Patent Agreement (the IPA). Wired recently carried an article by Ben Lee who is the head of litigation and intellectual property at Twitter. The article can be seen here and the agreement itself is also available here.

Twitter suggest that they don’t want patents to impede innovation and the IPA is their answer. According to Twitter, the IPA essentially provides “a promise not to sue anyone unless for a defensive purpose”. We thought we’d take a closer look at the IPA and see whether it can deliver on its promise and what it means for Twitter.

The first thing we did was to run a search of the espacnet database with Twitter as the patent owner to see how many patents we’re talking about. The results of this search raised an eyebrow or two as it appeared that Twitter is named as Applicant on only a single US patent application (US2012089681A: there are apparently no foreign equivalents to this application). We then undertook a further search on a subscription database which uncovered a further patent application (US2010199180A)  that is now in the name of Twitter and a granted US patent (US8230350B) that is owned by TweetDeck (itself owned by Twitter).

So, two US only patent applications in the name of Twitter and one granted US patent in the name of TweetDeck. It appears that Twitter has a small patent portfolio! * And, therefore it looks like the IPA will have limited scope for Twitter.

Turning to the agreement itself we note that Clause 2 reads as follows:

2. Company, on behalf of itself and its successors, transferees, and assignees (collectively “Assignee”), agrees not to assert any claims of any Patents which may be granted on any of the above applications unless asserted for a Defensive Purpose. An assertion of claims of the Patents shall be considered for a “Defensive Purpose” if the claims are asserted:

….(b) against an Entity that has filed, maintained, or voluntarily participated in a patent infringement lawsuit against another in the past ten years, so long as the Entity has not instituted the patent infringement lawsuit defensively in response to a patent litigation threat against the Entity;…..

What this apparently means is that, rather than being limited to using its patent portfolio in an entirely defensive manner (e.g. once Twitter is already on the receiving end of an action), Twitter can actually start an action against another company if that company has filed a lawsuit (i.e. started an action first) within the last 10 years!

So, all in all, the Innovator’s Patent Agreement doesn’t really appear to amount to much of a big deal for Twitter itself. Whether the agreement has wider relevance seems to rest on whether other companies adopt this model.

As a final thought, it would be interesting to know if TweetDeck has signed up to the Innovator’s Patent Agreement.

Mark Richardson    5 March 2013