[jrockway]

Won't the breach-of-contract damages be a lot less than the awards from using the patent offensively?

It just seems to me that if some evil company buys the patents, they're not going to respect the agreement the inventors and Twitter signed. For the agreement to cause financial damage, the inventors would have to sue the evil company that obviously has a ton of lawyers. Can you afford to sue Microsoft? I can't.

[Kliment]

Well, the inventors have the leverage in this case, because they can license the patents to whoever is being sued. The whole point of the patent hack is that the inventors continue holding limited rights to the patents, that is, the acquiring company does not fully control them. They can breach contract all they want, but their offense can be neutralized by the inventors by simply licensing to the victim.

[scromar]

Edit: I was wrong here, see the reply below.

No, the inventors don't have the right to license the patents to whomever is being sued. The twitter agreement gives all rights in the patent to the assignee, just like any other assignment, but it adds on the clause that the assignee agrees to get permission from the inventor if they want to sue offensively with the patent. In the future, if the assignee (whoever it is at that time) decides to sue offensively without the permission of the inventor, the assignee can (and indeed they have the right to). The inventor would then have a cause of action for breach of contract against the assignee, but who knows what that would amount to.

[shasta]

Did you actually read the agreement? Kliment is correct. The inventors are granted an irrevocable license to sub license the patent to any target of offensive use of the patent. IANAL, but presumably existing licenses on a patent are attached to the patent and are not just a contractual matter between the licensee and original patent owner.

[scromar]

You are right. The fourth paragraph does give some teeth to the agreement. However, the broad language of the second paragraph still gives the assignee a lot of wiggle room to argue that they are not breaking any promises made.

[raldi]

I don't see the nature of the teeth you refer to, unless everyone's making the assumption that all patent inventors are noble and cannot be convinced, at any price, to license their patents for evil purposes.

[fredwilson]

yes, exactly. that is the thing that many people are missing about the elegance of this hack

[damoncali]

Wouldn't this "evil" company just buy out or otherwise pressure the inventor? I don't see how that works.

In one case, evil company buys patent, and pays off everyone involved to drop this agreement. Now we're back to normal.

In another case, evil company can't get eveyrone to do that, so the transaction doesn't happen.

This seems exactly the same as saying "We won't use our patents offensively, and we won't sell them." No legal documents required.

[Kliment]

Well, if the inventor does not want to be bought out, and does not want to give up the agreement, the patent cannot be used offensively. This reduces the value of the patent as a weapon. This is exactly what this agreement is meant to achieve.

[raldi]

Replace "inventor" with "inventor's employer", and your comment refers to the status quo. Are we supposing inventors to be resistant to greed?