Special Clause 8 Episode: If X (Still Twitter through Sunday) Sues – with Gaston Kroub

A note from Eli: I was debating whether to title this podcast episode, “If Elon Musk Sues …” or “If Twitter Sues…”  I eventually settled on the latter.  However, I should have known better. Like any story involving Elon Musk, it’s impossible to fully tell it without focusing on him. After recording this episode last week about Twitter’s threat to strictly enforce Twitter’s IP rights, Musk announced and started executing a plan to rebrand Twitter as X over the weekend.  Both announcements – with IP angles – were prominently featured and discussed on national morning news.  Lots of free publicity for Musk’s platform.

As Gaston Kroub, IP Columnist for Above the Law and Founding Partner at Kroub, Silbersher & Kolmykov PLLC & Markman Advisors LLC, wisely notes on this episode, there’s a lot of marketing benefit that a company like Twitter can gain by sending a letter about its IP rights without ever filing suit.  If the mercurial Musk follows through, it definitely won’t be a run of the mill patent case.

Will Twitter’s meager patent portfolio doom Musk’s hopes of “strictly enforcing” Twitter’s IP rights? Eli is joined by return guest Kroub on this special episode to discuss how an unprecedented IP dispute between two of the world’s richest men might play out.

In response to Meta successfully launching Threads, Musk’s go to lawyer Alex Spiro sent a letter to Mark Zuckerberg expressing “serious concerns that Meta…has engaged in systematic, willful, and unlawful misappropriation of Twitter’s trade secrets and other intellectual property” and intention to “strictly enforce its intellectual property rights.”  Although the letter focuses on trade secrets, Spiro’s colleagues are likely busy mining Twitter’s patent portfolio.

Unfortunately for them, Twitter’s patent program last made news in 2012 when it launched the Innovator’s Patent Agreement.  The IPA was meant to show Twitter’s commitment to “employees that their patents would “only be used for defensive purposes” (if you didn’t read the fine print).  Unsurprisingly, this attitude led to Twitter barely obtaining any patents.  However, it has managed to keep some foundational families of patents – that make Twitter founder Jack Dorsey as an inventor – alive.  One of those patents even survived reexamination.  Another one those patents was recently issued with relatively broad independent claims.

Will any of this matter? What will it take for Twitter to file a credible claim suit? If Twitter does file suit, what will happen next?  What will it take for these billionaires – who previously challenged each other to a jiu-jitsu-match – to settle? Is this IP dispute just a scheme by Musk to make Twitter someone else’s problem?

As Kroub says, “anytime we’re talking about a patent case where there’s literal discussion of whether the two owners of the company are going to engage in some kind of MMA battle, I think we’re in for a lot of interesting possibilities going forward.”