Standing Up to a Dangerous New Breed of Patent Troll
blog.cloudflare.com
blog.cloudflare.com
BUT (and it's a big but, Sir Mix-a-Lot) ...
> These opportunities remain open as long as Blackbird's case against Cloudflare is still active.
So, what will likely happen is that as soon as Blackbird spots this blog post and realize that Cloudflare has no intention of settling, they withdraw their suit, and that means Cloudflare doesn't have to pay anybody a prior-art bounty.
That would actually be in keeping with a patent troll's M.O. They don't want to waste their time actually pursuing lawsuits against companies that are willing to push back. Instead, it's much more lucrative for them to shake down easy targets and reach a quick settlement.
Patent troll invalidation bounties might become a new thing. The more ways to slay the trolls the better.
As someone who does not have a dog in this fight, I see no reasons to help them when it's blatantly obvious they are just fighting for themselves.
They're a business, they're supposed to fight for themselves. And the bounty is the reason to help.
I get the feeling that they won't be getting sued by patent trolls again for a long time, they know that, and they'll be grinding this one into the ground as far as possible.
a) it can be structured like a credit union or something and owned by its members (reduces incentives for it to grow beyond what's necessary)
b) make it retroactive i.e. you don't have to already be a member to get protection. you can choose to buy in after you've been sent a letter
c) a protection pool of sufficient size and resources might do enough to invalidate so many patents that trolling simply becomes unprofitable. EDIT: Especially if suing a pool member poses an existential threat to the troll in the form of invalidating their entire portfolio. As Cloudflare have shown, you only need one party to stand up for themselves and contest the patents. In that case, premiums go down long-term
This is obviously different from patent pooling and cross-licensing agreements companies use to defend themselves against other practicing entities.
So why would anyone buy in before they get a letter, or maintain their membership once they're no longer in court?
Plenty of people have already gotten a letter; if they all pooled their resources they'd have a decent defense fund already.
> , or maintain their membership once they're no longer in court?
This one, I agree, is harder. Best I can propose is a minimum 5 year membership once you've been sued. Or tweak it some other way so that membership is slightly cheaper, or about as much as, settling.
The ultimate protection racket! "You've got a nice product here, shame if a lawsuit happened to it..."
Wouldn't you know, it already exists: https://en.wikipedia.org/wiki/MPEG_LA
The key distinguishing factor here is the protection pool actively seeks to invalidate bad patents. It could also lobby for patent reform. By doing so, it makes patent trolling less profitable and thereby, reduces the need for itself in the future. It's like a health insurance company funding research into perfect health and immortality (but more achievable).
Per my understanding, patent pools also don't offer any protection against non-practicing entities, correct? Since patent trolls don't use any patents themselves, a defendant in a patent suit can't assert any of the pool's patents against the troll in a countersuit.
This appears to be more than a strategic move for this particular case on the part of Cloudflare. Cloudflare is hoping to build a reputation as 1) aggressive, 2) vindictive, and 3) successful. Believe me, other NPEs will take note and will think twice (or thrice) about suing Cloudflare out of fear of multiple defensive IPRs aimed at not only the patents in suit, but all patents utilized by the NPE in past and current litigation and licensing efforts.
The NPEs, generally, have very low risk tolerance when it comes to actions which may invalidate their money-makers. Thus, Cloudflare is hoping to get blacklisted. Just look at how successful Newegg and Rackspace have been with this strategy.
https://www.cloudflare.com/priorartsearch/
Any idea who are the Cloudfare outside attorneys?
> Step 1 — Cloudflare will fight this case in the courts
> Step 2 — Cloudflare will fund a crowdsourced effort to find evidence to invalidate Blackbird’s patents… all of them
> Step 3 — Cloudflare will investigate Blackbird’s operations to develop facts that support our arguments in the litigation and expose how patent trolls really operate
> Step 4 — File complaints against Blackbird attorneys by bar association disciplinary counsel in Massachusetts and Illinois
I have no sympathy for patent trolls any more than I do other extortionists - whether "technically it is legal" or not.
"""Blackbird combines both a law firm and intellectual property rights holder into a single entity. In doing so, they remove legal fees from their cost structure and can bring lawsuits of potentially dubious merit without having to bear any meaningful cost. """
Prenda Law already patented that breed. Expect infringement suit shortly.
(Also, Prenda Law were actively inducing the infringement that thhey were prosecuting, and inventing shell companies as fake clients to conceal their own interest in the litigation.)
Clearly, the Prenda-Structure patent reads on this infringing Blackbird organization.
(Also, it was a joke.)
Really hope these new tech companies can "disrupt" this kind of practice, but they do have to get together and agree on some sort of action. Newegg and cloudflare fighting back is great, but if facebook, Netflix, Apple, Microsoft & co join the cause, I'm sure trolls will have a good reason to, well, not troll.
If there is a place where government regulation can do some good, this might be it. The combination of these two kinds of company represents a moral hazard. There is a precedent for this kind of regulation, which mandates the separation of certain kinds of companies:
https://en.wikipedia.org/wiki/Separation_of_investment_and_r...
EDIT:
increasingly in the world of software or tech patents, the trolls rely on the broadest possible interpretation of vague or generalized patents to sow as much uncertainty as possible.
I've run across people involved with patent law here and on reddit, and they seem to get triggered by laypeople ridiculing the vague and abstruse nature of patents. (Really, go and read some! Try searches for video on the Internet!) I find that also weird, in the same way that a lot of legal stuff is weird.
And about 70% of all patent infringement claims are filed by patent trolls, a share that has more than doubled in recent years. It is estimated that litigation initiated by patent trolls in U.S. courts cost companies as much as $30 billion in direct costs, a number that has increased more than four-fold over the last ten years.
Interesting statistic. If the preponderance of patent claims run counter to the original intent of the mechanism, then something is clearly wrong.
Are "legal fees" that much more expensive than the cost of actually doing the legal work required?
A lot of companies have in-house lawyers, what's the difference between a NPE with in-house laywers to file patent suits, and a law firm that acquires patents to file patent suits? Or even, the difference between that and an NPE hiring an outside law firm which charges a very low margin (possibly with a contingency fee as well)?
Isn't government regulation the cause of this problem? These trolls only exist because there's a government patent system.
While there aren't any easy tactical solutions and a policy fix is a dim hope, we should be able to at least partly solve the problem by training an AI to do automated and thorough prior art search and analysis relevant to a patent, so a lot of the legwork of a patent litigation threat becomes orders of magnitude faster and cheaper, and it becomes vastly easier and less intimidating for a trolling target to respond to a patent threat like this, and quickly get their focus and resources back to developing their technology. Software eats patent attorneys, and reduces the burden of patents on the technology community.
(disclaimers: I am a patent attorney and I'm currently working full-time on coding a patent search & analysis AI service, this is not legal advice, etc.)
2. Patent troll + Law firm is not a "dangerous new breed". This has been happening for a long while now.
3. It seems strange to complain about the being sued for patent infringement while owning '150' patents. Do you agree with patents or not? If you agree, then being sued for patent infringement is part of it. If you disagree, why invest so much? I understand the argument of patents being defensive, but, does that really help in a world of patent trolls? More likely, a company eventually goes under and the patents are acquired on the cheap - by a troll.
4. I think the "we will pay you a bounty to help make our problem go away" approach is interesting and I hope it works. ...but it's very self serving. Maybe just pay a law firm $50,000 to invalidate the patent rather than making a contest out of it.
To be fair, I really don't understand the concept of a software patent. If I can implement it then it is fair game.
They abused the system for their own gain, while at the same time "retarding the development of aviation".
"The Wrights' preoccupation with the legal issue hindered their development of new aircraft designs, and by 1910 Wright aircraft were inferior to those made by other firms in Europe. Indeed, aviation development in the U.S. was suppressed to such an extent that when the country entered World War I no acceptable American-designed aircraft were available, and U.S. forces were compelled to use French machines."
"The lawsuits damaged the public image of the Wright brothers, who previously had been generally regarded as heroes." [1]
[1] https://en.wikipedia.org/wiki/Wright_brothers_patent_war
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2355673
In fact, a lot of airplane innovation was happening in the US during that era despite the patent being in force. For instance the seaplane was invented in the US (by Curtiss, the Wrights' most bitter foe.)
Also their patents were challenged repeatedly and, despite being interpreted broadly, upheld repeatedly because they actually were that much of an improvement over the prior art.
3. They don't seem to be against patents, just against non-practicing entities. Did you even read the article?
Because inventors want to invent things, not prosecute patents, and making patents transferrable allows them to make money from inventions without having to accept any of the headache of patent defense, which is a distraction even when (as you will practically need to) you hire counsel to do the actual legal work.
Interesting. Seems to be more of a long term solution than just "We'll stand up for ourselves because we can"
Patents are ideas. Two (or more) people can independently come up with exactly the same idea, sometimes in very different contexts. The patent system rewards the person who files a patent for it first, and in fact, for the patent troll, it's particularly lucrative when other people execute successfully (which generally means they've actually contributed something of value to society).
A "patent troll" is not just non-practicing, but also someone who didn't create anything of value, but wants to charge tolls anyway.
In all seriousness, good move on fighting back and actually standing against those bullies. Naming the individuals and companies involved could maybe get you in legal trouble? Anyway, surely you've already discussed this internally and decided to name them. Honestly, I like it. It's probably the only way to stop patent trolls: Get their names dirty on the Internet, which never forgets.
I wonder if moves like this are known to people outside legal and tech. My guess is the public in general has no idea of these practices, which makes it harder to fight against because there is almost no reaction / backlash. (I'm not from the US, maybe people do know about them).
http://web.archive.org/web/19970606225031/http://www.osf.org...
Basically, you could submit annotations to be placed at any point in the document, and you and other users of the annotation server would see them (literally inserted into the HTML file). It was a crude and slow system, but the authors planned to replace it with a Java applet in the future. According to them, “since it is expected that the Java run-time system will be an integral part of all future web clients, this remains a pan-browser solution.”
So many failed dreams… not just Java, but the whole idea of a user’s browsing experience being theirs to command and design, with the server’s response only a suggestion. Maybe I’m being overdramatic. Browser extensions, custom CSS, user scripts, etc. can do the same things today – and of course they’re far more capable, in terms of the range of functionality exposed, and indeed far more popular – but I still feel like there’s something missing. Semanticity, maybe. So many pages these days are just blobs of minified JS and CSS that (intentionally or not) prevent you from understanding the structure of the document without extensive reverse engineering.
…anyway, I’m getting off topic. I think it’s prior art because it satisfies all the conditions of at least some of the claims:
1. A method for providing an internet third party data channel, said third party data channel being established within an existing data channel between an internet server and an internet client, said third party data channel connecting a data source distinct from said internet server to said internet client, said method including the steps of:
existing data channel: the HTTP connection
internet server: original website; internet client: user’s browser
data source: annotation server’s repository of data
third party data channel: connection between proxy and annotation server
a) using a processing device distinct from said internet server for monitoring said existing data channel for a data communication having a predetermined property, said data communication having an intended recipient of one of said internet server and said internet client,
processing device: HTTP proxy (in the paper, it’s separate from the annotation server, one of those trivial details that can make a big different w.r.t. patents)
data communication: HTTP response
predetermined property: various; probably it checks the HTTP status code, though I haven’t checked the implementation
b) upon detection of said data communication, performing:
b1) the step of accessing said data source to obtain third party data,
(querying the annotation server)
b2) a step selected from the group consisting of the step of modifying said data communication in response to said third party data and the step of replacing said data communication in response to said third party data to obtain a resultant data communication, and
(modifying the response to add annotations)
b3) the step of sending said resultant data communication to said intended recipient.
(returning it to the user)
Though, while writing this up, I realized there’s one potential problem. At a literal level, the proxy does not “monitor” packets waiting for a HTTP response to the browser. Rather, it receives requests and makes its own request to the server; arguably that is not an “existing data channel”, and arguably the site’s response is directed towards the proxy, not the browser.
Luckily, the patent’s description seems to explicitly disclaim this interpretation:
For example, a proxy can be thought of as an application level router, not contributing to the data stream being transported through it. This logical transparency of a proxy is maintained even if the proxy, in fact, forwards cached copies of requested objects to a client.
Can't Cloudflare still have their lawyers go look at the original patentees for possible infringement and file a suit against them?
Well this is pretty rich.