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Comment by egdod | Hacker News Reader

I’m a patent attorney. Honestly this is pretty impressive—total scorched earth tactics against ALL of the entity’s assets? I don’t think I’ve ever seen that before, and I bet it makes some people think twice.

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Not only their assets, but also their right to practice as lawyers... the founders were reported to bar association in two states for ethics violations...

"what safeguards should be put in place to make sure that attorneys who take the oath are held to a standard beyond mere greed or base opportunism"

Cloudflare really is making the world a better place in this case, by fighting back against the kinds of legal weasel who exists purely to be a money leech with no benefit to anyone but themselves.

Unfortunately, the challenges before the bar associations were apparently not successful. Their wording is careful since "disciplinary proceedings in front of bar associations are generally confidential", but they do remark that "it will take a broader change in orientation by these professional associations" before even obvious patent trolling is considered legal malpractice.

We already have barratry laws on the books. Someone just needs to enforce them. Advancing disingenuous arguments in court should be an automatic year's suspension.

What is a "disingenuous argument?" Is it like reading the phrase "the right of the people to keep and bear Arms, shall not be infringed" to mean something less than that based on a clearly set-off explanatory clause in front? (Sorry, I couldn't resist.)

The standard for permissible arguments in court is having a good faith basis in law or fact, or a good faith argument for extending or changing the law. It's not clear to me that's wrong. Fee-splitting with non-lawyers is the bigger issue. That is impermissible for all sorts of good reasons.

Court officers take an oath not to waste the court's time. Knowingly advancing baseless claims that are only meant to scare a victim into settling is a violation of that oath. This isn't hard stuff. The priesthood just doesn't want to hold its members accountable.

My point is that "disingenuous" sweeps quite a bit more broadly than "baseless."

If it was so obvious, why did you omit the clause?

> Fee-splitting with non-lawyers is the bigger issue. That is impermissible for all sorts of good reasons.

Out of (sincere) curiosity, what are some of those reasons? Thanks.

What some of these outfits are up to is more than just barratry, it’s extortion and racketeering. I’d like to see them brought up on RICO charges.

Patent trolling isn’t considered improper at all. I would hope that the complaints to the bar had a little more in them than “this lawyer is doing something we don’t like but that isn’t actually against the rules.”

Don't read too much into my paraphrasing, as per the article they did in fact raise substantiated malpractice complaints. The troll had entered into a forbidden profit sharing arrangement with a non-lawyer, and was being purposely ambiguous if it is a law firm at all.

Per the post, their complaints were based on rules prohibiting attorneys from splitting contingency fees with non-attorneys. The patent they were asserting against Cloudflare was purchased from the inventor for $1 plus “other good and valuable consideration.” As part of their defense to the ethics complaint Blackbird asserted that they do not use contingency fee arrangements for the patents it acquires, but do something "similar."

> Patent trolling isn’t considered improper at all.

That's for the bar to decide. But what do you mean "... at all" ?

The sad truth is that many hard working companies have had to fork over thousands of dollars to law firms that happen to hold patents but which don't have any means or even intent to deploy the inventions in those patents. These law firms simply exist to extract money by virtue of holding vaguely-worded garbage patents. THAT's what a patent troll is and THAT is improper.

What I mean is that it isn’t against the rules. You’re welcome to think it’s a little shady (and I won’t disagree), but it’s not improper.

What’s improper about creating liquidity in the market for inventions? And patents don’t require the holder to make or sell anything—they give the holder the right to prevent others from doing so.

There's a big difference between legal and ethical.

And it's not creating liquidity in the market for inventions. It's creating liquidity in state-sanctioned and enforced monopoly rights of inventions.

Without that monopoly, there wouldn’t be much of a market for inventions.

Of course there would, there's a lot of money to be made from inventing something, even without a patent.

And the biggest companies in the world aren't the biggest because they have patent protected monopolies.

Some people own houses that they don't even intend to live in. Then they rent out those houses to other people who actually want to live there. Improper?

Rather different things. The right to own property and do what you want with it, outside of a relatively limited set of prohibitions, is a fundamental right that forms the basis of our economy. Patents are an artificial construct created for a specific purpose with specific limitations. They are meant to encourage technological innovation by providing temporary Government protection for the inventor in exchange for a disclosure of the details of the technology. For an entity that has not invented anything and has no intention to do any research or sell any products to use them to extort rents from companies that actually do those things is a distortion of the purpose of the system.

no, this is similar to owning a plan for a house, then charging rent (without ever having built the house) to anyone who happens to live in a house that looks a bit similar to the plan.

IP isn't a tangible asset, so the analogy is unsound.

I think it's improper for someone not using IP or not the original developer of IP to be able to make IP claims. If you didn't develop the tech or aren't using the tech, you shouldn't have any claim over the usage of that tech.

The same goes for "defensive" patent strategies. They're an affront to the spirit of patents.

> I think it's improper for someone not using IP or not the original developer of IP to be able to make IP claims

Congress, the Supreme Court, and hundreds of years of precedent would disagree.

   assert_eq!(legal, moral || ethical || proper)
   > thread 0 panicked

Do they also prevent anyone else from living in houses?

>> Patent trolling isn’t considered improper at all.

>That's for the bar to decide.

and the bar decided those guys did nothing wrong ...

Doesn't matter if the disciplinary action is successful, the fact that cloudflare seizes the initiative is impressive.

This is such a great feel good story. I've been reading for a decade about the injustice of patent trolls bullying and extorting startups for money, sometimes killing them. Hearing about NewEgg fighting back gave me some hope, but this scorched earth strategy from Cloudflare read the same to me as watching an epic sports play. Well done Cloudflare, once again you have my respect and gratitude. There's nothing better than a bully getting theirs.

They poked the wrong dragon. It’s impressive that CF invested the resources in fighting them. What’s unfortunate is the number of small companies that have been killed by patent trolls.

Well when lawyers think they are the smartest ones in the room but are in reality dumb enough to present starving engineers and entrepreneurs with a "life or death" dire problem to solve, what did you expect to happen?

For us just to sit back while you guys prostitute us for all our worth so you can pay for your 3rd wife's divorcing you?

That's generally not what they do. They deliberately structure it not as a "life or death" problem, but rather a "nuisance or larger nuisance" problem. The expected response (which generally happens) is that people choose "nuisance".

Tactically though, doesn't this mostly just benefit CloudFlare?

They have very effectively demolished one patent troll. This will ensure that only people who are very sure of the validity of their patents will use them against CloudFlare. Does it make any other targets more scary? Is there that a patent troll wouldn't do now that they would have done previously, apart from attack CloudFlare specifically?

One less patent troll is definitely a good thing, and I'm always happy to see someone fight back. I think we should be careful not to assign too much scope to the victory though.

The example might encourage other companies to do the same. Then it would have a real impact for everyone.

It certainly benefits Cloudflare by making any patent troll think twice before suing them, but to a lesser extent, it also benefits the entire tech industry:

Cloudflare set an example that anyone with similar resources can follow.

And Cloudflare shared many of the results of their work, including an extensive prior art portfolio. This can be useful to anyone who gets sued for these and possibly similar patents.

I really hope more companies will follow Cloudflare's example.

How is this patent troll demolished? Won't they just go acquire more patents for $1 + 'other valuable considerations' and continue on?

Many of the patents in their portfolio now have publicly-accessible crowdsourced prior art pools that defendants can use to invalidate more patents. They can still buy new patents, but because of what has already happened, they are down on staff. They have not been vanquished, but they have been weakened.

I'm aware but it isn't hard to interpret this as "they lost nothing more than the use of some number of $1 patents and the time it takes them to go find more $1 patents".

That doesn't seem like that big of a setback.

That fact that the company dropped from 12 people to 3 is a big tell. No new cash is coming in. They can’t get ppl to work for free and hope to get a nice big cash infusion soon (in the form of patent royalties).

Under game theory, the best response is tit for tat - it would presumably help for the entire industry

https://www.investopedia.com/terms/t/tit-for-tat.asp

Yeah, this wants to read like "oh hey! Look at all the neat work we did to stop patent trolls!"

But in reality it's a lot more like listening to Adrian Veidt after he pulled off his scheme in Watchmen. Diabolical, but you can't help but respect them for it.

Cloudflare didn't kill a million people, though. But I would definitely want to see them kill a million patents.

Hah, no, they certainly didn't. That's a bad comparison for me to make.

My point is that this is a pretty transparent flex of corporate might. It's hard to escape the subtext of "Fuck with us, and we will grind you into the dirt".

It's probably not something a smaller company might be able to afford, and that's the entire problem with the patent troll phenomenon: it doesn't matter how valid their patents are, they're counting on it being too expensive for their victims to fight it. If settling is cheaper than fighting and winning, the troll can continue to extort others. We need companies with the means to do so to take the effort to actually defeat and invalidate the patents if we want to stop the trolls. It's all part of US justice being for sale rather than equally distributed.

What would be better if there was a legal defense fund that were to support small companies and do this for them. Or better yet: a legal system that doesn't allow this sort of predatory behaviour.

I agree with everything you just said, 100%.

Still doesn't change the fact that I wouldn't want to get on the wrong side of Cloudflare after seeing this.

That's the only thing that works with thugs.

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