Patent troll Sable pays up, dedicates all its patents to the public
blog.cloudflare.com
blog.cloudflare.com
Kudos to the likes of Cloudflare and (yesteryears’) Newegg that fought these trolls.
I shudder at the thought of how many of the existing legacy industries outside the computer space are still riddled with these patent portfolio companies :(
Though keeping US entities from importing copies against US patents isn't really something I could stop.
I suspect the only thing that would ever convince China to take IP seriously is if China's own companies would profit more from stronger IP protection.
It’s cool in principle. It doesn’t actually work at scale. It barely works with 100 people. Still a fan?
As such, True Scientology has never been tried! Maybe we ought to try it, so that we can have total freedom and truth?
What about Vietnam and Cuba?
> In the United Kingdom, he was called "Slater the Traitor" and "Sam the Slate" because he brought British textile technology to the United States, modifying it for American use. He memorized the textile factory machinery designs as an apprentice to a pioneer in the British industry before migrating to the U.S. at the age of 21.
If I buy a can of brown sludge I want to know it’s sold by the Coca Cola company. If anyone could sell their stuff as “coca cola” that would harm me, the consumer, as it takes information away from me.
The "good" news is that patent trolling is, more or less by definition, a get-rich-quick scheme - they want to make a lot of money by sending a few dozen letters every year. It does not attract people who are interested in anything approaching due diligence.
But also, the whole point of all of this is to get the trolls to leave Cloudflare alone, right? This is a very deliberate strategy; this announcement says "don't try that stuff here ... but feel free to try Cisco or Juniper instead."
The fact that they thought they had a winnable case again Cloudflare makes me think that others actually paid up ... or that the troll was just getting desperate to finally earn anything.
https://techcrunch.com/2024/02/14/meta-settles-lawsuit-over-...
They basically have a stranglehold on patents for haptic feedback in gaming for some unfathomable reason and they will have it for the foreseeable future.
If they're serious about their prior art bounty program, they're going to need to increase the bounties. Actual patent search firms charge a lot more money, and even lowly paid bureaucrats make a lot more.
In the same way that TV networks find/vet/pay for the supply of shows and take on the risk per-show, YouTube (at its core) doesn’t do any of that and all of the content creators do those things with the hope it will take off and a share of the ad revenue, while YouTube’s risks are related to the opex cost of the incoming supply/demand.
Instead of cloudflare paying per examiner, they give a non-guaranteed slice to a bigger group of people.
Edit: Found this with a search, so it can be done: https://xlscout.ai/novelty-checker-llm/
(also, thanks Cloudflare! Keep on grinding patent trolls!)
And the AI search technologies I used tended to not be particularly good. They typically find "background" documents that are related but can't be used in a rejection.
I don't anticipate LLMs being able to examine patents in general well. Many times a detailed understanding of things not in the text is necessary to examine. For the technologies I examined, often search was basically flipping through drawings. I'd love to see an AI search technology focus specifically on patent drawings. This can be quite difficult. Often I'd have to understand the topology of a circuit (electrical or flow) and find a specific combination of elements. Of course, each drawing could be laid out differently but be topologically equivalent... this surely can be handled with computers in some way, but it's going to require a big effort right now.
The inability to answer basic facts should be a dealbreaker.
Also, you don't necessarily have a real dataset to begin with: prior art doesn't need to be patented, it just needs to be published/public/invented sufficiently before the patent. Searching the existing patent database is insufficient.
Let’s not pretend that “correlation” isn’t very powerful
I would caution against making assumptions with regards to dataset access and size. I agree effectiveness of the effort I mention would be a function of not only gen AI engineering, but also dataset size and scope.
I don't know if they're tackling this issue, though.
But Cloudflare isn't asking for an opinion on a particular invention. A patent searcher could come back and say there is no prior art that reads on the invention in that case and still be paid. Instead, Cloudflare's asking for invalidating prior art, which I think sets the bar even higher and should increase the payout to account for the fact that much of the time there won't be invalidating prior art and thus won't be a payout.
If the platform is not taking on as much risk, the payouts should be higher.
[1] https://ipwatchdog.com/2015/04/04/the-cost-of-obtaining-a-pa...
It's more than $3,000; I can tell you that.
Secondly, it's detective work; you might get the answer right away, and you might spend days searching fruitlessly. Making a claim chart is what take the time: you have to hit every single element.
You just cannot see that for many people it's their genuine interest.
I know plenty of open source contributors and most of them do not give two damns about social capital or resume (some don't even work in software, but contribute to OS), they just like solving problems with code.
More deeply, the very idea of a "patent examiner" has never made sense to me. It requires being expert in all things, which is impossible. It makes more sense to take someone who is an expert in a field, and put a "patent examiner" hat on them for a little while. Ideally the patent system is not so complex that it itself requires as much or more study to be expert in than the actual subjects of the patents -- this would be a very bad sign.
From the USPTO[1]
What kind of degree do I need to apply, and which vacancy do I need to apply to? The minimum degree required to be a utility patent examiner is a bachelor’s degree. There are dozens of STEM-related bachelor’s degree types that qualify, even if they are not the exact discipline listed in the title of the job vacancy.
For example, professionals with bachelor’s degrees ranging from engineering, mathematics, astronomy, space science, geophysics, oceanography, or hydrology could all apply to the "Patent Examiner (Physics)" vacancy when it is open. To see more details about which degrees best fit with which patent examiner vacancies, view this chart[1]. You can also attend one of our upcoming webinars or office hours to chat with a current patent examiner, or email us at JoinUSPTO@uspto.gov with your specific question.
[1] https://www.uspto.gov/jobs/become-patent-examiner [2] https://www.uspto.gov/sites/default/files/documents/patent-e...
Patent examiner shouldn't be a civil servant's job.
Rather, it should be a "bond" process given to private, accredited individuals / organizations.
If your issued patents are found invalid, your bond (which would be in the millions) is raided to pay back damages.
Unfortunately, "patent law" is a complex body of laws, legal decisions, and specialized procedures large enough to be its own distinct specialization for lawyers. While it's not impossible to become an expert in it without years of study, it is definitely not possible to be excellent at it.
Just to put it in perspective, the Manual of Patent Examining Procedure alone weighs in at over 4K pages of text.
I don't think this is a good strategy. These folks tend to have a poor understanding of patent law in my experience, and you need to understand the basics to do this right. (You fortunately don't need to know too much law to handle 90% of cases.) And these folks probably aren't very effective at patent searching even if they understand the legal parts. I think most people overestimate their own search abilities. I certainly did. Examining patents didn't level me up as much as humble me in that regard.
> More deeply, the very idea of a "patent examiner" has never made sense to me. It require being expert in all things, which is impossible. [...]
As saratogacx pointed out, at the USPTO, the vast majority of examiners have a specific technology they are assigned to. While the matching of examiners to their "art unit" is often pretty bad (I could go on a rant...), the situation is not as bad as you described. There are some generalist examiners, but as I understand it, they are in (basically) QA roles and don't need to know the technologies as much. Unfortunately, USPTO upper management seems to want to make examiners into generalists, which I doubt will work out as they want.
I agree that periodic rotations of industry folks into patent examiner positions is a great idea. It would help the patent system and give the industry folks some appreciation for what examiners do.
If you're worried about lack of expertise, you should be more worried about the courts. Judges and juries almost never have a background in the technology of the case they are working on.
The examiners regularly approve absolute bullshit patents in my field that either obviously have prior work, and shouldn't be patentable anyway such as game mechanics. They clearly don't understand the work they're meant to be doing. Either patent law is horribly designed and needs to be razed to the ground, or it's being horribly applied.
With that being said, the majority of the time, the examiner made the right decision. You should check whether a patent was actually granted, for instance. Often when people are complaining about a dumb patent they're actually complaining about a dumb patent application that the USPTO rightly rejected. You should be complaining about the people writing such applications, not the USPTO.
Further, the USPTO is funded purely by fees, not taxes. Applicants want patents. That creates a perverse incentive to reduce patent quality to make it easier to get patents.
I've elaborated on these issues at length on HN before: https://news.ycombinator.com/item?id=36563611
I don't have the energy to diffuse false analogies. We're not talking about a hospital.
I do remember your comments from past threads too. It really interesting to hear the perspective from the patent office's side, but the idea that the patent office had some secret and specialized method of evaluating novelty is ridiculous. Any expert can read a sample of granted patents and tell you that. I'd estimate maybe 5% of patents in my field have any novelty, and that's being generous.
I'm sure this has more to do with incentives and the overall system, and that individual patent examiners would prefer to do a good job. But you have to admit that the results are atrocious.
Just because they said it was granted, doesn't mean that it was. A lot of people here don't seem able to distinguish between a granted patent and a rejected patent application. Here are two examples that I bothered to reply to in the past:
https://news.ycombinator.com/item?id=38766101
https://news.ycombinator.com/item?id=36563425
> the idea that the patent office had some secret and specialized method of evaluating novelty is ridiculous
I don't think they do and I never said they do. The USPTO follows some legal standard that I personally don't agree with. I agree with you that too few granted patents have genuine novelty.
> But you have to admit that the results are atrocious.
No, I don't. You've seen a small selection of what the USPTO outputs. Only the bad cases appear in the news. In contrast, I've seen a far larger and unbiased selection and know that the majority is fine. Most applications are rejected. I probably rejected over 75% myself.
Is there a way to sample 5 random ML patents? I'd be surprised if half were any good.
I think the quality of examination and search is excellent given how little time examiners have. But mistakes still happen too frequently, and the mistakes can be highly costly. Better to stop problems upstream in my opinion by giving examiners more time.
Patent quality is related but different. I agree that patent quality is awful, but there's only so much an examiner can do to influence that. Attorneys have basically gamed the system to write vague legalese that's patentable but basically useless. And to paraphase a supervisor I knew at the USPTO, "Just because it's stupid doesn't mean that it's not patentable". I can't reject them if it meets the legal standards but is stupid.
Anyhow, I think there might be a random sort feature that can do what you want in the USPTO's public search (no time to check, though): https://www.uspto.gov/patents/search/patent-public-search
https://en.wikipedia.org/wiki/Asymmetric_numeral_systems#Pat...
https://www.theregister.com/2021/03/13/microsoft_ans_patent/
https://patentcenter.uspto.gov/applications/16456602/ifw/doc...
Look for "Notice of Allowance and Fees Due (PTOL-85)" and click on "PDF" on the right. Scroll to page 10 and look for the "Reasons for Allowance" section where the examiner describes in detail why it differs from the prior art.
While there are minor technical differences in exactly how rANS has been encoded/decoded before, and how Microsoft does it, the fact that Microsoft was granted this means they now have a weapon with which they can cause fear, uncertainty and doubt around ANS, much to the chagrin of the ANS's actual inventor, Jarek Duda, who wanted it to be public domain and implementable by anyone.
I'm not an expert but Duda and fellow compression experts looked at the claims themselves: https://encode.su/threads/2648-Published-rANS-patent-by-Stor...
It seems to me like Microsoft got a patent on "doing ANS a little bit different" - they didn't have to, they could just do it the normal way, but this little bit of difference lets them secure a patent, and now they can pursue anyone who implements ANS to intimidate them with "how sure are you don't do ANS like we do? Let's get our multi-billion legal team, and your legal team, and find out. You have a legal team, don't you?"
In particular, this patent already had a final rejection in 2020. But Microsoft then took advantage of the "After Final Consideration Pilot" program, which sounds more like the USPTO trying to drum up trade, to get it re-re-re-examined.
This is due more to people not understanding what the patent covers. The right response in my view is to educate people. Just because someone has a patent on a particular variation of X, doesn't mean that working on X is risky or what not. Just don't infringe their variation. When I was at the USPTO, I examined a lot of little variations of common things in my area (water heaters and car air vents, mostly) and I never worried that it would stop innovation as usually the point of novelty was not particularly groundbreaking, or even necessarily of interest to anyone aside from the applicant.
Do you feel qualified to discuss patents related to software? If so, why?
Just for once do the right thing rather than what you think you can get away with because overall this is a genuinely something to be celebrated.
That’s not what I’m talking about here though.
Personally, I value my own time well above my job's hourly rate, so I would expect to be paid more, not less, in the situation you describe. I suspect the same is true for many others as well.
> most of the people who submit the prior art as part of Project Jengo would do so even if there were no payout
I'd say this is due to selection bias. People who wanted a bigger payout didn't participate.
You all's program is basically over now, but I think anyone considering a prior art bounty program in the future should check best practices for bug bounty programs. The two seem similar to me. Paying more will get more and better submissions, and it doesn't seem to be particularly expensive to me.
Paying more doesn't always motivate people more or get more (quality) people to do a thing. Compensation and associated psychology is complicated, because people are complicated.
e.g. I am willingly working very hard at a job where I could make 10x or perhaps even 100x elsewhere with equal or less effort. And I often spend my time on things that are completely irrational by your types of economic measures or even "pay to work."
(I spent a couple months between gigs building a bicycle from parts, and sourcing the parts was the biggest timesink.)
Was a lot of work, but a fun project to really learn what goes into a bicycle. Definitely won't see another bike like mine on the road!
Exactly! It’s beautiful, functional and very cool in how original it is. Thanks for posting that image and for the chat - you’re very talented and have really inspired me.
I've saved about $162/hour on various home projects when compared to quotes I've been given. Considering I'm a relative noob when it comes to this stuff I've gotta imagine they're charging much higher hourly rates than this.
This $162/hour is way more than what my salary as an hourly wage would be and it's also tax free to boot.
(At the same time, people DIYing tend to underestimate their real opportunity costs).
The best outcome is that you end up liking tinkering and have pride in your work. That's a very high discount to the real cost.
Pride in work is a big thing. As someone who works at a desk, some manual labor on the weekend is a nice change of pace. It's also not pointless exercise. And in my experience the best way to get something done right is to get free advice from the pros and do it yourself. Because the people the pros hire to do it won't care as much as you.
Having your car or house fixed by someone else isn't that easy. Unless you have a personal butler, it's not like you just tell some person "fix this" in 5 minutes or less and walk away, then pay them when it's over. If it's a car repair, you have to transport your car to the repair place, then either sit there while they fix it or find some alternate transportation, then you have to come back after it's done. If it's a 1-hour job, how much time will you waste just traveling to and from the repair shop, plus potentially waiting around for it to be done? You probably could have done it yourself in less time. For a house repair, you don't have to travel there, but you probably want to stay at home while the work is being done unless the house is empty, or you really trust the contractors and sub-contractors. So in either scenario, there's a lot of your own time that's not being accounted for.
And this all assumes that the professional will actually do the job correctly, and you won't have to deal with issues from them doing it poorly. This could easily end up taking FAR more time than the original job. And in my experience, the so-called "professionals" frequently do a shoddy job or are completely incompetent (so now you need to spend a lot of time trying to figure out who to hire so you don't get screwed).
So in my view, if you mostly know how to do something yourself, it doesn't need a whole team of people to do, doesn't require expensive specialty equipment, and isn't highly dangerous, it's quite likely a better deal to just DIY.
Still yes, the biggest issue I have is most times I hire someone to do something, it often goes sideways and I have to get deeply involved anyway. This effect seems to be even worse for white collar work, where "professionals" tend to push cookie cutter solutions without much interactive analysis.
I was raised to fix it rather than spend wherever possible. Picked up a ton of useful skills that have paid me back a ton of money when I measure up with friends of similar age who used shops, contractors, etc.
Now it costs me more personally! It sometimes is just more work and energy demand than I feel good contributing because it can then take away from other parts of my day or days.
That all said, sometimes the money just is not there when the demand was! And so I do the damn work anyway.
To me, having to deal with people I don't trust one iota is a huge mental exertion too, that more than compensates for any physical or mental exertion needed for just doing the damn thing myself. And that's on top of all the time/effort needed to research places, compare prices, travel time, waiting time, etc.
Sure, if I had Alfred, my trustworthy hyper-competent butler, to take care of more mundane things for me, I'd let him do a lot of this stuff instead. But I don't, and the people that work these jobs (at least in the US) are usually anything but competent.
You could pay 100+ for a plumber to snake a drain or just buy a snake yourself and do it for <50 in parts and the next time it's free.
Perhaps for some tasks you buy so many tools it's the same price but the second you need to use them again it's a steep discount. Or you could ask a neighbor.
[1] "Stupid patents" is a technical term here -- or it has been since Mark Cuban funded an EFF staffer to challenge bad patents on the condition that the position was titled the "Mark Cuban Chair to Eliminate Stupid Patents".
https://www.eff.org/press/releases/staff-attorney-daniel-naz...
I'll still pick up litter when I'm walking through a rich neighborhood, even though those people have groundskeepers to take care of it for them. No one is doing this with the goal of a profit.
And this is a much bigger ask than picking up litter.
Is there a name for the fallacy "I don't see why people do X", "they do it because Y", "but I don't care about Y!" ?
from the viewpoint you've presented it's a bad idea to volunteer for basically anything.
even something like enlisting in a nation's armed forces is a bad idea since the risk is so high vs the monetary reward, and the only way people would become soldiers is to join mercenary armies where there is a price exacted that matches the performance.
for many people, they value the intangible more than the money.
https://ipwatchdog.com/2017/06/22/myths-patent-trolls-preven...
Given that I think the narrative is overblown, I don't really see this as a "public service". It's a problem, sure, but it's not a major one.
We did manage to convince them all to go away, but it might have been cheaper to just pay them off. I'm guessing that all they really wanted was a long list of capitulations and licensees before litigating against the big guys.
I'm not surprised that the IPR industry which thrives upon resulting legal fees is less inclined to view things as trolling and any trolling that happens to be not too severe, though. ;)
To reply to you and some others:
I'm not saying that patent trolling is not a problem. My point is that it's not as big a problem as commonly believed (in terms of total monetary losses over the US). The real problem is poor patent quality, which goes beyond patent trolling but does allow trolls to exist in the first place. For those who want to do a public service, address poor patent quality as it's the root cause.
"People working in patent law" have a conflict of interest. The arguments being made in that link are practically in bad faith, e.g.:
> Google and Uber are locked in a patent battle over self-driving automobiles, so does that make Google and Uber patent trolls?
The ordinary definition of a patent troll is a firm that sues for patent infringement as its primary business. Say what you will about Google and Uber, they clearly derive the bulk of their revenue from offering products and services to the public.
> As we consider all of this it is also important to keep in mind that the U.S. tech sector spending on patent trolls is less than 1% of all IT spending.
If you compare a smaller number to a bigger number, the bigger number is bigger. But the thing that matters isn't the size of the problem relative to the size of the industry, it's whether the shakedowns are net positive or net negative.
For software patents in particular, it's the latter, because software is inherently and purposely abstract. Which is incompatible with the reasonable operation of the patent system, because it makes the two viable strategies to patent the abstraction or to patent some specific implementation which is required for compatibility, so that alternate implementations can't be used without disrupting interoperability. Otherwise the number of alternate software implementations of any given abstraction are so large that nobody would purposely use somebody else's software patent, they'd just create their own non-infringing implementation of the same abstraction.
But patenting the abstraction itself is not supposed to be allowed (even though these patents are all too often granted) and using a patent for the purposes of preventing interoperability should be an antitrust violation for the same reason as tying is illegal even when the original monopoly was lawfully obtained, because the value you're extracting isn't the value of the invention, it's the value of compatibility with the existing system. And then there's nothing of merit left.
We prevailed and lived to fight another day but that was an incredibly unproductive and stressful time.
So I see this differently as do the many team members who kept their jobs and made good money when we were acquired.
That author is barely even trying to hide his extreme slant, and you posting an obviously extremely biased article as some sort of evidence dramatically undermines your opinion on the topic and frankly calls into question the limits of "assume good faith".
Screwing over a patent troll? That’s priceless.
No amount of money can provide that satisfaction. Heck, I’m not even impacted and I’m gleefully happy. Whoever helped deserves a free beer. Patent trolls are a blight.
If you do the numbers, yes it can. There are a lot of people who could do this searching.
This battle took 2 years, I think ?
It's a way to get media attention for people to glance at it. It's providing a nudge for them to tell you about something that they know off the top of their head.
Patent trolling is a big problem, and a lot of us view opposing it in a small way as a type of community of service.
People usually work on FOSS because they have a personal interest in a project, and want to share that with everyone. So we end up with stuff like device drivers for hardware where the mfgr couldn't be bothered to make a Linux driver, or various useful utilities, a whole OS (which everyone can use), etc. What we don't see much in FOSS is "enterprise software": stuff that's only really useful if you're a huge company. Where's the FOSS alternatives to proprietary human resource management systems, supply chain management systems, etc.? Generally, stuff like that doesn't exist, because no one wants to spend their free time working on things that they personally have no use for, and no one's found a good business case to make a company producing an open-source version.
I agree, and that's a great point I think the patent examiner person was missing. These patents are a hazard for everyone, big or small.
> Says something we hate
"Why do you hate what I said?"
Since I hate crab, all people hate crab and confronted by a crab meat liker I have no capacity to imagine why, since I hate it and therefore everybody should and therefore you're wrong.
In reality, it's the exception proving (testing) the case and showing it's flaw: all people do not hate crab therefore my generalisation is specious. Instead of doubting why anyone likes crab I should ask why I hate it.
It's right there in the name: public service. Yeah, it benefits cloudflare, but it also benefits nearly everyone else. Some people just want to improve the world, even if they're not fairly compensated for it. Some people see living in a world with one less patent troll as compensation enough.
I'm sure they did that too, like any other major company sued by a troll. This isn't an either/or situation.
Jengo draws from many, many people across the industry. They can surface all sorts of prior art, not just earlier patents, and they know where to look due to their experience.
As I said, every large company that gets sued by trolls pays patent search firms to find prior art. I can't imagine that Cloudflare didn't do the same. Why wouldn't they, there is a lot of money at stake? They added to that through the search program because the yield from patent search firms is often poor.
And, note, this strategy has worked pretty (cost) effectively for us before:
https://blog.cloudflare.com/winning-the-blackbird-battle/
But you’d suggest we do what everyone else does and hire expensive “experts”? K. Good luck with that.
Oh, forgot, that’s your profession… expensive expert. Carry on.
Also: I'm not saying that patent search firms are perfect. Albert Cory had a comment here about how the quality of search firms varies dramatically. But I do think that searching is a skill which can be developed. Many of the examiners I worked with at the USPTO were outstanding searchers who could find information in their area very quickly. It can be hard for someone looking to purchase patent search services to know who is good, unfortunately.
If Cloudflare was to behave rationally, it would simply pay the troll to go away. Trolls are very good at making that the logical choice, which is why virtually everyone else just pays up. Cloudflare fights because the act of taking a stand fits with their values.
You're clearly not civic minded enough to appreciate why Cloudflare does what it does. And so you don't understand why other people, who share Cloudflare's values, would be motivated to help them accomplish their good deeds.
Well, maybe.
Cloudflare is a company that sells to developers. A lot of developers hate patent trolls. Fighting back against a patent troll is a good way to gain respect and goodwill from those developers. So it could effectively be an advertisement campaign, and for the target audience, probably a lot more effective than paying for banner ads. It could also benefit recruiting, and moral of developers who like seeing someone stand up to patent trolls.
Also, by setting a precedent of fighting back, they might deter future attempts at shakedowns from other patent trolls.
That's not to say that their motives are completely selfish. I'm sure there were altruistic motivations as well (and motivations no doubt varies among individuals involved in this). But it isn't irrational.
For sure. I actually had the thought that I should consider applying to work there, exactly for the reasons you mention and one other reason as well: I enjoyed some of the snarky comments posted here which appear to be from folks at Cloudflare. They seem like people I would enjoy working with. So that's +1 to my opinion of the company in general and +2 to their desirability as a potential employer where I might consider working in the future.
I consider it a public service to try and drive these patent trolls out of business because the harm they do is done to the the entire industry, especially the most vulnerable companies in that industry.
Of course, I would much prefer to change the law so that patent trolling was not allowed or was not profitable.
https://ipwatchdog.com/2017/06/22/myths-patent-trolls-preven...
I think it's good that Cloudflare didn't pay this particular troll, but even if they had, it's not that big a deal.
And the best way to stop patent trolls would be to prevent bad patents from being granted in the first place by giving examiners more time. The USPTO is funded solely by fees, not taxes, creating a perverse incentive to grant invalid patents. Fix that, increase patent fees, and give examiners more time.
Nothing in the article you cited says patent trolls aren't a problem. It claims (without really supporting it) that modern patent trolling is the fault of the technology industry, which I can almost believe, but "the technology industry" is large, and non-practicing entities which are commonly identified as "trolls" are very different than entities that actually do R&D.
I think you are probably right about this, at least in direction if not in magnitude. The "patent troll myth" argument isn't persuasive, however, and I don't think you are convincing many people here.
Patent trolls are clearly a problem, in particular for startups and independent software developers who lack the resources to effectively fight the trolls. The cost of settling with a troll might bankrupt a small startup before they have a chance to raise a lot of capital and hire expensive lawyers. Open source projects are also harmed greatly by patents and patent trolls on a regular basis. There are many famous and well studied examples since the early days of the free software movement. I'd recommend reading some random articles on techdirt.com (or even just skim the headlines) for a quick refresher.
I am strongly in the anti-patent camp. I don't think we should enforce any patents, especially not software patents but even beyond that. It seems to me that all forms of Monopoly are bad, including the time-limited, government sponsored ones.
The promise of patents is that you have to reveal a useful invention, in such a way that it would enable others to copy that invention, but then they must pay you a license to do so. I've read a lot of patents and I have encountered only a few that actually divulged something useful that I wouldn't have known otherwise. The vast majority of them simply utilize a specialized genera of legalese to carefully craft a pretext for interfering in other people's business. The idea is to make the language as convoluted and ambiguous as possible in order to cover the most potential situations and cast the most doubt about what is actually covered. Meanwhile they are careful to control the amount of useful / valuable content to a level that is practically zero. I'd argue that with the vast majority of patents, it's actually pretty far into negative value territory. Besides litigation and hypothetical IP value listed on a balance sheet, the only real service that most patents provide to the world is to fill the world with more FUD. Just what we all need, more things to worry about. I'm sure every god fearing individual goes to sleep at night praying for another reason to hesitate before trying something new. Everyone loves that hesitation which comes along with every inspiration: will this exciting idea I have for making something useful turn into a successful business or will I get the attention of some scummy lawyers and wind up on the wrong end of a ruinous lawsuit.
Not saying CloudFlare shouldn’t reward them better.
Shit, why does anyone even work on open source software, it's just going to help some company with a market cap measured in billions.
I think it would be pretty tough for me to sell my marginal hours for more than my hourly rate.
I'm sure if I shopped around aggressively I could find a richer buyer for the 40-hour bundles I'm currently selling, but people aren't really beating down the door for a couple hours of C++ dev time here and there. Especially once you factor in time spent on lead generation, negotiation, dealing with collecting payment, etc, I think the market value of my free time is probably way less than my hourly rate.
GP’s comment was about how they value their own free time, not the market value of that time.
For collecting the payments we use a factoring agency; it costs a % but whatever; we are always cashed up. And lead generation, well, people find us. I have been 'giving away' this 'business plan' for decades and no one is doing it. Probably because everyone wants to focus on something long term, not jump from php to c++ to cobol to java etc and because of the great resume driven dev strategy. I am for one looking forward to fixing the misery that is nextjs and its 'ecosystem' for the coming decades; please continue! I will have to up the hourlies to 1500+ for that miserable experience though; give me cobol or java any day.
They might get more, but will they get better? The most passionate people I know are pretty insensitive to pay rate. Whereas the people I know who are most sensitive to $/hour tend to be more skilled at the business of the thing rather than the thing itself.
Cloudflare found a model that successfully distributed the cost of killing a patent troll between many passionate volunteers who were in it for the pleasure of taking down a troll. They succeeded, and in the process put other patent trolls on notice that our collective hatred for them is enough to raise an army of volunteers that's cheap to motivate and extremely effective. The low budget is part of the success story here!
A patent troll's whole game is for it to be more expensive to fight back than to cave, and you're complaining that Cloudflare managed to flip the economics.
I reckon many of the submitters have the same vision. The name/fame is enough. The money is a show off and a legitimizer.
Perhaps you are this magical being I can’t imagine exists. In the meantime, and regardless, irregardless even, facts are: a whole bunch of people submitted prior art that helped us defeat a patent troll that was a net drain on society. As if, mission matters more than money in some cases. Many cases? Most cases? All cases?
I wish you luck rationally optimizing your time. If you figure that out, being the market maker probably will prove more lucrative than being a participant. But, I’m getting ahead of myself. Hope you find lots and lots of opportunities for you to… search Google? Good work if you can find it.
Otherwise I agree with your snark.
But finding a critical security issue on Cloudflare in 2020 while doing testing for one of your customers, and then learning what the bounty for breaking that large of a chunk of the internet was, was still disappointing.
It's nice to see that it's gone up since then. But your company isn't the literary Robin Hood.
Would you mind elaborating? Because I would argue that, by engaging daily with your employer in a trade of your time for money, you value your time exactly your job’s hourly rate.
Don’t worry. Your job is safe. Most firms are too scared to engage in our strategy.
And for what it's worth, I'm not an attorney, and I haven't worked in patents since leaving the USPTO.
(If you're wondering: my least favorite task was finding the sections of code that supposedly infringed someone's patent, and then getting the PM's approval to turn it over to the other side. They can't actually say No, but they can be a PITA.)
I killed this patent:
https://searchengineland.com/google-maps-might-be-banned-in-...
after many, many people failed to find the prior art that I found. It's only easy once someone tells you.
Interestingly, now I can't find it! Maybe they took it down. It WAS the first result on scholar.google.com if you searched "client-server maps." This is the same project:
https://ntrs.nasa.gov/api/citations/20040006300/downloads/20...
And you can do with your own time whatever you want.
If you want to go to the beach, you go the beach, and you wouldn't expect the beach to pay you for the privilege.
If you want to fight patent trolls...
If you wouldn't mind reviewing https://news.ycombinator.com/newsguidelines.html and taking the intended spirit of the site more to heart, we'd be grateful.
The reason they are succesful is because they signal to people that the person on the other side actually cares about the report somewhat. If they are paying for it, even just a little, they are unlikely to immediately throw your report in the garbage or threaten to sue you. Its not really about the money.
It is essentially a public type service. An investment.
Secondly, a bug bounty exists because of how disclosure works. Someone could camp on a bug and or sell it, use their knowledge of it to do nefarious, harmful and certainly expensive things.
There are actual risks too.
The bounty is an alternative to those actions. Responsible disclosure is encouraged (rewarded) in the hope bug hunters do the right things.
Prior art works very differently.
"Not Very expensive"
Maybe that is true. It seems hard to say. Both efforts can take considerable time.
I've also been clear that I won't be doing that because I found patent searching to be a real grind. I think most people would agree with me on that point if they've done it. It's much harder than people here think it is. (To be clear, on something that I enjoy learning about or is relevant for a project of mine, I'm happy to search deep and for far longer than I did when I was an examiner. I can't say anything I was assigned at the USPTO was ever that interesting to me.)
I also don't view this as a public service because Cloudflare can easily afford to pay market rate. And honestly, now that I've thought more about it, this Whac-A-Mole approach likely won't stop all patent trolls. There are way too many bad patents. Trolls will just find new bad patents! The best way to stop trolls is to raise the bar on patent quality by giving examiners more time and making legal changes to raise the bar even more.
All this stuff about how I must be unaware that people have passions, aren't paid for open source, and are not "rational economic actors" is extrapolating beyond anything I've said.
PS - we killed a patent troll. A bunch of you helped. How cool is that??! Thank you.
You should try searching for prior art some time to get an idea about why I'm not happy about the payment being low. Patent examining's a real grind, and by far the hardest job I've ever done. It's boring and extremely time consuming. I doubt many people do it for pleasure or a higher calling.
If some people want to volunteer to find invalidating prior art, more power to them. I won't be joining them, though.
Both views are valid. It mostly depends on the intent of the company and you can't know that for sure. As their interest in that program is quite obvious, it's understandable that some people interpret this in two ways.
Now it's not like they forced people into that program. You are free to not participate.
[0] (the original no longer loads for me, so here's an archive) https://web.archive.org/web/20230105070226/https://blog.jaib...
Valid stance to take but not exactly unique. That's just the world we are living in.
The market sets the price, regardless of what we personally think is "fair".
Time and time again it’s like: “CloydFlare discovers way to be evil that even Google didn’t figure out! News at 10.”
Dear Jesus, all I want for Hanukah is that fly.io doesn’t end up like that.
That reasoning might work for your dayjob (why put in effort that your employer doesn't reward?), but this is not an employment situation, that line of reasoning simply does not apply to volunteer work: these folks did not put in the work to draw a check, they put in the work to combat patent trolling. And it worked: everyone who helped won.
But then some folks even won an extra prize without any expectation of a reward beyond the one they did it for. How nice is that?
If you would only consider doing this as a form of employment, so be it, but many others are happy to do this just to try and make the world a better place for us all.
People here have an interesting duality of wanting the big 200k+ faang job, but also expect you to work for free on opensource projects.
1. Why / how did sable give up its patent portfolio? It's handwaved as "lots of post trial stuff" but what's the nutshell of it? Is it because they're marked invalid? Is it punitive ruling? Something else?
2. There were 4 patents brought up against cloud flare, but sable gave up "its entire portfolio". Does that mean these 4 were their entire portfolio? Or did they have to give up patents outside of suit itself? If so, how and why? Did sable hang up the hat as a business?
And so this portfolio of patents has lost most of its value because of that?
Maybe Cloudflare agreed to reduced damages in exchange for this?
I agree it's unclear.
Not a lawyer, but it seems to be part of the court ruling. Maybe CF didn't see a chance to get their costs back and made a deal so Sable needed to only pay a part, but also release the patents?
[1] https://cf-assets.www.cloudflare.com/slt3lc6tev37/4rpPZkNJBZ...
Edit: Also, it's entirely likely that Sable still made a tidy profit overall when it settled with the other big networking companies and decided to quit while they were ahead.
In the worst case, a bankruptcy could end up clawing back any "tidy profits" that were previously paid out to company owners.
Still not very clear to me either. Probably intentional, since CF seems to want to send the message that “mess with us and in the end you’ll give up all your patents somehow”
Great Q and I don't know the answer. My best guess from the article is that Sable effectively agreed to settle rather than continue with post-trial legal procedures (whatever those are) that would have been necessary:
>A jury verdict is not the end of the road in a patent case ... there are post-trial motions, appeals, and other procedural hurdles to jump through before a case is truly over. Tired from the fight, and smarting from its loss, Sable decided it wanted to throw in the towel and end the fight once and for all.
> The responsible business people in this business actually sit down and talk to folks before they sue them, fair?
> Fair.
> And you don't do that, do you, sir?
> No.
I'm not a fan of Cloudflare in general. I think "Browser Integrity Check" is banal malware, the McAfee of the Web 2.0 era. But this? I love this. Settling with a patent troll out of court is cowardly.
Somebody or some organisation had to start standing up to patent trolls for the situation to change and kudos to Cloudflare for choosing to be that organisation. Hopefully it will encourage others to do likewise.
> the Western District of Texas against patent trolls
That means they had really good lawyers.
I had a friend that lived in that area, many moons ago.
He showed me a few of their local newspapers. They were filled with stories about "plucky innovators," fighting against "corporate vested interests."
It seems they have a fairly well-prepped jury pool, thereabouts.
I don't know when it shifted to the Western District. Waco is not nearly as rural as East Texas; it's halfway between Dallas and Austin.
Those papers were a hoot, though…
Plaintiffs file in Waco to get Albright -- if they filed in Austin, they wouldn't get him. Then they make a motion to move it to Austin, which he grants if he can based on schedules, and if it can move there, he still presides over it.
One analogy is pharma research. Rights for a promising candidate molecule are purchased by "big pharma" and they will do the grunt work to validate it and extract the big money from its therapeutic value.
Substitute "FDA market authorization after successful clinical trials" with "that infamous East Texas court district and picking the right targets" (picking a too big target might backfire, picking a too small doesn't really worth the costs, etc.)
Of course the questions are: does this really help inventors? do inventors need help? is it good for society that inventors get help? is the cost of helping inventors this way not unreasonable to the economy? and even if the cost is "low", how fucking fair is it that a lot of businesses are using a given invention but only a lucky few get dragged to court? can we do better? what kind of people patent trolls are? what do they do with the money?
I worked at a small biotech company whose business model was (in part) to do early stage drug discovery research and then sell promising leads to bigger companies, who would take the leads through the FDA approval process. Actually taking a drug through to approval is a $1 billion+ endeavor (with a high probability that it just won't work; e.g. stage 3 trials just fail). Small companies cannot do this.
So a naive solution like "don't allow patents to be sold" actually restricts a bunch of reasonable businesses.
But for most patents there's no realistic way to find patents you might be infringing (for software this is impossible in the general case as a corollary of Fines theorem). That's why we hate patents so much: you only find out if there is a patent if you get sued.
But for pharma there is a way; chemicals are "indexable": because a standard mapping from chemical structure to names exists, if you are using a chemical and want to find whether anyone patented it, you can do so easily.
In an ideal world, the law would recognise this and patents would only be valid in areas where there is a natural way of indexing - which is pretty much only pharma AFAICT
Now, how do you make sure that these companies buying patents don’t become trolls? I don’t think it’s fair to require them to use the patent, because that limits who the inventor can sell to. Personally I think the way IP lawsuits are filed and considered needs significant reform.
[1] http://cafc.uscourts.gov/opinions-orders/04-1451.pdf
[2] https://www.pinsentmasons.com/out-law/news/appeals-court-con...
The problem with patents is that they prevent use by 3rd-parties, either by the license being too expensive or by the patentee refusing to grant one. The patentee actually using their patent has no bearing on this. The real solution to this mess is to make patent licensing compulsory. The patent office could decide that in lieu of a contract staying otherwise, a patentee is guaranteed 10% of profits or 5% of production costs, whichever is greater. Patents used to provide ongoing services could be 1% of profits. Non-commercial users should be exempt.
For example, during the late 1800s, a number of companies bandied together to pool their patents together for a commercially viable sewing machine. No single company had been able to develop and file patents that resulted in a working sewing machine. As such, they pooled the patents and negotiated a portion of royalties for everyone who contributed. That would probably have been set up as its own legal entity. With a requirement to be an operating company, such a legal vehicle would not have worked.
You could argue that such an entity is considered “productive”, but then you would have to define what that means and write it into the law. Any lawsuit involving patents would require demonstrating that.
Another example is trademarks. In order to have a registered trademark, you must show that it is in active use, and it is distinct. That means that in order to keep a registered trademark, you must sue anyone who is infringing upon it.
There is an indie author who came up on a litrpg genre concept combining it with a post-apocalypse setting. His book exploded upon the niche, progressive fantasy scene. People loved the idea and other authors wrote books for it. The original author tried to brand it and protect it with a registered trademark. Because the term had rapidly genericized, that author started sending cease & desist letters to other authors, because he was required to in order to keep the registered trademark.
I don’t know if he knew he had do that when he registered it, but doing so drained the goodwill he had in the community. Progressive fantasy is a small indie community, and the authors who can, gather at Dragoncon to talk, exchange ideas. This is similar to sending cease and desist to your neighbors. You will quickly find yourself locked out of the community.
I am thinking of the inventor of the bear suit. Making something to protect yourself from a grizzly bear seems like it has low value for society. It is also this off the wall perspective that allowed him to invent a gel that can absorb heat (probably a non-Newtonian fluid). If we’re trying to protect the livelihood of an indie inventor like that, would a requirement to demonstrate productivity help the Bear Suit inventor? Or would it have a chilling effect?
It is weird and unfortunate that the longstanding deficiencies with patent law (chiefly: issuing patents for things that are too obvious or numerous) are being blamed on transferability of property rights. It’s the same broken intuition as over regulating housing construction and then blaming high housing costs on ownership by Chinese nationals.
The patent office is financially encouraged to keep issuing patents no matter the quality because it keeps the patent fees and those are payed by the applicants. The patent office seems to be protected financially from issuing bad patents as well (I can't find any record of them being sued by companies that have licensed patents that have been invalidated).
Its gotten a little better with the Alice ruling.
https://en.wikipedia.org/wiki/Alice_Corp._v._CLS_Bank_Intern...
A lot of patent trolls have no assets, and don't own anything except the patents they're currently milking. Then they go out of business, and there's nothing to sue. Sable apparently made the mistake of building up a portfolio and living on.
> Proving invalidity to a jury is hard. The burden on the defendant is high: Cloudflare needed to prove by clear and convincing evidence that claim 25 is invalid. And, proving it by describing how the claim is obvious in light of the prior art is complicated.
You're not kidding.
> Sable’s damages expert, Stephen Dell, told the jury that Sable was owed somewhere between $25 million and $94.2 million in damages.
"damages experts" == nice work if you can get it. The damage expert in the Apple v. Samsung trial that I went to was paid $2 million. "How much are you getting paid?" is always one of the first things they get asked on cross-examination.
> Sable has agreed to dedicate its entire patent portfolio to the public. This means that Sable will tell the U.S. Patent and Trademark Office that it gives up all of its legal rights to its patent portfolio
Left unsaid is whether this includes anything other than the patents that they already lost on.
Anyhow: great work, Cloudflare.
A patent that’s only sitting in a war chest and not being used to actually enrich the owner would be able to claim damages of zero if somebody else was found to be infringing
This way the corp suing first and asking questions later would have disclose everyone it has sued. It would also open the door for many many disputes and ripples.
I feel like there are so many patents in the pool that are just companies waiting for a technology to be actually invented by a clever engineer - but bc the company had the "idea" they have the rights to it. At that point we may as well automate it by having an LLM spit out ideas en masse.
On one hand, you have patents where someone needed to do thousands of experiments, often costly, years of research to invent some kind of procedure to do X and thus should have some protections from others just taking the implementation and doing it cheaper, because they don't have the development costs. On the other, you can patent "Page down button on the keyboard moves the screen down one full page (A4) instead of one screen size"
That's already there (https://www.law.cornell.edu/uscode/text/35/103)
> A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.
The problem is that unless the USPTO can find the requisite publications to prove the "obvious" part above from the statute, that then knocking down the resulting issued patent in a court case can be a very expensive effort.
> On the other, you can patent "Page down button on the keyboard moves the screen down one full page (A4) instead of one screen size"
Applicant's get patents because the USPTO can't find the publications necessary to prove they do not deserve to get the patent (there's also lack of time problems that I'm ignoring at the moment).
For your premise, often the reason why "Page Down moves by 'printed page'" might get patented is the lack of any findable publication of anything stating such. The USPTO examiner's don't have the ability to just say "but this is the way it works....", they have to find some publication, somewhere, that said "this is the way it works...".
For things like "how much movement 'PageDown' means", finding publications that state "how much" is extremely difficult.
Yes .. because it's too trivial to write down.
https://www.federalregister.gov/documents/2024/02/27/2024-03...
If Cloudflare thought they had a shot at recovering costs, $225k and a patent-portfolio could be substantially less than whatever Cloudflare (or their insurance) had paid in defense-costs.
Cloud flare wanted to send a message to other potential patent trolls that they would not go for money damage but into invalidating their patents too.
There's a lot of "on paper" companies around the world who actually do produce novel technologies even if they don't themselves create the end product, but instead sell their inventions to other parties.
Why did everybody just accept the idea that what makes a troll is them having no product when the problem is clear the high costs of litigation and low quality of the patents (and the patents selection)?
IBM is the largest and most destructive patent troll around. And all of that is just propaganda designed to make it and other companies like it rich.
Sounds like they don't need to. Well played Sable. Enjoy your money.
I really wish we could publicly shame the people behind these abuses or provide some other incentive to correct bad behavior other than speeding-ticket sized fines.
In other news, as an investor, this tells me Cloudflare is technologically ahead of the other older companies who apparently were not sure they could defend against the claims.
That feels like a highly specious takeaway from this court case. Companies settle against trolls because litigation isn't free to fight. It can make very good financial sense (and even be encouraged by investors who don't want to see a company in the courts for years, as Cloudflare was.)
I would be highly interested to see the breakdown of what it cost in manhours, fees, prizes to Project Jengo, etc. versus the payout from Sable to fight this particular case for Cloudflare, and whether they even came close to breaking even just on this case alone. Likely their decision somewhat hinged on an estimate of what it might cost to settle all other patent disputes in the future, and the belief that fighting this case is actually saving them much more money down the line (but how much?).
They are beyond shame, believe me. There have already been TV news segments about how their "place of business" in West Texas is just a PO Box.
Right? This seems like out-and-out fraud to me.
Thus, a company like that is likely limited to have just budget for legal and little less.
This is also done in order so if they lose a trial and have to pay damages they can't.
This is the wrong takeaway. Litigation is expensive and uncertain, especially in the Western District of Texas. It's a troll friendly district with a troll friendly judge. These other companies paid up because it's a rational choice to do so. Cloudflare chose to fight, but it probably would have been cheaper to settle.
The court can't just assume that you're violating their patent because they say so, they have to prove it to a reasonable level, right?
Litigants in the US are responsible for their own legal fees. It's quite common for patent trolls to ask for an amount that's cheaper than going to court.
> The court can't just assume that you're violating their patent because they say so, they have to prove it to a reasonable level, right?
They have to prove it, but the Western District of Texas is notoriously friendly to plaintiffs in patent lawsuits. Judge Albright handles about 40% of cases; he's biased as hell (https://www2.law.temple.edu/10q/how-the-west-became-the-east...).
Patents are poison. Patenting your invention is like poisoning your children. Never do it.
We need to abolish these things.
They were a great way to build a centralized public library of all new inventions in the early days of the Union at no cost to the government, but now are purely a drag on innovation and society and create horrible incentives that lead to things like the Opioid crisis.
^god feel free to find/replace this with nature/universe/humanity etc.
Without patent trolls, there would be no reason for startups to get patents - you are just going to go bankrupt before the litigation finishes otherwise.
Patents most important goal is to protect entrepreneurs and the resources they spend in R&D and to promote entrepreneurship and innovation.
Imagine spending millions on developing, say, a new method to produce something at 1/10th a cost.
Now imagine a world without patents, where competitors can just copy your process.
Who's gonna invest and innovate?
Apply that to everything from batteries to telecom from anything healthcare to car engines, etc.
Without patents we would not have the same technological evolution.
A just world would involve piercing the corporate veil and imposing personal consequences on the owner of this company.
If you don't mind the language, the first minute of https://www.youtube.com/watch?v=rLLt9bnRdlE comes to mind for how to deal with incompetent trolls. Comedy gold.
Institute a new tax on rent-seeking. Tax rent-seekers for close to 100% of the value they extract (basically a version of Georgism generalized to everything, instead of just real estate).
This would require basically a second IRS, and they would occasionally get things wrong and stifle value-producing businesses, but if it was at all effective it would be a net benefit to the economy instead of a net drag on it, and it could easily pull in enough revenue to let us eliminate income tax.
Obviously, we have to also tax people who are free-riding on the social or political manipulations of others--not every real estate owner profiting from a 5x increase in property value was actually involved in NIMBY political actions, and not every patent troll worked toward creating judicial conditions conducive to their trolling.
It's not like it's hard to pick out many, many instances of this. Licensing requirement for hairdressers? Rent-seeking. Blocking the demolition of an abandoned gas station for high-rise construction? Rent-seeking. Longshoremen prohibiting automation of ports? You'd better believe that's a rent-seeking.
Will there be edge cases and mistakes? Of course. But there'll be an incredible economic surplus from which to compensate any such victims, with all the progress enabled by removing the rent-seekers.
All patents are "open for public access" [1]. And once they age past their "expiration date" (currently twenty years from earliest date of filing) they become "public property".
What Sable is doing is giving up the ability to restrict others based on the patents content's before those patents would normally have expired anyway. So in effect they are having the patents "expire early" -- which makes the contents of each become "public property".
Now, hopefully this emboldens others who have been suffering from patent trolls or ADA claims to fight back.
Bambu Labs vs Stratasys would be another wonderful fight that would push community driven development forward.
It's easy to split patents into separate companies for lawsuits, so it's harder or impossible to find these other patents.
So next time another law firm knows how much to ask and raise?
Thank you!
Fuck. Them. Excellent work to the entire litigation team at Cloudflare.
if a company doesn't develop products, but they actively license their patents to those that do, that's still patents working as intended, and not trolling. they're still helping to get the tech developed, rather than stifling it
(i think there are a lot of problems with software patents even when used as intended by real companies. mainly, they last too long)
Software patents are a scourge, I’m just not sure the reasoning there holds.
The issue is widespread bad behavior from patent trolls, given that the cost of mass filing patent infringement claims that barely apply is so much lower than the expected settlement, and the cost of a successful defense is likely higher than the request settlement. The incentive is to get a portfolio of overly broad patents and then shake down almost entirely unrelated companies.
The reason is because they aren't being used as they were intended: patents are _supposed_ to be a way to give inventors/entrepreneurs a window to build a market with their idea. Let's say that you have some truly amazing invention that frobnicates foos 50x faster than anyone else, and you plan to take it to market. What would prevent the likes of Amazon from copying your idea with all the resources at their disposal? Patents.
Patents as an asset is exactly the problem. Your entire first paragraph is built on this faulted perspective - the assumption that how we actually use patents is aligned with how they were designed to be used. They are supposed to foster small businesses, not destroy them.
Software patents are a scourge only because patents as a whole have become a scourge.
If I invent something, I should surely be able to license its production if I don’t want to be in the production game myself. The alternative reduces to the absurd very quickly. If I invent a better system for making ball bearings, it’s not reasonable to say I should only benefit from it if I then personally raise the capital and experience to start a ball bearing manufacturing plant.
If you invent a better system for making ball bearings and patent it, you could bring your system to existing manufacturers and say "I've invented a better system, would you like to license my patent and start using it to bring your costs down and productivity up?" That's fine and most people would be on board.
But a patent troll is different. They're entirely reactive. They wait for someone else to start doing something that is vaguely similar to what you patented, and then they pounce. The troll threatens legal action if they don't license the patent instead.
What patent trolls do is effectively extortion.
That line of thinking is the problem. A patent is intended as a protection to spur development, not an asset to be traded.
The spirit of a patent is to protect a novel solution while a company develops and monetizes their innovation. It keeps bigger fish with deeper pockets from quickly copying your invention and monetizing it before you.
What's happened however is that Large companies with deep pockets are filing patents for anything and everything they can. These patents generally come from their R&D efforts but are not necessarily linked to any product specifically. They're also usually unenforceable junk that wouldn't hold up in court.
The value of these junk patents isn't in the viability to be developed into a product, rather their value is that it will take time and money to invalidate them in court.
When these companies are hit with a lawsuit for violating someone else's patent, their defense is to counter sue with as many junk patents as possible. The purpose of the counter suit is to make a settlement preferable to the protracted legal fight necessary to invalidate all of the junk patents. It's the path of least expense. You could argue this allows large companies to steal innovations from smaller players by forcing cross licensing agreements.
Often these patent portfolios are transferred to companies with no interest in developing products or protecting their business. These companies sole purpose are to weaponize the patents, they're Patent Trolls.
Using the same strategy as companies with defensive patent portfolios, Patent Trolls seek to extract settlements (extort money) from companies by suing them with all the junk patents they can. The patent trolls are immune to counter suit because they produce nothing. Thus companies must either invalidate each junk patent or settle. Often settling is the path of least expense.
if a company sells it to a broker, and it eventually gets traded or licensed to a company that develops it, i'd also consider that working as intended
if patents keep finding their way to companies that have no intention to either develop it themselves, or license it to others, and keep suing companies that do develop things, i'd consider it a failure of the system
pharma patents get traded to non-developers all the time, but pharma patents mostly do their job of incentivizing innovation. there's still flaws, but the troll problem isn't a big issue in that space
The companies that are doing the suing here are — as I understand it here — are suing to force a licensing deal.
the (forced) licensing deal comes after the development, and hinders it. and it's not to protect development of a related idea, either
1. Patent trolls don't actually produce anything. They just extract rent from other companies.
2. The patents they choose tend to be extremely bad -- overly broad, should never have been granted, had prior art, the tech never existed, .... They use the fact that they're able to sue cheaply to bully people into settling on bogus claims.
Point (1) doesn't seem bad to me. It's kind of like how truck driving is separate from truck insurance. Having specialists capable of monetizing patents allows, in theory, inventors to invent and immediately sell for estimated lifetime patent value, minus a discount associated with the troll's costs and desired profits. Without trolls, in theory, you'd have fewer inventors because they'd also need to be/hire experts in marketing, litigation, ....
Point (2) is the one that bothers me the most, and my impression is that it's a very common problem.
Oh, and to your question, most companies use patents for mutually assured destruction and as a form of signalling that important people should want to work there, not to directly monetize. Monetizing patents is less common.
Another argument against your argument in (1), is to allow the scenario to exist only where the purchaser of the patent can prove they are marketing and selling it. That is still not ideal imho, but at least it eliminates outright patent trolls.
HN is I think particularly sensitive because it has a lot of programmers and product development folks, who know that a good idea or even plan on its own isn't very valuable. I'd guess most of us have more good ideas floating around than we'll ever have the time or money to develop on our own. Its the execution and delivery of good ideas that is valuable; patents in our eyes make the easy part easier and the hard part harder.
Valid patents have to work (couldn't patent transistors in 1820), be new (which, as you mention, isn't the hard part in turning ideas into value), _be non-obvious_ (this is the point that pushes your idea from (1) to (2); if somebody else were likely to spontaneously have the idea then it wasn't a valid patent to begin with, and if they weren't then the "additional tax" is a tax on a product they otherwise could never have made), and include clear instructions (from the patent, reasonable competitors ought to be able to instantiate the idea -- if they can't, it's yet again invalid).
I do like what you're getting at though; the goal is to encourage actual inventions to actually be used. The patent mechanism attempts to do so by granting temporary monopolies (even with no real value via trolls), then guaranteeing that the invention is available for use afterward. You might be able to come up with another legislative mechanism encouraging real use of the patent before its expiry, and if it actually worked that'd probably be a good thing.
The important distinction here, in my opinion, is that investors bought a dead company along with it's IP for the explicit purpose of suing companies as that was their profit motive.
Had there been an existing company that was actively building/selling routers, then yes they would have been using the patents as intended - to protect their business. In this case the company who owns the patents, was using them in a weaponized fashion.
While you as a startup may not have the resources to go after them in court; your IP assets in the hands of a competent and aggressive patent troll could be a very big problem for Big Co.
So in that sense they are also kind of like a parasite that infects the apex predators who eat tainted meat.
But defensive portfolios are not a concern for patent trolls. They can’t be countered for infringement because they don’t make anything!
But you are not wrong that they can be like gnats that suck the blood from startups. In one car I heard of some a patent troll engaged in behavior bordering on criminal extortion - threatening mom and pops businesses for using printers and fax machines. All I am saying is that they play a role in balancing and maintaining the health of the IP ecosystem.
Its more like smaller public companies trying to keep bigger public companies in check.
Your IP assets can be used to litigate by companies that aren't patent trolls.
This isn't an interesting counterpoint. This is the de facto narrative regarding patent lawyers and patent trolls masquerading as firms that act as though they somehow contribute.
I don't recall any famous European patent trolling cases.
Makes me wonder if Cloudflare could have sued to "life the corporate veil" and go after the people who owned / operated the company. (IE, sue them so they loose their homes.)
Also makes me wonder if this is in the playbook the next time a patent troll comes sniffing around.
Somewhat related: In MA, to fight NIMBY-ism, we passed a law that people suing new housing developments can be forced to put up a deposit, without requiring proof that the case has merit. I wonder if a similar law could help with patent trolls: IE, making it easier that the plantiff put up a deposit when suing for violating their patent.
There's an important difference between patenting something that you've invented and built, and a patent troll which has done neither.
Tech patents exist because companies like Clouldflare want to because they make money with them (suing people). If companies like Cloudfare did want all tech patents to be gone, they would be gone and no patent troll would be able to do anything about.
And they try lure you with $5.000 to do the work to get them off the hook? They are cheap and bunch hypocrites.
Also, your reasoning seems to leave out a world of possibilities for why someone would hold a patent - its worth looking up the thinking around defensive patent portfolios.
These exist for a few reasons.... patents might be strategically filed to:
* have prior art on the record to keep a market open... e.g. preventing a competitor from monopolizing a space.
* have patents available for counter-suit against competitors suing over patent violation of some bit of tech that uses both.
* impress investors
* provide recognition to employees. At least in the US patents are filed by individuals, and the rights of the patent are then assigned to the company. Granted patents usually come with bonuses, as well as a nice resume padding that helps the engineers involved get higher salaries in the future.
Looks like it. Not all patents are the same - sometimes a patent is erroneously granted for something that is not a novel invention. The judge and jury ruled that the patents involved in this case were in that category... and therefore invalid patents.
There is no hypocrisy in holding patents (presumably ones you believe are valid) while pointing out that some other patents are invalid. I don't understand how this could equate to hypocrisy in any scenario short of the patent holder declaring all patents except theirs must be invalid on the principle that all patents are bad.
> Don't they enforce them?
Feel free to prove me wrong, but I've never seen anything about Cloudflare going after people for patent violations. I believe they subscribe to the modern tech patent strategy of having a big patent portfolio that only really gets used as part of a counter-suit if someone sues them for patent infringement.
Additionally, I presume Cloudflare's patents are related to the tech they develop and sell, which is categorically and qualitatively different than a law firm that does literally nothing of value buying up old patents and suing everyone who has ever used a word that also is present in the patent.
Given that the usage, purpose, and means of obtaining a patent are different between cloudflare and the troll - I don't understand how a hypocrisy claim can be leveled here... it defies all reason and logic to do so.
Ultimately, the American legal system is pretty broken. If someone brings a frivolous lawsuit against you, and you defend yourself in court, nearly 100% of the time you’ll be losing money, often a lot of money. This is the core reason why patent trolls exist, why companies normally settle out of court - it’s cheaper to do so.
https://en.wikipedia.org/wiki/Vexatious_litigation#United_St...
"Better" would mean you don't get sued as much in the future, because you're a hard target and not easy money.
They haven't released this study, AFAIK.