
Winning the Blackbird Battle - jgrahamc
https://blog.cloudflare.com/winning-the-blackbird-battle/
======
djk44
Hi. Cloudflare GC here. Some informed comments here. Feel free to AMA.

~~~
wills_forward
1) How can the broader community help end this sort of nonsense?

2) Do you see any potential for a company to offer patent troll defense as a
service and drive costs down, or does it seem too big a problem to
productize/scale a solution for?

~~~
ehsankia
[https://www.theverge.com/2015/7/23/9021191/google-patent-
sta...](https://www.theverge.com/2015/7/23/9021191/google-patent-starter-
program-free-patents-fights-trolls)

~~~
sandov
The same Google that did this: [https://arstechnica.com/tech-
policy/2018/06/inventor-says-go...](https://arstechnica.com/tech-
policy/2018/06/inventor-says-google-is-patenting-work-he-put-in-the-public-
domain/)

:thinking:

~~~
ehsankia
The reasoning here was that if they didn't patent it, some other bad actor /
patent troll would, and that would cause far more problems. Google so far has
a record of never using a patently offensively, and only time will tell if
this will keep holding true.

Google also has a giant shared patent pool that they let other companies use
to defend themselves, so this is part of that, alongside the article I shared.

~~~
Buge
> Google so far has a record of never using a patently offensively

[https://arstechnica.com/tech-policy/2017/07/waymo-drops-
most...](https://arstechnica.com/tech-policy/2017/07/waymo-drops-most-of-its-
patent-case-against-uber/)

[https://www.reuters.com/article/us-google-bt-
lawsuit/google-...](https://www.reuters.com/article/us-google-bt-
lawsuit/google-hits-back-against-bt-with-patent-lawsuits-
idUSBRE91C1J920130213)

~~~
ehsankia
Those are examples of using it defensively. They use patents to defend
themselves against lawsuit.

In this case, anyone is free to use the algorithm, and Google won't go after
them with the patent.

~~~
Buge
The Waymo vs Uber one wasn't a defense against a lawsuit.

------
forgotmypw3
>In addition to vigorously opposing this case in court, we created and
sponsored Project Jengo to push back against the incentives that empower
patent trolls like Blackbird Tech. Now that the case is over, we will be
wrapping up Project Jengo and will report back with a summary of the Project’s
successes in the near future.

I don't understand... Couldn't they expand the project to help others in a
similar situation?

~~~
rossdavidh
I think the idea of the report back is that the knowledge of how to use such a
strategy, will be widely disseminated, and that will make other victims of
patent trolling more likely to fight than settle.

------
scabarott
The case against trolls is so clear and obvious, why does it seem so difficult
to craft legislation to prevent this? I imagine a simple addition to patent
laws invalidating a patent if the holder does not commercialize it after a
certain period should get rid of NPEs. Is it not that simple? Also do you know
if there's anything like patent-troll insurance that covers legal fees in
cases like this? If not, why not? It seems like this has been a problem for so
long not only for small businesses but for major players (with vast amounts of
resources and clout) that I'm baffled why the problem continues to exist. Is
there something about the US legal system or business in general that my
simplistic mind is not understanding?

~~~
nordsieck
> The case against trolls is so clear and obvious, why does it seem so
> difficult to craft legislation to prevent this?

Patent trolls (the most successful ones, anyhow) practice Batsian Mimicry as a
defensive strategy: they specifically try to look as much like a small
inventor who's invention has been stolen by one or more bad actors. It is
never simple to disrupt an evolutionary arms race.

> I imagine a simple addition to patent laws invalidating a patent if the
> holder does not commercialize it after a certain period should get rid of
> NPEs. Is it not that simple?

Are you aware of how long it takes drugs, for example, to get from the patent
stage to the commercialization stage? I'm sure there are other obvious
industries where this would be problematic to the normal way of doing
business.

On a more broad note: is it good to require that all inventors directly
commercialize their own inventions? At best, I think this is an open question.

~~~
felipelemos
A patent is way to encourage inventions, awarding the inventors the exclusive
rights to their own inventions.

The public good is a priority. The idea is that the invention is beneficial to
the public. If somebody creates a good invention but deny it from the public,
this patent should not be in public interest anymore.

~~~
dorgo
> somebody creates a good invention but deny it from the public

for about 15 years.. After 15 years the public can make use of the invention
without paying a penny. How it is not in publics interest?

~~~
rcxdude
Because even if removing the patent system meant that the invention was kept
secret from the public, it would most likely be reinvented many times in that
15 year time. The worst part of patents is that they extend even to others who
do the legwork themselves, and frequently stifle an entire area (for example,
3D printing exploded in popularity and accessability right after some key
patents held by stratasys expired, and this was in the best case of a company
actually developing the technology they had patented).

~~~
dorgo
We are talking about an exceptional case here. The patent owner is a wealthy
and extentric agent who disregarts potential profit from
selling/licensing/using the patent. And even in such rare and unexpected cases
the public eventually gains access to inventions - which is not neccessarely
the case for inventions kept secret. Basically, the society trades speed of
technological development for certaininity of achieving its goals.

------
jedberg
I'm glad they won, and I applaud them for fighting for the good of everyone
else. Thank you Cloudflare.

Unfortunately by not going to trial, they didn't set any precedent, and sadly
I don't think they did much damage to the patent troll system. Hopefully I'm
wrong. :(

~~~
save_ferris
IANAL; how would a precedent help future cases like this?

They make it sounds like the slow and expensive process of just participating
in the legal system is what enables trolling, not the actual prior opinions of
courts.

~~~
jedberg
IAalsoNAL, but my understanding is if there were a bunch of opinions
overturning claims of trolls, it would change the calculus of settlement and
therefore make it too expensive to be a troll because of the high risk of
loss.

Yes, the long trial lengths are also a problem, and maybe an easier one to
fix, by adding expedited hearings just for these things. But at the end of the
day the trolls troll because the reward is greater than the risk.

~~~
URSpider94
First of all, it’s not clear that they _could_ have taken this to trial, as
the judge didn’t see a basis for argument (that’s what summary judgment
means).

Second, there is no legal theory or precedent that I’m aware of that would
factor in the troll-ish nature of the plaintiff in a patent ruling. Patent
trolls lose because they are usually stretching to apply vague patent claims
to a large number of targets.

Finally, trolls have a heavily uneven playing field. Most troll farms have in-
house counsel, so they have very low litigation costs. Also, they typically
segregate every patent or patent family into a separate corporate entity so
that any fee or damage awards won’t claw back overall winnings.

------
maehwasu
It's also important to name and shame law firms that represent patent troll
clients.

~~~
crankylinuxuser
Is it also appropriate to "call out" attorneys and legal firms that defend
defendants accused of unconscionable crimes (think Boston Marathon bomber)?

Attorneys are to help their represented either to make whole, or defend
against the state. If they are truly acting in an unethical stance, then they
need tried by the state board. If they were acting unethically, then perhaps
their license should be revoked. But these ethics should apply to all lawyers,
and not because they chose an 'unsavory' client.

~~~
XMPPwocky
If the Boston Marathon bomber was suing the government for not letting him set
more bombs off, and a law firm was helping him file that suit, yeah, they
should be condemned.

Everybody has a right to a defense. But helping somebody _attack_ another
party is unethical.

~~~
AmericanChopper
Personally I find the idea of withholding civil justice from criminals to be
entirely repugnant. No matter what their crimes are. I don’t think there is
any such crime that would justify withholding justice from an individual.

~~~
icebraining
I don't think the point is whether they are criminals, but whether their legal
action is at all reasonable. Suing the government in order to plant bombs is
itself unethical. So is suing someone in order to enforce a patent which
"attempts to monopolize the abstract idea of monitoring a preexisting data
stream between a server" (quoting the judge).

~~~
AmericanChopper
One of the role of judges is to determine whether their legal action is
reasonable at all. To say that a criminal should not be able to be a plaintiff
in a civil suit, or that barriers should be established to prevent it, is
simply to deny their access to civil justice. It’s an entirely mindless
position.

~~~
icebraining
You keep focusing on the criminal part, not sure why. That wasn't the point at
all, from what I can tell.

------
aero142
I would love for someone to share an example of a good software patent. I have
yet to encounter one. The only things I have encountered that match my idea of
a patentable idea are algorithms, which are not patentable. I have yet to
encounter something where there was value in the idea and not all the value in
creating a robust, usable, production ready version of it.

~~~
dboreham
Algorithms are patentable, if you add ", running on a computer". E.g. map-
reduce
[https://patents.google.com/patent/WO2012135319A1](https://patents.google.com/patent/WO2012135319A1)

~~~
mikekchar
I'm not familiar enough with US software patents to really comment
intelligently, but my understanding is that machines are patentable. Many
machines execute an algorithm. This is inevitable. For example, if you have a
process for flash freezing fish and you build a machine to execute that
process, then that machine is patentable. The algorithm that the machine
executes is an integral part of the machine and therefore part of the patent.

Mathematical constructs are not inventions, but discoveries. This is why a
mathematical construct can not be patented. You can't patent a method for
finding the circumference of a circle because the relationships are not
something you construct. It just _is_. You can discover it, but you can't
invent it.

My understanding of the "running on a computer" type of argument is that
building a machine to do something is an invention -- even if that machine
relies on mathematical facts. In fact, all machines rely on physics, and
chemistry, etc that can be modelled with these mathematical facts.

Building a machine that relies on mathematical facts and executes an
algorithm, does not in itself mean that the machine is not an invention. It
does not in itself mean that the invention is not of the same class of things
that patents were meant to work with.

My personal favourite example to think about is PKI type applications. The
fact that one way hashes are hard to factor is a discovery, not an invention.
The actual algorithms we use in PKI, no matter how much creativity was used in
discovering them, are still simply discoveries. We don't create math, we
explore it. However, is a machine that uses this math to create a signature
that is hard to fake an invention? Is it any less an invention than a machine
that uses the laws of physics (which we also don't invent) to fly?

Please note that I don't think software patents should exist. However, there
are many people who disagree. The first step in getting them to change their
mind is to understand why they think the way they do. It's easy to
oversimplify the situation and to just imagine that it is bad will and greed
that drives your opposition. However, if you don't deal with their reasonable
positions, you won't make any progress. The bad guy/good guy analogy feels
good, but the world is unfortunately a lot more nuanced than that.

~~~
Dylan16807
A flash freezer doesn't use the power of algorithms to make the fish cold. The
algorithm it uses should not be covered by the patent. And in practice the
algorithm is probably on a PLC in a nearby closet, not truly part of the
machine at all.

With software, the machine is not merely "relying" on physics which in turn
"rely" on math. The functionality is _purely_ mathematics. This is very very
different from a patent on a machine.

------
blunte
I wish it were possible to pursue all the people involved on the troll side
and burn them to the ground (financially and legally speaking).

People like that are the ticks of humanity, putting a drag on human
productivity and progress (for their own gain).

What's worse, and this also applies to many groups who affect laws which
benefit them at the cost of most everyone else, is that their gains are small
compared to the overall cost to society. In many cases it would be more
efficient just to get everyone to agree to each pay $1 to the leeches and move
on. Still wrong, but less wasteful.

------
ChuckMcM
Now if they can recover legal costs from Blackbird the circle will be
complete.

~~~
Cronkan
They don't get that automatically? If so, that's really shitty if you get
sued.

------
sam_goody
The current patent system helps the corporations at the cost of inventors (who
will inevitably be bankrupted by suing them. Especially as with a small change
a new patent can be issued and the inventor counter-sued * )

Hard to do anything about that, as the lobbyists and the common folk both want
patents.

Perhaps a solution is to limit the number of patents an individual can hold to
100, and a corporation to 100 + 10 per employee (or some similar structure).

An exception could be made if the patents would be defensive [a not-yet-
existing class of patent that prevents you from being sued but doesn't let you
sue].

This would be perceived as anti-big-corp, so has a chance of working for the
politician pushing it.

It would actually help the inventor, as it would keep the trolls out, and keep
the mega corps from just patenting everything under the sun and suing right
and left to prevent any startup from entering their area.

It would also put a certain amount of pressure to limit the size and power of
the biggest corporations (at the least encouraging them to spin off
subsidiaries and employ more.)

And lastly, it would cut down on the number of patents being filed daily, so
that the patent authority could have time to actually review them.

* I have an invention that could improve the world. The patent attorney told me that if I brought it to market, I could expect to find a Chinese knockoff with weeks, and within months I would likely be fighting just to keep production, as "improved" versions will be patented by U.S. corporations (he told me which ones even).

He said it makes sense to patent anyways, and if another small time inventor
doesn't see my patent and brings it to market, I could sue _them_. A path he
assured me is less risky and possibly more lucrative that being the producer.

You cannot even imagine how many items never go to market because patents.

An even better system would be to simply use all the money that now goes into
patents to provide grants for inventors. That would actually help me get to
market (at all!) and would actually improve the world instead of hurting it.

------
tracker1
I'm not sure they shouldn't expand Project Jengo instead of shutting it down.

~~~
djk44
I can see the value but it's largely a question of resources. There are some
strong collectives that are working in this space, not sure we have the time
to run that as a side job. Plus, PJ is narrowly-focused on this troll, which
is why we said from the beginning, it would last as long as the lawsuit was
active. In the meantime, we're focusing our community engagement efforts on
Project Galileo and Athenian Project.

~~~
tracker1
I understand.. upon reflection, probably best to just support EFF efforts on
this front.

------
mapcars
I wrote a letter to all the persons listed in an article of what I think about
them. Suggest you do the same.

------
_bxg1
To any legal experts present: at what point can patent trolls be charged with
extortion?

~~~
yubiox
You can threaten to sue anyone for anything basically but you can't threaten
to call the cops on them unless they pay you. You can see the actual details
spelled out in layman terms in (for example) the California jury instructions
for CA PC 518 extortion.
[https://www.justia.com/criminal/docs/calcrim/1800/1830/](https://www.justia.com/criminal/docs/calcrim/1800/1830/)

------
_bxg1
Were they able to get the patent in question invalidated? I know that's often
one of the main outcomes hoped for when taking a stand against a patent troll.

------
barbegal
And once again the only people making money is the lawyers. There was no need
for the Cloudflare lawyers to produce 900 pages of briefs. A few pages and a
couple of hours in court would have been enough to persuade any judge that the
claim should be dismissed. Instead I expect close to a million dollars worth
of legal fees has been frittered away.

~~~
dctoedt
Um ... lawyer and former litigator here; I've done patent-case appeals at the
Federal Circuit in a prior life:

1\. Especially thanks to the Supreme Court's _utter_ trashing of the
analytical method (in _Alice_ and other cases), it's not all that simple to
move for dismissal on the pleadings.

2\. I've looked at the patent and its claims; with a different trial judge
and/or a different three-judge panel at the court of appeals, the outcome
could _easily_ have been different. CloudFlare's lawyers must have done a
pretty good job, because getting a peremptory affirmance in the court of
appeals under "Rule 36" [0] is a non-trivial achievement.

[0] [http://www.cafc.uscourts.gov/sites/default/files/rules-of-
pr...](http://www.cafc.uscourts.gov/sites/default/files/rules-of-
practice/MASTERFederalCircuitRulesOfPractice-6.6.16.pdf#page=136)

~~~
djk44
See ccrglaw.com -- Great lawyers, they did a great job for us.

------
SergeyDruid
It reminds me of Newegg patent troll case!

------
endofcapital
How can I win the battle with endless captchas from cloudflare? Getting like
one an hour, it's really annoying and I'm tired of training your machines or
training your partner's machines.

~~~
mirimir
That's an off-topic hijack. But I do understand the frustration.

However, it's important to keep in mind that the CAPTCHAs are entirely
optional, and configurable. So it's the website that you need to complain to,
not Cloudflare or Google.

