
Blackbird's Patent Troll Suit Against Cloudflare Gets Patent Invalidated - eldridgea
https://blog.cloudflare.com/bye-bye-blackbird/
======
peteforde
Thank you, Cloudflare, for fighting the good fight.

Someone should start a collective fund for smaller companies to help with
legal support so that more troll claims can be fought instead of settled.

Anyhow, I'd be genuinely curious how much it cost to get to this point, and
how much you think it would have cost if you'd had a protracted battle.

~~~
jimktrains2
> Someone should start a collective fund for smaller companies to help with
> legal support so that more troll claims can be fought instead of settled.

You mean the eff? Probably not exactly what you had in mind, but pretty close
I think?

~~~
AnthonyMouse
> You mean the eff? Probably not exactly what you had in mind, but pretty
> close I think?

Well, of course, that requires people to put money in the fund.

[https://supporters.eff.org/donate](https://supporters.eff.org/donate)

~~~
y03a
Also, EFF is on option for smile.amazon.com. I've generated $9 for them so
far, would have been more if I had remembered to use smile more often. Amazon
is nice enough to remind me once in a while to use it, I wish it would just be
automatic when I'm logged in, I refuse to install a plug in for that feature.

~~~
programbreeding
I had the same issue until I discovered there were plugins for Chrome[1] and
Firefox[2] that will automatically redirect you to smile.amazon.com anytime
you are on amazon.com. I have seen issues with the Firefox one when you aren't
actually logged in to Amazon at the time, but the Chrome one works great.

[1] [https://chrome.google.com/webstore/detail/smile-
always/jgpmh...](https://chrome.google.com/webstore/detail/smile-
always/jgpmhnmjbhgkhpbgelalfpplebgfjmbf?hl=en)

[2] [https://addons.mozilla.org/en-US/firefox/addon/amazon-
smile/](https://addons.mozilla.org/en-US/firefox/addon/amazon-smile/)

~~~
y03a
Plugins make my skin crawl, especially one from Amazon :) uBO is the only add-
on I make an exception for.

~~~
stordoff
FWIW, neither linked plugin is from Amazon.

~~~
y03a
I guess saying "especially from Amazon" was pointless because, now that you've
pointed that out, I definitely don't feel any better about them :)

------
jaredhansen
This is great news. Regarding the several comments along the lines of "there
should be a way to pool resources across many companies to fight trolls",
there are in fact several such orgs (beyond EFF, already mentioned below). The
three I'm most familiar with (and of which we are members) are:

1) RPX, which is basically just troll insurance.
[http://www.rpxcorp.com/](http://www.rpxcorp.com/)

2) LOT Network (LOT=License on Transfer):
[http://lotnet.com/](http://lotnet.com/)

3) My favorite: Unified Patents, which actively files IPRs against NPEs:
[https://www.unifiedpatents.com/](https://www.unifiedpatents.com/)

There may be others and I'd be glad to hear about them. I recommend every
startup join at least these three - the annual fees are modest (free in some
cases) and potential benefit is enormous.

~~~
apeace
In this specific case, Cloudflare crowdsourced prior art research on
Blackbird's patents:

[https://blog.cloudflare.com/project-
jengo/](https://blog.cloudflare.com/project-jengo/)

Not exactly the same as a generic pool, but still a neat way to fight back
against these trolls.

------
Eridrus
This makes me wonder: is there any downside to enacting laws to make patent
invalidation due to them being overbroad applicable retroactively and forcing
Blackbird to return the money it extorted? It might be challenging to enforce
due to limited liability, but I don't see any obvious downsides to trying? It
seems like it could provide an incentive for companies to not attempt to
create over-broad patents.

~~~
chrsstrm
Why? If it is ruled invalid today then it was also invalid the day it was
issued. I would imagine any company who paid for a license under threat of
suit would now be telling their legal department to file a suit to reclaim the
fee paid plus interest plus any provable damages. So we already have a remedy
for this situation, no need to complicate the statutes.

~~~
Canada
Victims would have waived that right when they settled with the patent troll.

~~~
danmaz74
These waivers should be rendered null by law. I don't see any other way to fix
the problem.

~~~
Canada
Yeah, I wish there were a special place in hell reserved for patent trolls,
but undermining contracts retroactively is not something to be taken lightly.

~~~
toss1
Not sure that it would be undermining contracts retroactively.

IANAL, but the approach I'd consider is fraud/breach of contract. The previous
victims settled and paid a royalty to use a patentable technology. It turns
out that it was not what was represented. Ergo, refund. How it plays out
surely depends a lot on regional courts, precedents, etc.

~~~
stordoff
I wonder how air-tight you can make that reasoning. I suspect you could
structure the settlement as paying to use the underlying technology
_including_ the patents etc., rather than licensing the patent per se (so the
fees paid are not directly predicated on the existence of a patent).

Be interesting to see how the courts would react to that though, and if they
see it as a sign you are negotiating in bad faith.

------
erikrothoff
This is so cool. Obviously it's a big financial risk to take this route, but
it's great to have a large company actually fighting the good fight. Mad props
to Cloudflare, Newegg, EFF, and all others in this battle.

------
S_A_P
Is it possible that a nonprofit could troll the patent trolls and start
proactively suing them to get their patents invalidated? It seems to me that a
consortium of above board companies could fund such a thing and come out way
ahead of fighting litigation targeted at their business.

~~~
dpark
In addition to the cost of doing this, you have to have legal standing to
pursue the suit. You cannot sue to invalidate arbitrary patents unless you can
prove harm to yourself. If you cannot demonstrate legal standing, the courts
will not hear your case.

~~~
S_A_P
True, and I could see this becoming a tool of oppression by "big evilcorps" if
it were possible to do. I guess its a fun thought experiment though. I
generally like the patent idea, if someone comes up with something innovative
then they should see the upside. I wonder if a time window would improve
matters. Get a patent and you have X number of years to produce something
sale-able or publicly available for consumption.

~~~
mafuy
Not sure if I misunderstood, but patents do have a time window.

~~~
dpark
I think the wish there is for a “use it or lose it” window.

~~~
S_A_P
correct- Im thinking a time frame of up to 25% of the patent period is fair.
In other words you shouldn't patent an idea, but something that is close to
being "available"

------
molyss
For sure, the result is a good news, but it highlight what I believe is a
major flaw in the modern court systems : the tax payer and the defender ends
up footing the bill for what is essentially abuse of the system and pure
incompetency.

Is there any follow up on the body that approved a patent that should never
have been granted ? Not per the court order. Is there any punitive damage
awarded to the defender against the filer ? Not per the court order.

Having been personally frivolously sued in the past, I can tell you, it's not
fun and it's expensive. And even if you win, you have to sue back to pretend
to any kind of financial compensation. If you have a settlement saying the
opposing party is supposed to give you X amount of money, you have to sue to
recover that money. And they can appeal. And even if you have an agreement
saying that the winning party is entitled to have their legal fees paid by the
opposing party, apparently no judge ever grants the real legal fees.

There's a major amount of work to be done in how we deal with abusive lawsuits
and who pays the bill for the shared public legal system.

------
x0x0
fastly appears to have paid up

[http://ipwire.com/stories/blackbird-technologies-settles-
pat...](http://ipwire.com/stories/blackbird-technologies-settles-patent-
infringement-case-web-content-delivery-company/)

~~~
zarex
Yuck. I hate the way ipwire.com describes blackbird. They make it seem like
they are doing something good.

~~~
paulgb
For context, IPWire exists in a state of denial that there is a patent troll
problem:

[http://ipwire.com/podcast/ep-14-special-bloomberg-view-
stron...](http://ipwire.com/podcast/ep-14-special-bloomberg-view-stronger-
bill-article-response-nonsense/)

------
AceJohnny2
While this is nice, it's still a game of whack-a-mole. How much were the legal
costs for CloudFlare to invalidate this _one_ patent?

I'm glad they did this and they've certainly gained some goodwill from me for
this altruistic move. Was that part of CloudFlare's motivation, use it as PR?
Because otherwise, the economics still appear to be in favor of the trolls.
This battle is won, but how goes the war?

------
b6
Is there any feedback mechanism to prevent the patent office from issuing more
bogus patents?

~~~
brlewis
You're asking for something impossible. Software patents exactly analagous to
Benson, Flook and Diehr are de-facto allowed. Software is such a broad and
fast-moving field that you can't expect any patent office to be able to fairly
judge novelty and non-obviousness.

If there's any hope for the patent office it involves an act of congress
explicitly making software non-statutory material for patents.

~~~
d0lph
Honestly, it seems patents discourage competition, and in my opinion are
therefore anti-Capitalism. I would not miss them, at least for software.

It's almost a bit arrogant too, how long would it really take for someone else
to come to the same realizations?

~~~
moate
They do discourage competition. Here's why that's important:

Amazon has more money than god. For whatever reason, they decide that your
thing is valuable to them, and is extremely easy to create but also extremely
novel in its inception (nobody thought of this before). It took you years of
work to create, and you're now unable to monetize that work because
Amazon/Google/Apple/Walmart/Whoever is able to create it faster using there
tens of billions of dollars of muscle to stomp you out. Because they're better
positioned to produce, your years of work is now financially useless.

The idea of "how long would it take for someone else to realize the same
thing" is silly. They didn't. You did. innovation is a large part of what
makes software valuable. Anyone can type code if you gave them a sheet of
paper that would make the machine do what you need it to. The only reason
software has any value is because it took someone time to figure out what code
to type in the first place.

~~~
d0lph
Why does doing something first give you the right to sell it? How do you deal
with the problem of multiple discovery?

I'm not saying inventors aren't intelligent, but I really think that if they
had not existed someone else likely would have invented the same thing.

What your saying though is that some other company could have advanced the
product in a way that people would prefer it over the original. The negative
effects here seem stifling to innovation.

