
We Stood Up to a Patent Troll and Won - eastdakota
https://blog.cloudflare.com/the-project-jengo-saga-how-cloudflare-stood-up-to-a-patent-troll-and-won/
======
egdod
I’m a patent attorney. Honestly this is pretty impressive—total scorched earth
tactics against ALL of the entity’s assets? I don’t think I’ve ever seen that
before, and I bet it makes some people think twice.

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

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

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

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

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

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

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

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

------
kmcquade
> "I'm pretty excited, I've never won a single thing in my life before. And to
> do it in service of taking down evil patent trolls? This is one of the best
> days of my life, no joke. I submitted because software patents are garbage
> and clearly designed to extort money from productive innovators for vague
> and obvious claims. Also, I was homeless at the time I submitted and was
> spending all day at the library anyway." — Garrett, San Francisco

This guy is a legend.

~~~
funkjunky
Hi

------
kramerdj
Hey everyone, Doug Kramer, Cloudflare GC, here. Happy to answer any questions
as we close out this chapter.

~~~
breck
Thank you! Heroic work. Any thoughts on how we can expand this effort? My
thinking is we need to get rid of Intellectual Monopoly laws in general. I
think an intermediate transition to some type of “bonus” structure for patents
instead of Monopolies might work, if we need a way to ease the transition, but
everywhere I look IM laws cause more harm than good (unless you are in the
select group that makes the inflated sums).

~~~
kramerdj
This was our attempt at contributing to a solution, not sure it solves the
whole problem. Patents do serve a purpose, so you don't want to throw out the
baby, it's as much an easily-abusable litigation system. Enough random
behavior and long-term strategic behavior may make trolls think twice before
setting up shop if it's not an easy thing.

~~~
FpUser
Patents in general yes (assuming patent office really validates patents
instead of rubber stamping ones from big companies).

Software patents, business methods and other fishy stuff - I would pretty much
love those eliminated completely.

------
spectramax
I've worked in China extensively and I feel strong about the following:

A) Cloudfare can defend, but a mom-and-pop small business cannot. A startup
cannot.

B) China can hedge against western bureaucracy and gain unprecedented speed in
innovation and new ventures - precisely because of hard pressing and blocking
issues such as patent law.

C) Even if there were no patent trolls, China can still manage to steal, copy,
espionage or fearlessly innovate - why? Because of three things - culture, law
and international relations.

In my opinion, Patents need to end. Yep, completely get rid of patents. Not
shorten it, not amend it, just simply stop taking new applications. Existing
patents can be still be active until they expire (or better yet, shorten the
expiration date). Ideas are cheap, execution is where companies need to
compete.

This is not a level playing field for the rest of the nations. China gives no
fucks about law and the west is gonna watch China lead the way in exponential
progress while we are still playing in the dirt with our little patent
litigations.

I wonder if people here have felt this before: Get an idea, start building a
prototype, demo it to a friend, friend suggests checking google.com/patents,
excitement collapses :(

~~~
nine_k
Please remember that patents were invented as a way to fight trade secrets.

A patented invention should be described in sufficient detail, and the
description is made public. This is how important inventions do not get hidden
form sight forever, even if they don't bring any profit.

This also allows people (including governmental agencies) have an idea of what
is being sold as a new invention. Would you take a new medicine whose chemical
formula is a tightly guarded secret?

I think that what makes a patent worth it is the first-mover advantage. What
makes a patent problematic is a long expiration time which does not depend on
its being used productively.

The best idea I saw is an exponential patent fee. Say, first year it's $100,
second, $400, third, $1600 (all amounts acceptable even for a lone-wolf
inventor), ... tenth, $26M, ... fifteenth, $27B.

This way any useful invention can enjoy a patent coverage for some time, and
afford it for some more time if it's bringing in significant profits, but
sitting on a patent for a long time would be impossible even for the richest
companies. Keeping a portfolio of unused patents would become pointless, too,
and patent trolling, likely unprofitable.

~~~
TeMPOraL
> _A patented invention should be described in sufficient detail, and the
> description is made public. This is how important inventions do not get
> hidden form sight forever, even if they don 't bring any profit._

And the problem is that the patents of today do their best to be as vague as
possible (in order to maximize the "area under patent"), while either being
obvious or not revealing sufficient details for one to recreate the patented
invention from the patent. Not to mention that patents lengths are not in line
with exponential rate of progress.

So if they already fail at the functions they were created for, how worse are
they from trade secrets? Maybe what we should do is not only get rid of
patents, but also reduce protections around trade secrets? People will keep
trying to make money anyway, this will still lead to inventions, but that way,
at least society will get to make use of those inventions.

(Drug research is an exception I'm not sure how to handle, though.)

~~~
adrianN
Yeah, a patent should only be granted if the patent officer manages to build a
working prototype using it as a guide. A competing patent officer should only
get the title of the patent and try the same, to check for obviousness.

~~~
jimmydddd
This requirment would have many benefits. However, a down side is that not all
entities have the resources to build their inventions. If I come up with a new
idea for an efficient rocket engine, I would have to license the idea to a
SpaceX, etc, to get it built. But it would be difficult to approach a SpaceX
and secure a license without first getting a patent.

~~~
mojomark
You will need the resources to build it eventually. You can easily protect
yourself from an individual entity stealing your ideas using a Non-Disclosure
Agreement (NDA).

Not always, but in general, a proof of concept prototype (built in parts, at
small scale, or simulated) will be an order of magnitude cheaper than a
production unit.

Would a white paper for a free energy generator be accepted to a respected
peer reviewed journal? Probably not, but there are tons of these truely
worthless granted patents out there diluting the system. I strongly believe we
need inventors to prove their claims via demonstration, one way or another.

------
twic
The USPTO and Stack Exchange teamed up a while ago to crowd-source prior art
for patents:

[https://stackoverflow.blog/2012/09/20/askpatents-com-a-
stack...](https://stackoverflow.blog/2012/09/20/askpatents-com-a-stack-
exchange-to-prevent-bad-patents/)

[https://patents.stackexchange.com/?tags=prior-art-
request](https://patents.stackexchange.com/?tags=prior-art-request)

It seems like that hasn't really got off the ground. Perhaps Cloudflare etc
could do their prior art appeals through Ask Patents? It would help build its
profile and userbase, which would help the process of taking down bad patents
become self-sustaining.

------
stevehawk
Shout out to "Garrett from San Francisco" for making the best of a bad
situation and helping to fight a patent troll while homeless.

~~~
funkjunky
I'm Garrett. As stated in my quote, I was already in the library all day for
the air-conditioning, and thought this would be a fun way to waste some time.
My submission was the "Internet based resource retrieval system (No. 8996546)"
highlighted in the article. It was honestly shocking how obvious of a patent
it was, it basically just described an online yellow pages. I could find one
of those before 2004, easy. Internet Archive wayback machine, away!

I -really- could have used the winnings back then, (I made my submission ~4
years ago), but hey, it all worked out in the end. I'm an SRE living in SF
now, with my own apartment in a nice neighborhood. Still no AC though.

------
wyxuan
Wow that’s really interesting, engaging people to find prior art with a
bounty. That should be a continued thing, where people can hunt for patents
and receive reward for anything used in a case.

~~~
rolltiide
There are a couple of services that do this. I've known about for a little
more than half of the decade.

~~~
infogulch
Nice, care to name them for everyone's benefit?

~~~
everybodyknows
[https://patroll.unifiedpatents.com/contests](https://patroll.unifiedpatents.com/contests)

------
phh
Reading from afar, it feels like cloudflare gained a lot financially from this
crowdsourcing. But I've already suffered from such patent trolls, and I
actually think crowdsourcing is a very nice way to fight them.

I think it is very interesting economically speaking. By participating into
the crowdsource, people are basically selling their memories, not time
actually spent on the task. (though I acknowledge it does take some time, even
if it's just reading the patents).

When to we get wankipatent? (short for wiki-anti-patent of course)

~~~
abraae
> When to we get wankipatent? (short for wiki-anti-patent of course)

Warning - in some countries this has an unsavory meaning.

~~~
Spare_account
I think that was the intention

------
ponsin
As I understand, many tech companies hold onto many broad patents but don't
actually enforce them. They do that as a mutual assured destruction tactic. If
the competitor sues them for a violation, then the defendant enforces all of
their parents against the plaintiff. I know of many companies in the
autonomous vehicle field that do that. One of them (I forget who) has a patent
they says that if a car on the neighboring land moves close to your lane, then
move your car to the far side of your lane.

~~~
Zarel
That only works for other companies, not for patent trolls that are usually
holding companies that own patents but don't have any products that could
infringe on patents.

The company that sued Cloudflare, Blackbird, is one such company:
[https://www.blackbird-tech.com/about/](https://www.blackbird-tech.com/about/)

~~~
jhloa2
Holy guacamole their website is extremely hypocritical

------
siffland
It would be awesome if someone would create an online database not just
against blackbird, but against all patent trolls, like every time a patent
trollish lawsuit is brought forth, just add the company and all their patents
and go to town.

oh wait does someone have a patent about "a database of prior art for patent
trolls patents".......

------
Reedx
This is great. Kudos Cloudflare!

Patent trolls really seem like a cartoonish kind of evil. I'm curious if there
is any steel man argument for their existence? Do they add any value at all or
are they just a pure drain?

~~~
soneil
If a patent is being upheld for the right reasons, it's not a troll. The
patent troll is the definition of a bad actor in this arena. There's arguments
for and against patents, and especially so software patents - but there's not
many arguments for the existence of bad actors.

~~~
egdod
Patent troll is synonymous with non-practicing entity, according to most
people.

~~~
cbsmith
But even NPE's aren't intrinsically a bad thing. It's just the NPE space is
filled with these horrid trolls. Context matters.

~~~
egdod
Exactly my point.

------
silasdavis
Here's a foolish idea: can we patent patent trolling?

Parhaps a patent on some electronics means for discovery of targets for
specious patent claims. Or a patent on some 'novel' business process that
patent trolls could be argued to rely on. Something sufficiently broad that
might be weaponised against patent trolls.

Have I just ruined the patent trolling patent by creating prior art?

~~~
Intermernet
[https://www.npr.org/sections/money/2012/08/01/157743897/can-...](https://www.npr.org/sections/money/2012/08/01/157743897/can-
you-get-a-patent-on-being-a-patent-troll)

~~~
silasdavis
Damn it's almost as if there's no such thing as an original idea....

~~~
Intermernet
Now you just need to patent the process of having an original idea...

~~~
narrowtux
Why not skip the middle man? Just patent patenting.

~~~
Intermernet
My new startup: Usurpr

------
nathcd
On the topic of crowdsourcing prior art, I found something interesting from
googling around a bit that I wonder if anyone here might know anything about:

[https://www.uspto.gov/page/roundtable-uspto-use-
crowdsourcin...](https://www.uspto.gov/page/roundtable-uspto-use-
crowdsourcing-identify-relevant-prior-art-examination-application)

[https://www.uspto.gov/patent/initiatives/uspto-led-
executive...](https://www.uspto.gov/patent/initiatives/uspto-led-executive-
actions-high-tech-patent-issues)

[https://obamawhitehouse.archives.gov/the-press-
office/2014/0...](https://obamawhitehouse.archives.gov/the-press-
office/2014/02/20/fact-sheet-executive-actions-answering-president-s-call-
strengthen-our-p)

In 2014 there was an executive order "focused on expanding ways for companies,
experts, and the general public to help patent examiners, holders, and
applicants find relevant “prior art”". (The other executive actions on that
archive.gov page look interesting too.) But I can't find any info more recent
than the 2014 roundtable that the USPTO held. Does anyone here know anything
about this?

~~~
bbanyc
I was an intern at USPTO a few years ago, during my failed attempt to become a
patent attorney. What I saw and experienced there was a closed-minded agency
with a very narrow bureaucratic focus. The only "prior art" that normally got
searched was the database of previously submitted patent applications and
issued patents. There was no room for bringing in outside experience or common
sense. Search the database, stamp the application "accept" or "reject", move
on to the next application, get as many done in the bi-week as possible.

This, I realized, is how we got so many garbage patents on well-known, obvious
software techniques - if nobody thought software was patentable at the time,
they wouldn't have bothered filing a patent application. Years later, when
software became patentable, the first vulture to think of filing could snatch
up the patent and 20 years of exclusivity even though they didn't invent a
thing.

Given how hard it is to make any lasting change to organizational culture, not
to mention that we're under a different administration now, I expect that
absolutely nothing came of this 2014 roundtable and nothing will until
somebody _really_ powerful gets burnt.

~~~
vkou
Powerful people don't get burnt, because they have the resources to fight this
in court.

~~~
bbanyc
Ever heard of Eolas v Microsoft? Anyone can get burnt. Of course MS is a joke
now, but a random troll forcing them to cripple IE plugins was a big deal at
the time.

------
bespoke_engnr
Their twitter account is so cringey:
[https://twitter.com/bbirdtech](https://twitter.com/bbirdtech)

I'm also sad to see MIT so overrepresented in their ranks, presumably because
the founder went to MIT:
[https://web.archive.org/web/20170511234303/http://www.blackb...](https://web.archive.org/web/20170511234303/http://www.blackbird-
tech.com/the-team/)

Perhaps there's an ethics course missing from the curriculum?

------
frankharv
I like the part where they go to the state bar and try and have them
reprimanded. Too bad cloudflare can't comment on those proceedings.

~~~
LanceH
It's almost like lawyers made the rules to protect lawyers.

------
alasdair_
I still think one of the better ways to handle the patent issue is to charge a
property tax of, say, 2 percent of its value per year. The owner gets to
declare the value BUT they MUST sell it to the first person willing to pay the
claimed value of the patent.

------
nautilus12
Hey cloudflare, why don't you start a venture that productizes this process
for smaller companies that can't afford to do this themselves by pooling all
the companies that are being targeted by a particular troll together, for any
patent troll, not just blackbird.

------
mannykannot
Congratulations!

I see that Project Jengo started right about the time the Supreme Court put a
stop to the Eastern District of Texas Court prostituting itself as a service
to trolls [1], and that this case was judged in the Northern District of
California.

Things are moving in the right direction, but we also need the USPTO to do its
part properly.

[1] [https://arstechnica.com/tech-policy/2017/10/patent-cases-
in-...](https://arstechnica.com/tech-policy/2017/10/patent-cases-in-east-
texas-plunge-more-than-60-percent/)

------
yami2yami
Could this be an improvement?

1\. Patents must cover only stuff that could be created/used at the time of
the filing.

2\. Patents are not transferable.

3\. Patents that are not licensed and not used within a specified time are
automatically released to the public.

~~~
timvdalen
The second point would be very hard to enforce because you could just house
the patent within a company and sell the company.

~~~
pluma
Companies don't innovate, people do. The patent may be filed by a company but
the discovery must have been made by one or more human beings. So you might as
well argue that it shouldn't be possible for legal entities to hold patents if
patents can't be transferred.

That said, the obvious flaw with that point in isolation is that it would
still be possible to license a non-practicing entity to sue people on your
behalf and then have a revenue sharing agreement between the holder and their
employer at the time where the employer reimburses the holder for all expenses
related to filing and in return receives all licensing revenue -- effectively
recreating the current system but with more layers of bureaucratic
indirection.

The problem is patents. If you try to fix them, the market will simply adjust
to work around those fixes. Much like with actual nuclear weapons, we need to
get rid of them, not just write more laws about when it is okay to use them.
But unlike actual nuclear weapons, we can get rid of patents without changing
the laws of physics -- we can just ban new applications and let the existing
patents run out.

------
Tepix
Regarding the location based game patent, there is prior art from 2005
GPS::Tron, a J2ME game

[https://web.archive.org/web/20050204180710/http://datenmafia...](https://web.archive.org/web/20050204180710/http://datenmafia.org/gpstron/)

The sourcecode is also on Sourceforge in the CVS repository...

------
Thorentis
Good job to Cloudflare for doing this.

But wait, they were giving out thousands of dollars for submitting ...
Internet links? How did I miss this? I love searching for obscure things
online, and could've made some easy $ with this. Hopefully something like
Project Jengo is started again with another patent troll firm.

------
shmerl
Patent trolls are racketeers, plain and simple. There should be jail time for
it.

------
funkjunky
I'm one of the bigger winners, for the "Internet based resource retrieval
system (No. 8996546)" patent they highlighted in the article. Probably one of
the coolest things I've ever participated in; special thanks to Cloudfare for
organizing such a clever competition for a such a worthy cause. I hope other
companies are able to follow their example to leverage the community to help
solve these kinds of problems. For generous rewards, of course ;-p

------
varshithr
Looks like Raytheon acquired Blackbird technologies in 2014[0]. I honestly
wonder why Raytheon let Blackbird continue patent trolling.

[0]: [https://www.raytheon.com/news/feature/raytheon-blackbird-
tec...](https://www.raytheon.com/news/feature/raytheon-blackbird-technologies)

~~~
eastdakota
Different, unrelated Blackbird. Though, fun fact, I tried for several years to
get Raytheon to license their trademark in the name Blackbird to Cloudflare so
we could sue Blackbird the law firm for trademark infringement.

[https://twitter.com/eastdakota/status/995025758278963200?s=2...](https://twitter.com/eastdakota/status/995025758278963200?s=21)

Proposed we license it for “$1 and other good and valuable consideration.”
Unfortunately, the Raytheon IP counsel didn’t have a sense of humor.

~~~
htrp
Wow.... that's full on scorched earth tactics.

------
mikenew
I, for one, would contribute to an ongoing "Project Jengo" type of thing,
especially if it targeted the broader patent troll portfolio. I don't even
think it would need a bounty system; just create something where people can
submit prior art against a list of patents.

------
myusername334
The correct entity to bring pressure to is your Congressperson. In fact, they
are fully versed in this issue and approve of it just because it keeps
upstarts, who have nothing of value to offer them or their extended families,
in their rightful place. OTOH, it benefits incumbents like MS and Samsung and
Apple and the companies in their supply chains enormously, and those companies
have all sorts of ways of benefitting Congresspeople and their families.

The whole point of software patents is to keep you in your place, get it?

I know. I worked on this issue for a decade starting around 2000. Congress
understands EXACTLY the dynamics it gives rise to.

------
6d6b73
I wonder if patents like "Internet-based proxy service for responding to
server offline errors" [1] also qualify to be in the "troll" category.

[http://patft.uspto.gov/netacgi/nph-
Parser?Sect1=PTO2&Sect2=H...](http://patft.uspto.gov/netacgi/nph-
Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-
bool.html&r=3&f=G&l=50&co1=AND&d=PTXT&s1=cloudfare&OS=cloudfare&RS=cloudfare)

------
dasil003
> _Blackbird’s defense to these allegations was that it (i) was not a law firm
> (despite the fact it is led exclusively by lawyers who are actively engaged
> in the litigation it pursues)_

This is interesting. When we think of "law firm" it generally refers to a
company providing legal services to clients. If a company comprises nothing
but lawyers pursuing litigation to enrich themselves, what is the term for
that, and why should it be legal?

------
a3n
> But we may be back at some point. Patent trolls remain a risk to growing
> companies like Cloudflare and nothing in this experience has persuaded us
> that settling a patent lawsuit is ever the right answer. We don’t plan to
> settle, and if brought into such litigation again at some point in the
> future, we think we have a pretty good blueprint for how to respond.

That right there is the legal and literary equivalent of a head on a pike.

Respect.

------
eriktrautman
Don’t feed a troll, expose it to sunlight.

~~~
pluma
It's more "fend it off, then crowd source enough ammunition to hunt it down
and murder it", though. Everyone can expose trolls to sunlight, it just
doesn't do all that much if you don't have the resources to fight them.

------
youdontknowtho
It's really weird that patent trolls ended up being drawn to a court in this
weird little town in Texas called Marshall. I dated a girl from there once.
What a strange place it is. I've never heard a reason for why that happened.
Does anyone here know?

------
CreepGin
Bravo!!! This warms my heart a little.

I do wonder though... what's Blackbird's mentality like when they started
hitting on big players like Cloudflare? In my limited reading of past patent-
troll-related posts on HN, it's almost always about preying on small entities.

~~~
AnimalMuppet
They hit on small entities to build up enough of a war chest to buy enough
lawyers to make the big players think that a lawsuit is going to be costly. If
the terms offered to the big player are less than the big players think the
lawsuit will cost, a lot of big players will just make the economic
calculation and pay up.

~~~
kramerdj
Big players see their share of cases as well, if not more. Settling or
licensing the technology will generally be cheaper in the short term than
litigating the case.

------
phil9987
I love it how they decided to spend the money fighting the patent trolls. I
started reading the article because the title reminded me of Richard in the
Silicon Valley TV series. Happy to read that in the real world the patent
trolls got busted!! :)

------
maddy1512
Reminds me of the patent troll episode from Silicon Valley series. Good job
CloudFare!

------
tacone
Absolutely impressing. Thank you Cloudflare!

------
antpls
Crowdsourced patent troll fight, That needs to happen more often!

------
perl4ever
We?

[https://www.we.co/#we](https://www.we.co/#we)

------
jcmontx
Big respect to the Cloudfare folks.

------
RaceWon
> Honestly this is pretty impressive

You know what's more impressive: "Matthew Prince is co-founder and CEO of
CloudFlare. CloudFlare’s mission is to build a better Internet. Matthew wrote
his first computer program at age seven when his mom would sneak him into
university computer science courses."

Age 7 sitting in on a Uni CS course?! Holy crap

~~~
eastdakota
It was a continuing education class at the University of Utah, so maybe not as
impressive, but, I think the more telling point is how cool my mom was/is to
give me opportunities like that.

~~~
RaceWon
> It was a continuing education class at the University of Utah, so maybe not
> as impressive, but, I think the more telling point is how cool my mom was/is
> to give me opportunities like that.

Still mega imo. Yes your mom seems awesome too. Congrats on that victory,
sweet strategy!

------
briandear
Does Cloudflare now plan to stand up to Google tracking everyone by
eliminating the use of Google captcha?

~~~
deftnerd
Looks like they're getting closer to using hCaptcha rather than ReCaptcha [1]
for the Privacy Pass service, which could be a trial of hCaptcha before
rolling it out on all of the verification pages.

[https://blog.cloudflare.com/supporting-the-latest-version-
of...](https://blog.cloudflare.com/supporting-the-latest-version-of-the-
privacy-pass-protocol/)

~~~
aitchnyu
Why do they even need a third party captcha implementation? They could roll
their own.

~~~
amirhirsch
I work at hCaptcha so I can't speak to any particular arrangements. We provide
data labeling services and use the captcha as a means to lower costs for
annotated datasets. To that end, we intend to open source most of our captcha
stack and would be an obvious choice for any privacy-concerned company rolling
their own captcha.

