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Cloudflare’s fight with a “patent troll” could alter the game (techcrunch.com)
723 points by Stanleyc23 on July 11, 2017 | hide | past | web | favorite | 274 comments

More detail on what we are doing from three blog posts:

Standing Up to a Dangerous New Breed of Patent Troll https://blog.cloudflare.com/standing-up-to-a-dangerous-new-b...

Project Jengo https://blog.cloudflare.com/project-jengo/

Patent Troll Battle Update: Doubling Down on Project Jengo https://blog.cloudflare.com/patent-troll-battle-update-doubl...

> [...] Blackbird combines both a law firm and intellectual property rights holder into a single entity. In doing so, they remove legal fees from their cost structure and can bring lawsuits of potentially dubious merit without having to bear any meaningful cost.

Don't the lawyers have opportunity costs?

This argument by in the article is silly. One of the founders of Blackbird came from Kirkland. Kirkland's profit per partner is $4m per year in the last year. So the Blackbird lawyer is forgoing the opporunity to participate in this income to pursue this case (and may others). (Granted, income is not distributed equally in most firms, but to imply that the next best alternative for these lawyers is zero income doesn't help the article's credibility.)

Opportunity costs don't get written on a ledger. Raising the risk to starting a patent troll company might be strategic in stopping other lawyers from starting, but it won't win this case.

if they couldn't really do anything else, then this is the best opportinity they are going to get!


The Patent scam intro by Austin Meyer https://www.youtube.com/watch?v=sG9UMMq2dz4

Umm…I think you mean Jango Fett, not "Jengo" Fett, in the caption for the first image in the second article.

The idea of using the name Jango is probably patented.

Possibly, but that doesn't mean they can't spell it correctly in an image caption. Indiana Jones is right below it, and it's correct.

I think that was a joke.

I've used Latham & Watkins. Just made a call to let a partner there know what I think about his firm's alumna and how it colors my opinion of him and his firm.

Encourage everyone to check with your firm's General Counsel about this. If you use Latham, or Kirkland or Weil, encourage your GC to reach out and make your views heard. It's despicable that these lawyers are harassing their firms' former and potential clients.

This is an interesting point.

Obviously these firms don't have much power over their ex-attorneys, but a culture that opposed this sort of thing might be a disincentive to strike out as a troll (what if you want to go back to respectable practice some day?). And, more dramatically, a firm that wanted to clear its name could easily volunteer some hours to fighting trolls - that's the sort of thing that could make an immediate difference.

There's also the plain-and-simple risk that lawyers at a firm I've handed the keys to know a lot about my company. That they may use this to profit against me, in a personal capacity, is all kinds of wrong. It's akin to an investment firm, doing confidential diligence on Company X, having an employee, who may or may not have been on the diligence team, run out and start a hedge fund that shorts Company X.

It's not, by itself, necessarily unethical. But it smells fishy and deserves to be dug into.

The scenario you described involving diligence and shorting would almost automatically merit an investigation from the SEC. I think it might actually merit an automatic "fine" under short swing profit rules.

It would, from the SEC. There is no analog for lawyers.

You would definitely be disbarred.

The Bar's disciplinary proceedings are not a public process. "Definitely" is definitely too strong.

I think you can find disciplinary records/proceedings online in most states. If former associates of a firm you engaged are bringing suit against you, then yes, that can raise professional responsibility issues and it's a good idea to contact the firm as you did and ask about the firm's internal knowledge management system and what information about your business those associates might have had access to.

What you describe is, without a doubt, not only unethical but also illegal. A lawyer or accountant with confidential information on a current or former client who trades on that information violates SEC rules against insider trading, agency law prohibiting an agent from profiting from his position, and rules of professional responsibility. The first could send him to jail, the second would cost him his profits, and the third could cause him to lose his license to operate.

>It's not, by itself, necessarily unethical.

can you explain this line? I was shocked to read it after your first paragraph and I can't imagine why you wrote it.

I believe that's about "who may or may not have been on the diligence team". It's not inherently unethical, because the investment firm employee starting the hedge fund may not actually have any secret knowledge.

But it's deeply alarming, because it's very possible (and hard to confirm) that they do have secret knowledge, so that practice is generally illegal even when it's not unethical.

if gp confirms that's what they meant then that's fine.

(it seemed unlikely due to the word "having".)

All it requires is DAs with enough backbone to start enforcing barratry laws against abusive lawyers.

What exactly are they supposed to do about that, though? They left the firm?

Lawyers I know are extremely risk adverse. It starts with law school, where it is the default, safe path for a lot of people who think "I want to be really important and make money" but have a degree in English, philosophy, etc. and don't know how to translate that into a high powered job without more schooling.

Then the grind of law school, where they all obsess over class rank, who gets the best internship, who gets the best job. It's a very reputation based industry, where even trying to switch to another firm could get you blackballed if done improperly and without tact.

If a lot of tech people make a big stink about this to the partners, it will quickly make this path dangerous for employees and it will stop fast.

If you've left Big Law, you are already off the risk-averse path. These are very seniority-focused places, which will not hire you back after you've left the Big Law system (with the exception of a few high-prestige postings, like a court clerkship). i.e. these lawyers will probably never again work at Latham anyway.

Considering most lawyers in big law won't make partner (from what I've heard, what makes logical sense, and what this Quora post says[0]) most non-partner lawyers in big law will eventually leave. Let's keep them from becoming patent trolls, shall we?

[0] https://www.quora.com/What-percentage-of-associates-at-big-l...

Well, law firms commonly do some amount of pro bono work as a public service and reputation builder. I'd be interested to see a firm or two donate legal support to smaller companies fighting trolls - it'd be a show of good faith and might immediately knock out low-powered trolls.

Newegg has showed what happens when these cases actually get fought, and that's something a firm could offer to build popularity and support.

Helping a for-profit company avoid paying licensing fees hardly qualifies as pro bono work.

How about if they just did the legal work to file for USPTO reexamination to invalidate the patents?

It's less about them doing something ex post facto and more that this reflects on the type of people Latham hires and retains. If a bunch of people leaving an investment bank run out and commit fraud, the bank doesn't (necessarily) look bad for failing to stop it. It looks bad by association. We assume, rightly or wrongly, likeness in peoples' voluntary associations.

Law is a very social profession. It could have some impact.

Let’s say that a firm’s alumna of a firm you have used sue you for patent infringement. Is there some insider-style laws that may be violated?

It could potentially violate conflict rules. (The idea being that the lawyer might have been privy to your secret information while his old firm represented you.)

Disagree! Both ethics and the law make it clear that the (negative) actions of former employees have no bearing on the institution.

For instance, yelling at the average american for Donald Trump colluding with Russia is both pointless, and detrimental to the average person.

Like all forms of punishment, it isn't (or at least shouldn't be) about hurting the people involved after the fact - it's about raising perceived costs of a deed so it doesn't get committed again in the future.

It is all about finding a correct pressure point.

Long time ago certain Philadelphia area law firms decided to represent vegan protesters that created a major mess in a couple of high end restaurants.

A certain flamboyant owner of one the restaurants targeted decided to have a good time applying his version of asymmetric warfare. The next partners from those law firm showed up to wine and dine their clients in the establishment, the establishment(s) politely refused the service to the utter horror of the lawyers.

Needless to say, the foie gras won...

[Edit: spelling]

This account seems more like poor planning on part of the lawyers. I would assume representing a client would imply a sort of temporary boycott on the part of the lawyers towards the client's legal adversary.

In a large firm, a lawyer isn't going to go through the active cases for every partner in the firm when choosing where to take clients for dinner.

It seems a bit naive, then, to assume that the people you're litigating against will civilly keep their anger in Lawyer-Land and never hold a grudge in real life.

I talked to an Oracle lawyer a few months ago, and told him their lawsuit just makes Oracle look bad. The lawyer was dismissive, and tried to explain how it's silly how people take lawsuits personally, and talked about how layers _understand_ that lawsuits aren't personal, and that they are still friends outside the court.

I'm sure a lawyer can "understand" how lawsuits aren't actually something personal at all, but lawyers really seem to be the _only_ people who "understand" that.

-- Linus Torvalds [0]

[0] https://lists.linuxfoundation.org/pipermail/ksummit-discuss/...

> “The personal, as everyone’s so fucking fond of saying, is political. So if some idiot politician, some power player, tries to execute policies that harm you or those you care about, take it personally. Get angry. The Machinery of Justice will not serve you here – it is slow and cold, and it is theirs, hardware and soft-. Only the little people suffer at the hands of Justice; the creatures of power slide from under it with a wink and a grin. If you want justice, you will have to claw it from them. Make it personal. Do as much damage as you can. Get your message across. That way, you stand a better chance of being taken seriously next time. Of being considered dangerous. And make no mistake about this: being taken seriously, being considered dangerous marks the difference - the only difference in their eyes - between players and little people. Players they will make deals with. Little people they liquidate. And time and again they cream your liquidation, your displacement, your torture and brutal execution with the ultimate insult that it’s just business, it’s politics, it’s the way of the world, it’s a tough life and that it’s nothing personal. Well, fuck them. Make it personal.”

― Richard K. Morgan, Altered Carbon

Yup, I've had to do that. I've basically not given in, and have slowly but surely ground down the people who should have been investigating and dealing with my issues. I'll succeed from sheer bloody mindedness.

I love all the Quellcrist Falconer quotes from that book. IIRC, it was a Quellcrist Falconer line in someone's sig that got me to pick it up.

"When they ask how I died, tell them: still angry."

There seems to be a lot of that at play in white-shoe firms. Perhaps less so now than when those positions were guaranteed for life, but some of the highest-powered lawyers I've known didn't have much intuitive sense that they were actually affecting people.

There's a fundamental misunderstanding of reality in legal profession. It is somewhat akin to 18th and 19th century conflicts - two armies line up against each other and both sides shoot. Strangely even though the last man standing won the decorum mattered. That is until someone had a brilliant idea to shoot from the laying down position. Or from the bushes. Or without wearing uniforms.

It's a fundamental misunderstanding of 18th and 19th century infantry tactics to say that they fought that way out of a sense of decorum and that no one had the idea of using concealment or cover.

They fought in massed formations because it actually was the most effective way of fighting with the technology of the time. Infantry troops that strayed too far from their formations were extremely vulnerable to attack by more mobile cavalry troops. It was only in massed formations that they were able to effectively repel cavalry attacks.

Oh rubbish.

See Napoleon's excursion into Russia. See Suvorov's crossing of the Alps.

Not seeing how either of those instances disprove my point.

In the Napoleonic wars Wellingtons order for troops to wait lying down on a reverse slope to avoid cannon fire was considered unsporting

Up until about the US civil war guns were inaccurate enough that you could stand in lines and shoot at each other with a chance to live. As such the old battle lines designed for swords were not a horrible strategy (not to be confused with good). By the US civil war rifles advanced to the point where you could shoot a target and have confidence that it would die.

Wars that happened around the US civil war were suddenly and unexpected deadly which caused all generals (who watch wars between insignificant countries which the US was at the time) to be horrified and come up with new tactics without regard for previous ideas of what was sporting.

I now have a question about the original account: did the lawyers / legal firm in question:

1. still represent their client (the vegan protestors) with the same utmost care that one would expect in hiring any legal team?

2. politely close the contractual obligation to represent and refund some or all of their fees?

3. just did a poor job of representation after this incident , but still bill the same hours and other fees?

Edited to correct formatting

(2) was the closest. Law firms demanded the retainer payment which vegans did not have so the lawyers withdrew.

That's pretty weak.

How so?

Lawyers are blocked from some fancy restaurants and they drop their animal rights client? If you were looking at hiring these lawyers, would that inspire confidence in you?

Lawyers that decide that they want to represent scum that harasses other people in restaurants should not be surprised when they are not going to be serviced in those restaurants.

To me it sounds like the exact thing that should be happening. I want every lawyer to ask himself or herself "is this cause worth it?". That is how we would know if the lawyers actually believe in their client or if they are there just to make a buck or make a name for themselves.

It seems fickle as hell to withdraw on a client's case just because you can't eat at your favorite high end restaurant anymore. Still considering the way I've seen a lot of lawyers behave, it doesn't surprise me.

Why? If one works helping people who want to destroy someone's business or livelihood, one should not be surprised if that someone goes out of his way to make one's life and your business life miserable.

> "is this cause worth it?"

How would murderers and rapists get a lawyer then? You misunderstand what the profession of lawyer is about.

Oh, that's pretty simple. The lawyer should believe them and think they are being unjustly persecuted. The lawyer should also realize how he would be seen should the murderer or rapist be found guilty or how he should be celebrated should a murderer or rapist be found innocent.

I know exactly what a profession of lawyer is about. I simply want them to have a skin in the game.

That is a profound misunderstanding of the role of 'lawyer'. It's an advocacy system. Someone must stand and advocate for the murderer, even if guilty. Otherwise only innocent people can be defended in court - and the trial is over before it begins, when somebody (you?) decides beforehand, innocent or guilty.

> That is a profound misunderstanding of the role of 'lawyer'. It's an advocacy system.

Let me assure you, I have no misunderstanding of what being a lawyer entails. I also have no illusion that it is not an advocacy system.

> Someone must stand and advocate for the murderer, even if guilty.

That's your view. My view is that only those that believe the defendant should advocate on defendants behalf. It is also my view that lawyers need to have skin in the game. Laywers having no skin in the game is the reason why we have bad lawyering.

Mmm, charming.

I think that this is absolutely brilliant. I've been against the patent of generalistic ideas, and basic processes for a very long time. Anything in software should not really be patentable, unless there is a concrete implementation of an invention, it's not an invention, it's a set of instructions.

Let software work under trade secrets, but not patents. Anyone can implement something they think through. It's usually a clear example of a need. That said, I think the types of patent trolling law firms such as this deserve every bit of backlash against them that they get.

Software is already covered by /copyright/ law. It does not need patents.

Copyright covers implementations, not ideas. I have no moral objection to truly novel inventions in computer science being protected by patents. An innovative search algorithm, a compression scheme, etc. Its shit when MP3s and GIFs were encumbered, but they were genuine inventions whose sharing publicly genuinely advanced the public good.

The kind the patent trolls use are not innovative in the same way. We need a stricter definition of obvious to one versed in the art, not a ban throughout the field.

I'm pretty sure that if you rewrote Harry Potter from scratch with new names and wording (redoing the implementation) and published that, you would still get in trouble. So copyright is somewhat broader than you think.

Of course there are grey areas, and it's appropriate that they're decided by the courts. I'm sure nobody would argue that a lossy copy of a work protected by copyright can still infringe, even if the lossiness was deliberate and intended to differentiate it from the original to a minimal degree.

Copyright of literary characters is one of the harder ones to define, and perhaps a system more like patents would be more appropriate for them, but that's neither here nor there.

Let's stick to computer science for a while. Imagine I have come up with a sorting algorithm for integers with significantly better time complexity than existing options. I can describe that in any number of programming languages, in natural language, in pictographs, etc. It's a skill that people can learn, or a tool that could be embedded in silicon and used for financial gain. Doesn't that sound more like an invention than a creative work? Shouldn't patents be the best fit?

Don't get me wrong, copyright and patent systems the world over hace significant class, but for us as software engineers to declare that patents shouldn't apply to our work because it is somehow fundamentally different to the other science and engineering disciplines is just arrogance.

The problem is that algorithms and math are explicitly forbidden from being patented. This is why most software patents include some sort of clause specifying that the work is done using a computer.

The patent office has simply done a lousy job when it comes to software patents.

I hadn't heard it explained this way before, but it explains so much.

So, for example, if I came up with a better sorting algorithm, I couldn't patent Luca Sort, but I could patent using a computer to run the Luca Sort algorithm? Or am I misunderstanding?

That's not how it works in Europe; just saying "done on a computer" is explicitly not enough. There's a concept called "technical effect" that's been worked over in the courts and well developed in the last decade (I'll leave you to look it up, eg https://en.m.wikipedia.org/wiki/Software_patents_under_the_E...).

I'm a bit out of the loop but whilst USA started letting pretty much anything in there seem to have tightened up over the years.

There's a parallel with business methods too. In both cases there been a move towards a middleground - harmonisation. Personally I feel the USA position is far worse and this harmonisation is not good; liberalisation of soft-pat and business method patents on Europe would be a big loss IMO.

>So, for example, if I came up with a better sorting algorithm, I couldn't patent Luca Sort, but I could patent using a computer to run the Luca Sort algorithm? Or am I misunderstanding?

That was how the law was until recently. But the supreme court found that "just do it on a computer" no longer counts.

That's the Alice case, which is described here:


I don't believe you are correct. You can't patent math, but you can patent algorithms. This is analogous to the material world, where you can't patent physics, but you can patent engineering.

An algorithm isn't math, it's a series of instructions. That is something that is patentable, as long as it involves an inventive step.

A more efficient sorting algorithm that is non-obvious would almost certainly be patentable.

You're partially correct. Algorithms can't be patented. However, in practice, patent drafters work around this by adding phrases such as "A memory with computer readable instructions to [Insert Algorithm]" to turn the algorithm into an invented product. The bottom line is that the invention is the memory and the processor system whose novelty is that it includes instructions which implement the particular steps of the algorithm. This practically covers all implementations of the algorithm on Von Neumann machines, in effect covering all current implementations of the algorithm.

Anything you can do in software I can do with a set of hydraulic value). Your software will be faster (a video game on my valves will take several lifetimes to display the opening), but it will work (until something leaks). thus you can translate your program to hydraulics and it is patentable.

It's gotten harder to do this since Alice.


The first sentence on the Wikipedia page of algorithm:

"In mathematics and computer science, an algorithm is a self-contained sequence of actions to be performed. Algorithms can perform calculation, data processing and automated reasoning tasks. "

An algorithm is a mathematical construct that happens to be useful with computers. See the first volume of The Art of Computer Programming for a nice formal definition of algorithm.

As you can see, that is a patent for an “apparatus and method”, not an algorithm per se.

As a holder of dozens of patents, many of them on processes derived from algorithms, I fully understand (as well as anyone can) the implications of current case law. In order to patent an algorithm, you have to re-cast it as an operation to be performed on a general purpose computer. As long as you do that, you have the patent. I fully agree that there's nothing to stop you from calculating GIF's with pencil and paper, or on an abacus, or in your head -- is that a relevant distinction, or merely an academic one?

Additionally, the algorithm has to be non-trivial, which I take to mean multi-step, for it to be patentable when it's transformed into an operation performed on a general-purpose computer. Simply multiplying by a constant, even when done on a general purpose computer, is not patentable.

Larry Cotter, yer a wizzzard Larry. You're going to Fogsnorts under the greatest principle ever, Bumblebore.

Oh, I don't know. JK Rowling rewrote Charlie and the Chocolate Factory and added wizards and no-one's complained. :p

You must be kidding, Harry Potter is nothing like Charlie and the Chocolate Factory, unless you consider magical candy to be the most important part of the story. :)

Philosopher's Stone has quite a few direct correspondences. The letter/golden ticket, the factory/Hogwarts (I could go on, but it would require me to reread it, not that that would be a bad thing). The unjustly discriminated against kid is another Dahl trope (although not one in CF per se). And more generally, the style is very similar. Beyond the first book it diverges, however.

Copyright considers things a unique work if less than something like 10% is copied. Harry Potter is in no danger. Even changing the golden ticket to a letter is enough to get around infringement there.

Of course consult a lawyer if the 10% figure above it important to your copy - there are lots of details that I don't know.

I only felt the need to establish enough similarity to demonstrate that the joke was funny, not so much the Dahl estate could take Rowling's hard-earned money. :)

The literary characters and other proper nouns in a series may be covered by trademark. Copyright only covers the specific expression of the text. Patent, of course, does not apply to fiction plots.

So if you scrupulously avoided character names and quotes from the original work, you can indeed rewrite the same plot and story arcs in your own words, and not be in conflict with the law.

That will be of no solace when lawyers for the Harry Potter media empire pursue you anyway. Just as you did not break the law in a technical, letter-of-the-law sense, so is it also possible for an entity with great wealth to make someone with lesser wealth miserable, without breaking the law.

It is far easier to rip off a nobody, or someone who is dead. For instance, rewrite Amber without Corwin or Merlin in it; make superficial modifications to all named characters and locations. Maybe you get some fans that never read the original; maybe you get some that did read it, and like your version better.

That didn't happen when Disney ripped off Kimba the White Lion and made The Lion King.

It also didn't happen when Terry Brooks reskinned the lord of the rings as "The Sword of Shannara".

Or when EL James rewrote Twilight without the vampires and called it 50 Shades of Grey.

Or when Disney animated Doc Hollywood and called it Cars

Cars was a Pixar movie.

Pixar was already owned by Disney when Cars was released.

Wikipedia[1] says otherwise:

> [Cars was] Pixar's final independently-produced motion picture before its purchase by Disney in May 2006

[1] https://en.wikipedia.org/wiki/Cars_(film)

I was under the impression that the characters in Twilight never actually have sex, while the characters in 50 Shades of Grey have a lot?

Nope, it's not a violation of copyright.

Nope, it's too wishy-washy for you to judge the potential for violation in a forum post. The 4 criteria have to be interpreted with respect to the situation at hand, and hypotheticals are almost impossible to interpret rationally.

Republishing single sentences has previously been found to be a copyright violation, and copyright has been granted on as few as three notes. On the other hand (to pick a recent example), 50 Shades of Grey, originally written as a Twilight fan-fiction (derivative by definition) was never pursued for copyright violation (AFAIK).

Copyright law apparently makes an explicit exception for translations. (i.e. translations are subject to copyright despite usually sharing literally no wording with the original.)

It isn't clear to me whether that only covers works in a foreign language that claim to be translations of some other work, or whether it would apply to any foreign-language work that duplicates the plot of an earlier copyrighted work.

The thing to remember with copyright is it covers copying. If you read a book and rewrite it in another language you didn't copy it, you copied the ideas, perhaps, but copyright covers expression and not ideas.

Like I said, the copyright law makes an explicit exception for "translations". Copyright also covers translations, despite the fact that they share none of the "expression" of the original.

Creating a translation of a work is a derivative work itself. This applies to porting software from C++ to Java as well as translating of Harry Potter to French.

Re-writing a story and translation are different things entirely.

If I describe at an abstracted level the working of a C++ program to you and you implement it in Java then you have not copied the work, nor even created a derivative, ergo clean-room implementation being a thing.

Patents cover implementations, not ideas. Ideas are not patentable. Neither are algorithms. The implementation of an idea in a machine is patentable in most places in the world. The implementation of an algorithm on a machine is patentable in the U.S.

We need better understanding of existing definitions so that we don't rehash the same arguments over and over again.

Nope. Disagree. Look at claim construction in a patent "a fixing means", for example, isn't an implementation it's an element of an idea. A patent application has to include a concrete implementation but the claims - which define the patent legally - are always broader than the specific implementation and will cover multiple implementations that use the inventive concept.

Thus, a new product that's never been made before can infringe an existing patent. The implementation is new but the _idea_ is not.

Proving that a patent's claims cover disparate implementations is how you successfully defend yourself against patent lawsuits. If a patent's claims are ambiguous enough to cover multiple, novel implementations it is by definition "overly broad" and will be ruled invalid.

See: https://www.law360.com/articles/608579/overbroad-patent-clai...

So no, patents (and their claims) are not "ideas". They are disclosures of how the invention works and they're supposed to be damned specific!

I have to press my disagreement.

Claim drafting is a specific broadening process - overly broad claims (I'm coming primarily from a UK perspective [ex-professional]; I can't cite chapter and verse of EU/US but consider myself a well informed layman in those areas). Yes claims must be supported by the description (UKPA S.14, EPC Art.84, no idea for USC) and not cover a plurality of inventions but multiple independent claims specifically cover a multitude of implementations of the same invention.

The claims shouldn't cover multiple inventive concepts (called "plurality" in UK terms), as you intimate, but covering multiple _implementations_ of a single inventive concept is kinda the whole point. An example being drug patents [not my former area] where the functional chemical groups will be claimed when paired with many other standard chemical forms. Another example would be for an allowed compression algorithm that could be implemented in silicon as part of a co-processor, or which could be implemented purely in software [to gain a real technical contribution in the inventive part of course].

FWIW your cited case (discussion here is useful https://www.law.cornell.edu/supct/cert/13-298; I only get an abstract at your link; cf. https://en.wikipedia.org/wiki/Alice_Corp._v._CLS_Bank_Intern...) concerns a different issue entirely, that of claims being made to a financial concept rather than an invention per se, basically the contention upheld is that the claims were to a financial fact that falls within excluded subject matter. It's nothing to do with breadth or multiplicity of implementation.

Lol I'm not a lawyer and I am not really interested in the legal distinction between idea and implementation, because if a non practicing entity can buy a patent that amounts to a few flowcharts you're just arguing silly semantics as far as I'm concerned.

I disagree with your characterization. Physical processes, expressed as "first x, then y, then z" are clearly and indisputably patentable. They can just be a series of steps performed by hand, no machine required. What is this but an algorithm?

And, for anyone who believes that algorithms can't be patented, I have a collection of GIF's and MP3's to sell you.

> Copyright covers implementations, not ideas.

Patents cover implementations, not ideas. Copyright covers "artistic works" like text (files), audio, and video.

To further clarify: The purpose of copyright is to grant control over who can copy it to the creator/owner so that it can't be reproduced or embellished/modified without their permission (which was a big problem at the time serious copyright laws started being written in the US). Exceptions such as fair use exist but that's the gist of it.

Profit was a secondary concern to control believe it or not. The fear being someone would publish a copy of your work with a few damning sentences changed or added here and there with your name attached. Ruining your reputation/career which was much more important to the controlling elite (land owners) at the time than the pittance one might make from sales of their writings/art.

The purpose of patents is disclosure. Don't let anyone state otherwise because the founding fathers were pretty damned clear about it. In exchange for disclosing your invention to the world you're granted a monopoly over who can use or manufacture it.

Patents never have and never will be about something as ambiguous as, "ideas".

Considering that software can only exist as ether it should never have been considered patent-eligible. Sure, you can implement software in an FPGA and claim, "it's hardware now!" Go ahead and patent that particular configuration of an FPGA... Which would be a tangible, physical thing. You should have no right whatsoever to claim a monopoly on the mere concept of such software which is exactly what software patents are.

Allowing novel software ideas to be patented ensures common software ideas will be. The incentives are for expanding patent coverage, it's a fallible system of people and it's why we are in this mess.

Interestingly, Blackbird has a patent portfolio that is not exclusive to software, although Cloudflare intends to invalidate them all.

> although Cloudflare intends to invalidate them all.

Scorched earth doesn’t allow for half measures, plus leaving them with any patents would leave them with hope and we can’t have that.

agreed. "I say we take off, nuke the entire site from orbit. It's the only way to be sure" - Aliens

Someone comes up with a very amazing compression, chemical, medicine, foreign language learning trick? (Not like H.264, which is basically a patent on a lot of prior art [1], because they put the "video" word in the title instead of data.) Yeah, sure, you get a patent on that. But it has to be so outlandishly out of the box innovative, that it should be pretty much in the same league as Einstein's tensor equations compared to Newton's F= G (M1 M2) / r^2 .

It shouldn't be the next iterative step in the field, that comes naturally in the context, after looking at the latest few interesting papers. It should be a leap, an invention to change the world.

Innovation, research/development/engineering, the process of understanding problems and (partially) solving them itself become a lot better understood as we see fundamental sciences, theoretical limits, progress over time, as we have a better mental toolkit, full of amazingly powerful concepts (information, data, power consumption, space-time trade offs, threat model, probability/statistics/risk/incentives/microeconomics).

Or, of course, make the term shorter and field based (based on the speed of adaptation and change of ideas/technologies/methods in fields), and/or mandate reasonable licencing fees (and licensing frameworks).

[1] https://news.ycombinator.com/item?id=2349585

It was late summer night when I noticed that article on HN. I immediately noticed it's organized like a novel - this popular lame style which often annoys me lately:

    Matthew Prince knew what was coming.
    The CEO of Cloudflare, an internet security
    company and content delivery network
    in San Francisco, was behind his desk
    when the emails began to trickle in ...
Was he really behind his desk?

Hesitated a little before posting - am I trying to self-assert by deriding others? But this "novel" article style is some new fashion / cliche which might be interesting to discuss. Let's see what others think.

Since you asked ... As both a writer and reader, I fucking hate it. I think it's fucking piss-poor writing by journalists who don't know how to be journalists and don't even know how to write an article, all in the name of attracting simple-minded readers with a one of the lamest prose techniques possible. I'm here to read an article about patents. I'm not interested in the opening few paragraphs of a bad novel. If I wanted to read a bad novel, I'd pick up a bad novel. If these "journalists" want to write a novel, then they should do that and stop writing "journalism" articles.

This is one of the worst scourges of online "journalism" and frankly, I'm tired of having to skip the first few paragraphs of every article because I don't want to read some fucking stupid little story over and over again and want to get to the content. What ever happened to traditional journalism, where the facts are laid out at the top and the details come in later? It seems that "journalism" nowadays can't even get that right. If they want to put a stupid story, at least put it at the end where it belongs, where few or none will read it.

You could say this is a little pet peeve of mine. Thanks for asking.

The reason is simple - they (people responsible for the form of articles, which may not always include the original journalist) don't care about you. They're not here to deliver you value. They're here to extract value from you.

My rule of thumb is simple: I look at a service and ask myself, is what I see a good, efficient way to deliver the value the service says it delivers? If the answer is no, I know that they don't give a shit about delivering value, they're only there to extract it.

In the concrete example of journalism: inverted pyramid, TL;DR of the facts at the top, no useless prose - those are signs of trying to deliver value. Prose, multi-page articles, ads, auto-playing videos (be it ads or "content") - those are signs they don't give a shit about you.

And yes, some may say that companies seek balance between profitability and value. Sure, maybe companies think they do that. But the choices they make matter. If they're making money literally on wasting my time, the most precious resource any human being has, then I don't want to have anything to do with them.

Which is why I don't read the news. The state of the journalism is so bad here, that casual browsing of comment sections of Reddit and HN is a more efficient way to stay up-to-date on the world events than actually reading the articles.

It's a matter of personal taste. The only cautionary advice to writers who employ this style would be to tell them that not all exaggerations are equal.

Sitting behind the desk when the email came in is a harmless exaggeration. It doesn't matter if he was really in bed or at dinner. The dramatic embellishment does little or nothing to change the facts or perceptions in a meaningful way.

If it's ok, we can point to NYT's article on Trump and his aides from some time ago. Aides stumbling in the darkness unable to find light switches type line. Something like that is damaging and deserves proof before writing. Doesn't matter which way you lean, that's dangerous waters since that's been written with an intent to alter perceptions in a meaningful way. To cast a group of people as confused and befuddled.

If this article (the TC cloudflare one) was to write about the patent trolls in a dramatic style that vilified them, that too would be wrong. Something like

"In the photo, Freeman can be seen standing on a bridge with a wry smile as if imagining the future in which the lawyers control the game."

Would be very dangerous and should not be encouraged.

Thankfully this article seems to follow a simple expositional style (somewhat third person narrative of cloudflare's perspective) with a little droplet of drama that just enhances the story rather than manipulating perceptions or reality.

I like it. I really enjoy the overly dramatic and/or expositional style is something I greatly enjoy in general.

It's emulating the style of writing that Wired pioneered in tech. When Joe Blow tries their hand at it, it's overdone and nuances that makes it great are in all the wrong places.

The recent WaPo article about Russian interference in the US election where stuff arrived in envelopes with top secret written on them, and people huddling around it, was also off putting.

Yeah, headings merely referencing Updike novels in an article about a patent troll is an annoyance I didn't expect today.

I'm not a fan of the argument that if Blackbird weren't a NPE it'd be okay because Cloudflare could then aim it's 150 strong patent portfolio cannon back at them. It's basically saying incumbents like Cloudflare don't really want to fix the system, they want to keep the untenable 'cold war' status quo which protects them but burdens new entrants.

Frankly, if it weren't for the stupidity of the patent system, I don't know that Cloudflare would even have the patents. Has Cloudflare ever initiated patent litigation against anyone?

The fact is that most patents for things that are "invented" but entirely virtually don't really deserve patent protection. Rarely is there significant research, expense or tooling to implement. Patents on software, processes and most extension patents are ridiculous in premise. That's what trade secrets are for.

Even if the companies only hoard these to defend themselves when they go under their patents get picked up by NPEs. It's like nuclear weapons, MAD kinda works but then a state fails and now you have terrorists with nukes. The answer is disarmament. If you want to enlist the help of the community you should have to pull a Tesla and open your patents or at the very least advocate for the abolishment of software and process patents. By crying foul and appealing to the community Cloudflare, like Blackbird, wants to have it both ways. They continue to advocate for and benefit from the ridiculous status quo but don't want to be subject to it when it inevitably goes awry.

On the other hand, you do not negotiate with terrorists. Never, for reasons that are well-known: you make yourself a possible future target, and you fund their effort.

But I agree that it probably sounds cheaper to settle. The same is true with terrorists when it involves hostages, or kidnapping, though. These patent trolls are just corporate terrorists.

Just so we're clear though, the disarmament that we should aim for is to change physics so that nuclear weapons don't work at all, right? Because that's an option, we could change how the patent system works.

Land mines are a much better metaphor for patents than nuclear weapons are. Say what you will about the evils of nuclear warfare, but we haven't seen any world wars lately, and nuclear weapons are to thank for that state of affairs.

Patents (and land mines) are a lot less useful to society.

> Say what you will about the evils of nuclear warfare, but we haven't seen any world wars lately, and nuclear weapons are to thank for that state of affairs.

It seems disingenuous to assume that the way it happened is the only way it could have happened. MAD exchanged the near-certainty of world war for a coin-flip between mostly-peace and total annihilation. We can certainly be happy that we lucked out on the coin-flip, but I don't think it follows that MAD was a policy of pure wisdom and sanity.

No question about that -- MAD was a reckless gamble that nothing would accidentally trigger the endgame. Hardly a sensible strategy. Still, it's hard to argue with the results so far.

The real concern is the ascendance of leaders who don't care if they die, or whose religion assures them that they'll come out on the winning side of Armageddon. But the analogies with patent law run out of steam well before reaching that point.

I don't think it's fair to say that nuclear weapons are why we don't have world wars anymore. I believe it has a lot more to do with globalization and the fact that most countries now recognize that it's a lot more profitable to trade with other countries than to go to war with them.

I used to think that was the case, too, and then someone pointed out how incredibly well-connected and economically interdependent the world was in the years leading up to WWI.

Global trade back then was like our modern dot-com boom, but with real money and merchandise. People were sure it would change everything. Turned out not so much. As long as the lives of the old men who ran the world weren't personally at risk, they had no reason not to go to war with each other. Nukes, not trade, were what finally changed that calculation.

You may want to change your mind again, given that there is a trivial fallacy in "We haven't had a world war yet, so clearly nuclear weapons prevent one from happening."

It is, in fact, the poster child for survivorship bias!

We have also come extremely close to having nuclear war, on multiple occasions.

The 'long' 19th century that ended in WWI was rather globalized, and we only surpassed them a few decades ago. But we did surpass them.

We have less armed conflicts and their victims now than during the MAD years of the cold war---perhaps that's a better piece of evidence that something other than nuclear weapons is helping us keep the peace?

Another possible non-nuclear explanation is democratic peace theory.


They're critiquing the analogy to nuclear weapons. Patent-weapons can be voided by altering the underlying legal framework, but nuclear-weapons can't be voided by changing the underlying rules of physics.

...Or at least, not yet.

Has Cloudflare ever initiated patent litigation against anyone?

No, we have not.

Have you ever threatened to, or alluded to your ability to do so, to obtain commercial negotiating leverage in a context other than defending the company from the threat of a patent suit?

Who cares? Cloudflare are a practicing entity, presumably with legitimate patents. They aren't necessarily at war with software patents as a concept, just the obvious abuse.

There is no such thing as a legitimate patent.

As much as I am against software patents in general, that isn't entirely true... I would say that most patents aren't, or shouldn't be legitimate, not that none of them are.

Not to my knowledge.

No, we have not.

Everyone is a "troll" when they are suing you. When you are suing other people they are thieves stealing your innovation.

These lawyers are doing great work by creating a market that allows innovators to profit from their work even if they don't have the capital to commercialize their innovations themselves.

The incumbents can cry about this but even if they have never sued anyone for infringement their valuations are still based on their portfolios and they still use the threat to suppress competition and when they are over a barrel for cash they will monetize those patents either themselves or by selling to another "troll."

Individual software engineers who invent new technologies deserve to get compensated the same as anyone else for their inventions.

But these aren't "individual software engineers who invent new technologies", now are they, shill? As stated in the article -- which I'm sure, based on what you've said here, you haven't read -- the "individual software engineer who invented new technology" made his one United States dollar in selling it to these vampires. Get a job.

That's all well and good, but it's impossible to argue that point when people are awarded patents where previous work exists that the patent office failed to investigate enough.

> So-called non-practicing entities — or holders of a patent for a process or product that they don’t plan to develop — often use them to sue companies that would sooner settle rather than pay what can add up to $1 million by the time a case reaches a courtroom.

Why on earth aren't non-practicing entity patent lawsuits outlawed? Seems like a no-brainer, and I can't imagine these firms being big enough to have any seriously lobbying power.

> Why on earth aren't non-practicing entity patent lawsuits outlawed?

The NPE category includes universities and researchers. Many inventions can't be brought to market without significant capital, and not all inventors are interested in commercializing their inventions themselves. Just because you're not personally going to build a billion dollar chip fabrication facility to implement the new silicon etching process your research group patented shouldn't prevent you from licensing it to Intel and suing someone else that uses your invention without a license, IMO.

> Just because you're not personally going to build a billion dollar chip fabrication facility to implement the new silicon etching process your research group patented shouldn't prevent you from licensing it to Intel and suing someone else that uses your invention without a license, IMO.

I completely disagree. You're now squatting on a useful technique and preventing someone else from using it even if they invented it in parallel without your help. That is extremely unethical.

Why would it be squatting if you're open to licensing your technology at a reasonable cost to whatever manufacturer is willing to implement your state-of-the-art technology?

Why should the manufacturer have the incentive to fund parallel invention efforts to avoid paying such licensing fees? What if the upfront capital availability for such R&D funds created differential overhead profiles across industries, such that massive up-front R&D costs were now required in order to keep an acceptable op-ex profile?

This is a bit more nuanced than 'you aren't using your patent, you're clearly a vampire'.

Yeah but that's a general argument against patents, not against NPE patents being enforceable.

I agree btw

> The NPE category includes universities and researchers.

Good point. Aren't they more likely to develop patents rather than buy them, though? Or are there more edge cases missing?

The patents have no value if the ultimate owners are unable to enforce them. Once the patent exists, it is a tradable asset like copyright.

I'm pretty sure I don't like the idea that patents or copyrights can be transferred. There is the issue in both cases of cooperative invention or writing thought, and I'm not sure how to deal with that.

Even if they weren't tradeable this would still happen. The troll law firms would approach holders and ask to represent them in defending their IP, on a 'no win no fee' basis.

Well, if your dad came up with a great idea, but was getting a little old, wouldn't you want him to be able to pass it to you to see into action?

But an exception could be made for these

Or another idea, make patents non transferrable.

This proposal doesn't fix anything. If it were enacted, the current NPEs would just consult with the patent owners for a commission.

There are two major classes of problems as I see it:

(1) Many patents are granted but can be invalidated ("weak patents") if someone is willing to invest in the time in taking the patent holder to court.

(2) Patent fights are / can be extremely expensive, so the threat of litigation makes for great extortion material. If patent threat victims could petition the US PTO with evidence of prior art that the PTO missed during the original grant (bypassing the court), this would put a significant dent in the threat that NPEs use and would benefit both the industry that the victim is in and avoids paying 2x attorney fees in litigation.

Then people would just license them. It wouldn't change anything.

Most custom-written software is actually licensed, not sold (since the contractor is not an employee). It makes no real difference.

"The NPE category includes universities and researchers."

That seems utterly stupid. Universities and researchers by definition are constantly practicing, what's what academia is all about.

Universities do research, but rarely release commercial products. E.g. an university may design a novel audio compression algorithm, but it usually won't make a commercial encoder/player software or encoder/decoder chip to sell to audio-gadget manufacturers.

Practicing in this sense means using the patent to produce some product or service. Researchers are non-practicing by definition until they stop researching and start utilizing (assuming the patent is not something related to researching itself).

Because there's a Grey area. As an inventor, you might develop something for the express purpose of licensing it to other companies, or sell it to a company that does that for a business for a nice up front sum.

The problem is when patents last too long or thing are patented that are obvious and should have failed that criteria.

> The problem is when patents last too long or thing are patented that are obvious and should have failed that criteria.

This. Particularly in software, if someone who doesn't know about the patent comes up with the idea independently, that should be prima facie evidence that the patent doesn't meet the criteria of not being obvious.

Of course, the lack of knowledge of the patent may be subject to challenge, but this would eliminate a lot of ridiculous patents.

IMO the system needs to work on getting a better deal for the public in exchange for granting the monopoly that a patent holder gets.

For example after 5 years the renewal fees could relate to gross revenue from any device including that patent, or actual licensing fees. I like the former as it seems harder to work around [though you'll get components sold as products to companies residing in the same factory, I guess] and means that patents that don't contribute considerably to revenue will be dropped. This means people can still profit from useful inventions.

You could also underpin renewal fees with an exponentially growing base cost.

Wouldn't that basically eliminate groups like the MPEG? They don't create software or hardware, but they license the technology to everybody else. Should they be forced to compete with their licensees?

There should be a "sh*t or get off the pot" clause in patents, if you've not done anything with the patent in the 5 years since filing for it, it gets opened up to the public. In that case the MPEG group has done something (licensed it out to people doing something with it) so would be fine

If you have, standard patent rules


However, if a university invents something, it can sell that patent. It won't itself commercialise it. Therefore they are a non-practising entity, but you can see how that encourages innovation.

I think that would have a significant impact on how research universities are funded. The University of Wisconsin recently won a $200m patent lawsuit against Apple, coincidentally (?) just as they were losing $200m of state funding.

> “[Is Blackbird] doing anything thing that is illegal or unethical?” continues Cheng. “For the most part, it’s unethical. But it’s probably not illegal.”

If it's not illegal, more work needs to be done to make it illegal. Inventors always have avenues, moreso today than ever before.

While I agree it should likely be illegal, the solution to bad laws isn't more laws.

A better solution would be to

* do better examination of patents so that BS ones don't get issued

* allow third-parties to invalidate patents by showing prior art to the patent office for a nominal fee

* punish patent applicants who know about, or should have known about prior art

* if a patent is invalidated, force them to return all of the money they were paid for licenses and/or fees

See the lawsuits around the "Happy Birthday" song for similar problems:


IIRC, the settlement came about because the plaintiffs were able to prove that the song had been published and put in the public domain. They had found a copy of a songbook which was the definitive proof.

How did they find the songbook? They were given a scanned copy in discovery... with most things clear, and the date suspiciously blurred. After a few months of looking, they found a print copy which confirmed their suspicions.

i.e. it looks like Warner Brothers deliberately fudged the evidence. If the plaintiffs hadn't noticed, or hadn't been able to find a print copy, people would still be paying license fees.

When there is no punishment for lawyers who break the law, I think that "ignorance of the law" is an excuse. There is just no way that ignorance isn't a defence for me, while at the same time the lawyers use the law to attack me, and aren't punished for their violations.

> allow third-parties to invalidate patents by showing prior art to the patent office for a nominal fee

I think there should be a punitive part to this as well. If you apply for a patent that is later invalidated, then those that licensed the patent should be made repaid. And yes there should be a fee for trying to invalidate a patent, but there should also be a reward if they are successful.

> If you apply for a patent that is later invalidated, then those that licensed the patent should be made repaid.

I feel that this effectively says that nobody should be able to license their patent: they would need to hold all of their license fees in reserve against a lawsuit that could happen at any time between the patent grant and the end of the legal system.

That or buy insurance which will, no doubt be priced well above what a sole inventor could afford.

The net effect would be to accelerate the concentration of patent portfolios.

The worst case is that the money has to be repaid - how would insuring against that be prohibitive? If there's a 20% chance of invalidation, inventors take a 20% haircut.

But the invalidation chance will not be uniform, and the risk assessment done by insurance companies will bring the right kind of market forces to bear against frivolous patents.

And even aside from the economic impact, it's quite simply the right thing to do. If you shake people down with a government enforced monopoly that turns out to never have legitimately existed, keeping that money is immoral.

> The worst case is that the money has to be repaid - how would insuring against that be prohibitive?

Because, under the proposal, those license fees can be recovered at any time. Forever. You will never be able to go uninsured for any patent you ever granted. As your life wears on, regardless of whether you need the insurance or not, your net value is wound down.

Again, this means that only large companies will be willing to take the chance, because they can spread that risk across a portfolio and afford to defend it. A sole inventor cannot. They might obtain a patent, but under this scheme, they won't license it -- they'll just sell it. And it's just going to be to a large company, a patent broker or a patent troll.

> If you shake people down with a government enforced monopoly that turns out to never have legitimately existed, keeping that money is immoral.

I agree, and courts may be prepared to grant remedies in some cases.

But my point is that it is also problematic to tilt the field still further against sole inventors. That increases the proportion of giant companies and patent trolls, which makes the net situation worse, not better.

> those license fees can be recovered at any time. Forever.

Forever is too long. It should only be for the life of the patent. That might be a nice incentive to open up the conversation to reducing the life of some patents.

So how about once the patent holder is made aware of the prior art, any fees collected after that point are subject to return if the patent is invalidated based in some part on the prior work?

People claim prior art for all manner of things and again, this leaves the sole inventor in an unpleasant bind. A hostile large company could go around scaring sole inventors by saying "oh hey, we found prior art. Incidentally, would you like to license your patent exclusively to us for a pittance?"

> do better examination of patents so that BS ones don't get issued

The patent in this case is 18 years old. Some claim things are stricter now, others don't.

> allow third-parties to invalidate patents by showing prior art to the patent office for a nominal fee

This is possible[1] and the article mentions cloudflare is doing it.

[1] https://en.wikipedia.org/wiki/Reexamination

> If it's not illegal, more work needs to be done to make it illegal.

President Obama tried to reform patent trolls but Mitch McConell stopped that. Most of the patent troll shell corp are in Eastern Texas.

Did he? I don't remember that, but maybe I missed it. Also, the relationship between Eastern Texas and patent trolls is related to the branch of the Fifth Circuit court, whose justices are appointed by the President (currently, 3 Obama appointees, 2 GW Bush appointees, 1 Clinton appointee, and one Reagan appointee), not anything that Mitch McConnell has any influence over.

I've never heard a good argument against this so I'll say it here: Require that the plaintiff in this cases show demonstrable, actual, and quantifiable loss by the activity of the defendant. It seems like such a no-brainer that a business suing for damage to it's business prospects after someone stole their idea would have to actually show how it was damaged. Even allowing very flimsy evidence would do a lot to dissuade most trolls, because as every article points out, they don't make anything. And if they don't make or sell a product, then patent or not, they haven't lost anything or been damaged in any way.

Let's say I invent something really useful but also very difficult for an individual to take advantage of, like a new kind of airplane nosecone that shaves 10% off fuel costs for very large airplanes. Now, I'm not in the airplane business, and getting into it would take many, many millions of dollars. Probably the only way for me to make money on this would be to go to Boeing or some similar company and license my patent to them. Boom, I get my millions and everybody's happy.

If I were required to show actual loss, Boeing would see my new patent, just implement it without even bothering to talk to me, and when I tried to sue them, they'd say "you don't make anything, you have no losses," and they'd be right.

You could still sell your patent to an actual airline, and it could then use that patent exclusively and prevent airlines from doing so. In a sufficiently competitive market that might be enough. Boeing might buy your patent to prevent Airbus from using that tech and therefore gaining an advantage. Or if Boeing ignores your patent and just builds that tech anyway then they would expose themselves to future liability if Airbus later buys your patent.

Or you could sell the patent to an existing supplier of airline parts (and I'm sure there are plenty) which can then commercialize it. Or as a last resort if none of the existing players are interested in buying your patent, you could raise funding and open up a shop that manufacturers and sells nosecones, and then sue everyone for lost sales.

Ultimately I think it's much more useful to protect entities that actually make products and give them incentives to bring innovative products to market than it is to protect entities that simply want to invent things and extract fees from others. To me it would be a perfectly acceptable compromise.

All of your options encourage a monopoly on the specific patent and ignore the possibility of licensing.

Why would an actual airline buy your patent? Presumably you have to show it to them first for them to agree that it works and is valuable. At that point you've already handed over the valuable portion of the idea.

>Ultimately I think it's much more useful to protect entities that actually make products

I've said this before but it keeps ringing true. Entrepreneurial types in software are against patents because its not what they're good at. There's never any more substance behind the opposition than that.

Good point. This is why legal issues are complicated. :(

But the counter is that if you're offering the technology for sale, then lack of sales is an actual loss. The thieves could have paid your price, but instead chose to steal it.

At that point, penalties, etc. apply,

The law of remedies is very broad and most of it has roots in Equity, which gives judges broad discretion to make orders against litigants who fail to "come with clean hands".

I am not a lawyer, of course, but I dropped out of law school late enough to realise that you should always consult one before forming opinions about what is and isn't legally plausible.

I feel like this could be easily covered by an NDA though, and documenting the visit to Boeing. Plus, this is a physical product, I'm speaking more in terms of software patents where the friction to use is much, much lower. Perhaps my idea wouldn't work for general patents, but that's also not what I believe is horribly broken at the moment.

Thanks for the insight either way, great thought.

Patents are public, so there wouldn't have to be a visit or any data under NDA?

Patents are not about damages. A patent is a limited-time monopoly to an idea that you can then extract value from. Inventing something, patenting it, and then licensing it out is exactly the business model patents are supposed to enable. Companies that don't make anything are perfectly valid under this model. The real solution is to either make sure prior art and non-obviousness requirements are properly enforced or just dismantle the whole thing as unworkable.

>The real solution is to either make sure prior art and non-obviousness requirements are properly enforced or just dismantle the whole thing as unworkable.

Obviousness is the key issue for me. I suspect most people, even those who work in the technology fields, are not aware that it is considered essentially impossible to prove obviousness (source: I have worked as a consultant on several patent litigation cases). So you have the ridiculous situation that almost everyone in the relevant field believes that almost all patents granted are obvious, but almost no litigation succeeds in finding that same conclusion.

This has always bothered me. The standard is supposed to be "non-obvious to an expert in the field" and yet they hand out patents like candy for things that are obvious to the most casual observer.

My solution is to cap the number of patents granted every year to, say, 1000. Patents would be ranked from least to most obvious and actual prior art investigation would take place (because the number is manageable). The ones below the cap would be unpatentable.

As I said in response to a comment upthread, the existence of an implementation by someone who had no knowledge of the patent should be prima facie evidence that the idea is obvious to an expert in the field. That should get the patent invalidated.

The problem there is that you're trying to prove a negative, which is probably even harder than proving a patent is obvious.

Say Johnny Evilguy digs up your widget from the USPTO database from a Tor connection and then re-implements it. Poof, your patent is dead, and you can't prove he read it.

Karunamon is right - it would be virtually impossible to prove the second implementer never looked at the patent database.

Beyond that, over time things that were novel are no longer novel as the direction of technical development changes, so the timing would be important as well.

Perhaps we need to establish some sort of obvious-evidence protocol? Some kind of common sense argument that can be presented in the court of law and weighed against other evidence?

Example: Someone steals an apple to feed their hungry child. Yes, it's a crime, but sending the parent to prison isn't a solution; the child is still hungry, and now both of them will to varying extents have to be cared for by the state, all over a 59 cent Apple.

There is one. It is complicated.

The easiest way to prove obviousness is to find printed publications that describe the claimed invention. For obviousness, multiple printed publications can be combined as long as they are in a related field and there would be some kind of motivation for one of ordinary skill in the art to combine what they disclose.

Well, there is a protocol and it is this : "Nothing shall be deemed to be obvious" (except perhaps things that are so obvious that a three year old could invent them).

> A patent is a limited-time monopoly to an idea that you can then extract value from

That's the incentive given to the inventor. In exchange society is supposed to eventually get access to an idea that anyone can make use of.

There's a huge breakdown with this system though--the majority of software patents aren't written in a way that would allow someone to reproduce them. Or as you've pointed out they're so obvious that they would have existed without the patent monopoly grant.

If society isn't benefiting, there's no point.

The trivial answer against that is to say the actual, quantifiable loss is the licensing fees that the plaintiff would have otherwise been able to extract from the defendant.

We need to get rid of software patents. Patents were created to encourage innovation. Software patents simply rewarding the first person who patents what is almost always an obvious next step. That's not innovation.

Do you feel that there is a difference in innovation between software and other fields?

The obvious next steps you are talking about are usually only obvious in hindsight.

The difference that comes to my mind is costs. I suspect software "inventions" are usually very cheap to make (a person with a laptop is enough), compared to other industries.


Innovation is also driven by people trying to work around patents or otherwise discover alternative ways to solve problems.

I didn't notice the Amazon One-Click patent slowing innovation down while it was still valid.

I'm hoping their fight actually leads to a defeat rather than a submission. I have faith that Cloudflare will see this through but I also had faith that Carolla would too.


I've noticed a Techcrunch comment that makes this fight about software patents and states that forbiding them would be a good solution. I think that's a very wrong view to take. The software patent fight is worth fighting, but do not conflate the two issues. Abuse by patent trolls or non-practicing entities can happen even without software patents.

The law patch that shuts down patent trolls will have no effect on software patents, and vice-versa.

I don't think many do conflate the two, I think most people just don't see value in software patents.

Software is great because it has no cost to copy, so when someone creates a new algorithm it can be put in use everywhere applicable rapidly. This pace of advancement is so awesomely powerful that many do not appreciate how much positive change it can bring or how different the world was just a few years ago. An advancement in algorithms becomes and advancement for humanity pretty quickly.

Software patents are the exact opposite of this.

I will take it one step further and claim that patents on the whole are bad. I don't think they do what most Americans think they do in terms of incentivizing inventors or protecting small business.

EDIT - Also software is already covered by copyright, why does this IP deserve two kinds of protection and most other IP gets 1 or 0 kinds of protection.

It's not clear to me why such a hard distinction is drawn between software and hardware patents.

The usual argument for this separation is that "software patents are just math", but then aren't hardware patents are just physics (which, ultimately, is also just math)?

It feels like there's no clear line here, and whatever benefits, if any, are to be derived from patents, they apply equally to either side of it. Basically, either it's a net benefit to society, and then both kinds are valid; or it's a net drain on society, and then we should just get rid of them altogether. Or maybe set the bar for what is patentable much higher wrt to novelty and value (but, again whether it's hardware or software feels irrelevant).

I think I covered one major distinction well. Copy software has 0 cost, copying matter has some. This is just a re-wording and perspective change on "software patents are just math" angle.

Some people feel that since there is no copying cost, software favors the little guy more than with physical goods, so normal patent protection doesn't provide an benefit. These people claim that a big big evil corporation could start making a million of their widget per month and out compete them, but with software this cannot happen per their arguments. I think these people acknowledge that both physical and software patents get abused and are imperfect but feel that physical patents provide enough gain to offset their downsides.

I disagree with those people completely. I am unaware of ANY actual evidence that patents help.

Your distinction doesn't make any sense. Besides, you can patent a gadget without ever building one. In other words you can patent a CAD diagram. Then you could use your gadget patent to prevent anyone from legally building your gadget (in the US assuming a US patent)

I am aware of actual evidence that patents help, if enabling small companies to withstand pressure from behemoth companies is considered help.

Could you share this evidence? Because I haven't seen it.

They are currently necessary for the payment structure in the medical industry. I'm not saying they couldn't be replaced for that somehow, but simply removing patents without having something in place would be very disruptive there.

they are already far more disruptive everywhere else

I agree. Even "hardware" patents are too hard to defend to really be worth it most of the time (ex: fidget cube and other chinese kickstarter clones). You can't rely on patents to ensure defensibility to your business model, so they really just end up being money-sinks.

Not sure about how the Chinese patent system works but isn't it the case that these companies having U.S. patents doesn't really matter in China?

It matters if they want to sell to consumers in the US

A US Patent has jurisdiction in the US. You can bar foreign companies from legally importing your patented inventions. US customs will seize such goods at the port or elsewhere if they are aware of them.

That isn't a real solution. Searches are imperfect and this forfeits the entire foreign market. I think Musk has the right idea on novel inventions, the only way to keep them secret is to actually keep them secret.

An honest patent forces a description good enough to duplicate. Better to keep your secret sauce secret.

Just a nitpick, by definition what does not have protection is not IP.

Trade secrets.

As long as they remain secret they have protection, but the very act of outing them makes them not secret. I am aware of very few successful suits defending trade secrets.

Plenty of trade secrets are defended successfully.

Trade secrets cases are lost when the owner is claiming something is a trade secret when it doesn't meet the legal definition of a trade secret.

Trade secrets are useful for long-lived secrets like the formula for Coca-cola. But if someone independently develops the same thing you are trying to keep secret too bad.

Also, if the secret accidentally gets out (w/o theft) the trade secret enters the public domain.

Hmm. Sounds like a choice of definition but to my mind some IP that lapses in to public ownership (and so is not protected) doesn't cease to be IP, some IPR cease to exist but I'd still consider that work/invention/mark/design/database to be intellectual property just it's now owned by the public.

It probably doesn't matter at all.

copyright protects what you do. patents protect how you do it.

You copyright your source code. You patent your engineering innovations.

The ease of duplicating software based inventions is an argument why patents are important for such inventions.

Many tech startup companies that would have been steam rolled by IBM, and friends, have been protected by their patent portfolios.

Software patents should have the same requirements as real patents: you have to provide the full knowledge required to create the concept that is patented in them.

You want to patent sticky scrolling? Then put the entire source code required for it into the patent.

You want to patent your AI tech? Then put the entire code into the patent.

Additionally, we should make sure that trade secrets are not protected in any way, and decompiling code to find out what it does, and replicate it, is legal, as long as it doesn’t violate patents.

These measures would provide reasonable measures for companies wanting to protect their secret sauce, but also ensure that this technology is all public and available for research, and that after a few years it becomes available to competitors.

Otherwise we’ll end up with Google, Amazon, etc piling up knowledge and patents, without ever giving anything back to society.

And if you now try to argue with Google being "good", please take a look at ReCaptcha, where they take captcha associations given by users, but never publish the resulting recognition data (which then could be used by open source projects or researchers), or look at Android, where Google has now closed everything they could.

> we should make sure that trade secrets are not protected in any way

That's a little extreme. Trade secrets still need protection from outright theft (e.g. Waymo's allegations against Lewandowski) by those that get them as a part of their job. Similarly, trade secrets acquired through any other illegal act (breaking and entering, hacking, corporate espionage, etc) should also be protected. I agree that trade secrets arrived at through reverse engineering should be okay, but that's very different from saying that they should receive protection in any way.

I disagree with that. Because then companies just keep new developments as trade secrets – I want to push them to patenting everything, which would require them to open up the entire technology to the public a few years later.

If you protect trade secrets, companies will never release them to the public – as in the Waymo case.

If you don't patent, you lose the ability to go after others if they independently create the same invention or reverse engineer your product. And if you fail to properly document your use and someone else patents it, you could lose the rights to your invention altogether.

Keeping something important as a trade secret has enough risk already.

Yet, the waymo case exists, and waymo hasn’t patented or published anything, and probably won’t ever publish it.

That's false. The Waymo-Uber case contains patent claims, though 3 of the 4 were dropped at the judge's suggestion. So it seems that Google has patented quite a few aspects of their self-driving vehicles. The article I found didn't list the patent they're still pursuing against Uber, but here's the 3 patents Google decided not to pursue:




Good, now link me the source code and 3D definition files required to replicate that without any further work.

That’s what should be provided with patents, as I said in the original comment.

What if the source code is in a different language from the one you use? Should a patent force Google to port their code specifically for you? What if the 3D files are for an expensive program that's different from the one you use? Should a patent force Google to convert their files for use with every 3D modeling program?

Patents are about telling you how to do the work, not about doing it for you.

> Then put the entire source code required for it into the patent

Some do. But patents already have an enablement requirement. This means that they must teach in sufficient detail for a person skilled in the art to carry out the claimed invention. That's what the whole Detailed description of the invention section is. Skip the claims and read the description. You might want the code; me, I want the design doc. That section should be clear and if it isn't, chances are it isn't enabling.

If you don't enable, you'll probably get an office action (rejection) and if you don't (lazy examiner), you'll definitely lose when the patent gets challenged.

That's a nice thought, but most software patents are written to be as broadly applicable as possible, not to be a good guide to implementation.

In fact, most patents are written to be as broadly applicable as possible. The enablement requirement applies to all patents.

Seaborg patented element 95. That's pretty broad. However, people aren't saying get rid of manufacturing utility patents because folks are patenting elements.


All US patents have the same standard. Among other things, they must enable one of ordinary skill in the art to practice the claimed invention without undue experimentation.

For SW patents, if your invention uses machine learning but is not inventing a new kind of machine learning, there is no need to describe how the ML package works. It is a black box.

Similarly, a gadget patent does not need to describe the metallurgy necessary to make aluminum sheet metal or how to make plastic.

The same standard applies to biotech patents. Though, some biotech patents require proof or disclosure of experimental results (e.g., gene sequence listings, etc.) this is because some bio inventions would be very difficult to reproduce without the extra information.

Trade secrets are not protected from independent discovery. Reverse engineering is generally fine, though it may violate your license or the DCMA depending on the details.

Copyright is enough, software patents do not exist in Europe and it works as well as in the US. I never saw a single patient which I would define myself as justified, most patents are something I could come up myself with in less than an hour of reflexion.

Software is already protected by copyright. It was never meant to be patented. In fact, I believe you're not even supposed to use the word algorithm in your patents. You have to say something else, like system.

Software patents are pointless and the only reason we still have them is it takes Congress forever to catch up with innovation. Patent trolls know this and are capitalizing on the period where they can shake down others while they still can.

This reminds me of an altercation in the street that my neighbour reported overhearing some years ago:

Aggressive Woman: You need to watch your step, my husband is a criminal lawyer

Woman she was trying to intimidate: (deadpans) Aren't they all ?

Someone should figure out a way how to put these extortionists in prison for protection racket.

They're way too rich for that to ever actually happen. I agree, though.

By prison you mean jobs in state government, right?

Welcome to Massachusetts.

> It’s for this reason that Prince sees Cloudflare’s primary mission as figuring out how to increase Blackbird’s costs. Explains Prince, “We thought, if it’s asymmetric,” because it’s so much cheaper for Blackbird to sue than for a company to defend itself, “how can we make it more symmetric? And every minute that they spend having to defend themselves somewhere else is a minute they aren’t suing us or someone else.”

They should take it a step further and apply the Thiel strategy of finding people with grievances against the founders of the patent troll and support individual lawsuits against them.

I'm in tech but not in the valley. How accurate is HBO's representation of patent trolls?

It's a documentry, not just the patent troll part, but the whole thing.


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