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Winning the Blackbird Battle (cloudflare.com)
620 points by jgrahamc 66 days ago | hide | past | web | favorite | 138 comments



Hi. Cloudflare GC here. Some informed comments here. Feel free to AMA.


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

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


1. It's all about underlying incentives. Short term those will always counsel early settlement, if there's enough awareness and collective action to take the long-term view, then we might be able to push incentives in another direction.

2. Some of the existing collectives combine their IP assets to give each other a license to each other's patents or the benefit of any future settlements, which limits the exposure a bit. Not sure if something like underwriters of patent troll insurance could combine the incentives enough into long-term view to make that worthwhile.



The same Google that did this: https://arstechnica.com/tech-policy/2018/06/inventor-says-go...

:thinking:


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

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



Those are both responses to first being attacked.

BT attacked Google with a patent lawsuit in 2011. And Google certainly held the belief that Uber was acting quite nefariously toward Waymo.

Punch someone in the face, do not be surprised if they defend their self and come back at you.


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

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


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


There is no legal necessity to patent first, only to publish first if you're only using it for straight defense.


patent troll defense as a service: https://www.unifiedpatents.com


Did you get fees/Do you expect to get fees?

Are any attorney fees you might win actually comparable to the real cost to cloudflare?


Not sure yet where costs and fees settle out. Generally, in US system you shouldn't expect that fee awards would shift the incentive structure.


> Feel free to AMA.

Who says lawyers can't live dangerously? ;-P


Given that part of your motivation is to help others in a similar situation from being trolled in the future, were you disappointed that the CAFC issued a non-precidental summary ruling? Is there a way to petition the court to issue a full opinion that would be binding on lower courts? If so, did you consider doing so?


Did you engage any experts to provide any written opinions or testimony about the technology? (just curious about whether this is a factor at all.)


Do you intent to stop providing material support for known terrorist organizations[1]?

1. https://m.huffpost.com/us/entry/us_5c127778e4b0835fe3277f2f


Will you folks please stop breaking the internet?

And by that, I mean forcing javascript bullshit on HTTP GET requests? Get requests are definitionally idempotent, and shouldn't require me to run garbage and deal with recaptcha.


GC has no scope there really...


Well GP was complaining about garbage, that's exactly the job of the GC.


It seems that in this thread GC means General Counsel not Garbage Collector. ️


I guess he did say AMA...


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

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


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


[flagged]


This isn't reddit.


I didn't understand this too. It read as if they reached a settlement with Blackbird and part of that settlement involved taking down Project Jengo. From the site:

"The larger bounty (up to $30,000) will be spread among those submitting substantial prior art which reads on any of the 34 other outstanding Blackbird patents or their 3 in-flight patent applications and could lead to the invalidation of these dubious patents"

Any reason why they're wrapping this up if this hasn't yet been achieved? (those patents are still active)


The judgements seem to indicate that the patents are too broad to enforce, so anyone trolled again can just cite Cloudflare’s win. IANAL, but it looks like the patents are effectively useless, whether or not they’re valid. Invalidation is a separate process with the Patent office.


There are already a few prior art crowdsourcing tools, such as Patroll from Unified Patents and Patexia.

https://patroll.unifiedpatents.com https://www.patexia.com/contestslist


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

We'll have to see what they say about it.

I was originally wondering and going to ask djk44, but going back to the original Project Jengo post it was very specifically about killing Blackbird (allocating 40% of its funds to the specific '335 patent and 60% for eager invalidation of the rest of their patents library), so cloturing the project after '335 has been burned makes sense. Hopefully they'll announce a more general project / system, but we can only wait and see.


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


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

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

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

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

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


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

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


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

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


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


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


For 15 years nobody can use a invention, even if willing to pay. How is that in public interest?


I'm guessing the practical meaning is that the inventor is not required to license the invention "at a fair and reasonable" price but is free to ask whatever he/she feels is appropriate. I could imagine a case where the industry the inventor wishes to market to is controlled by a cartel which colludes to offer a low price for the invention. In this case, the inventor may wish not to sell or license in the hope that the cartel breaks up or gives in.


The public also benefits from people inventing alternatives to patented inventions.


That's debatable. Your point is that patent would encourage diversity which I'm sure it doesn't change much. Worst it sometimes prevents advances


How’s that good for the public?


More alternatives to choose from.


Don't patent trolls generally have hundreds of random unrelated patents they sit on? That sounds very different from a "small inventor who's invention has been stolen". Maybe we can limit the number of simultaneous patents you can sit on?


Shell companies and M&A make this a difficult proposition.


> Are you aware of how long it takes drugs, for example, to get from the patent stage to the commercialization stage?

Patent law already handles this providing pharma patents additional protection time for regulatory delays.


It's hard to draw a legal line between a few lawyers with some bad patents and a garage inventor struggling to make his idea profitable.

Not because those are hard to differentiate logically, but because one side is all about manipulating the legal system while the other has no knowledge of it nor funds with which to navigate it. Also, the system is supposed to protect the latter from big corporate legal departments that want to steal his idea. It's a hard problem because it's profitable for bad actors to get wrong decisions made.


This is a great conversation. Cloudflare certainly sees the value of the patent system, we have a number of our own patents that we employ defensively to make sure we can continue to run our business securely.


> Cloudflare certainly sees the value of the patent system,

OK...

> we have a number of our own patents that we employ defensively to make sure we can continue to run our business securely.

Huh? This doesn't support the beginning of the sentence at all. If your only use of patents is defensive, then the system is all cost and no benefit to you. Getting rid of the system would give you all of the "benefits" you currently enjoy. What value are you seeing?


Defensive patents are for making cross-licensing deals when IBM, Apple, and so on, come calling with their stack of patents to demand a slice of your revenue.


Right... The parent's point was that saying "we see the value in the patent system: it allows us to defend ourselves when others use the patent system against us" doesn't really make logical sense.


Right, but you wouldn't need defensive patents if patents didn't exist... this would be like arguing "I am glad we invented guns, because we need them to defend ourselves against people with guns"


> then the system is all cost and no benefit to you.

That's not strictly speaking true.

Having and using defensive patents has the advantage of disadvantaging competitors who don't have defensive patents but wish they did.

(Not that this is necessarily what djk44 would like to state as his reason for seeing benefits, just as a general fact)


Rephrasing your point: By damaging some other people more than it damages you, the system may hand you a relative advantage over people who are hit more badly than you, even as it hurts you in absolute terms.

This is not a compelling argument that the system has any value. "Sure, it's destroying value at our company, but that's fine because it's destroying even more value across the street!"


> It's hard to draw a legal line between a few lawyers with some bad patents and a garage inventor struggling to make his idea profitable.

You don’t necessarily have to draw the line. One potential legislative solution would be to simply throw up our hands, admit we can’t stop one without stopping the other, then deliberately choose to sacrifice the (vanishingly small number of) good actors in order to get rid of the huge number of bad actors.

How many lone garage inventors are out there fighting big companies over their legit inventions vs. the number of ridiculous patent troll cases?


Industries like the chemical and pharma industries would look very different without patents. A place like CISRO would not be able to exist absent patents.


The X-Plane guy and his dozen person company went through hell trying their assess off to prove they were being trolled.


> Is there something about the US legal system

At least one thing about the US legal system encourages patent trolls as compared with other countries: the US does not have the rule that many other countries have, that the loser of a lawsuit pays the winner's court costs. This affects many areas of US law, not just patent trolls.


This is not always a good idea - Private Eye has almost gone bankrupt before trying to pay court costs for libel - and subsequently facts emerged to show they were not libelling but in fact correctly reporting.

I doubt there are legislative fixes that won't make things worse - perhaps We can only hope for sound and robust rulings from engaged and informed judges.

(don't laugh)


...and yet, as I understand it, other countries just don't have this problem, not at anything like this scale, anyway. It cannot be the case that a fix is impossible, and yet every other country on earth has managed to fix it. We have to be doing something wrong.


...and this is the obvious difference that seems reasonable to blame, yes - if frivolous lawsuit is low-risk, low-expense action, why not do it.

In reality, looser-pays is usually more subtle, the winner is typically awarded only some standard rate that good lawyers don’t charge, but it seems sufficient for deterrence nonetheless.


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

I suppose there are sneaky ways around this, such as marketing a product that features the patent but is otherwise inadequate.

Never underestimate the resourcefulness of patent trolls


Yep, you can make one simple flashy thing, say it does X feature, sell it to your spouse and say it's been commercialized


Haven spoken with a few friends of mine who are in the position to know better I guess I can answer part of my own question. Apparently if a law exists that is obviously broken it's usually because there are vested interests interested in keeping things that way. Since virtually every large tech company from Samsung to Facebook and now Cloudflare has had to fight patent trolls, the reason the system remains broken is probably that these companies themselves benefit from the current brokenness of the system and the benefits they get far outweigh the costs of fending off the occasional troll. It won't surprise me if these companies themselves sit on large portfolios of overly broad patents they never intend to use except to fend off competition or initiate their own patent litigation. OP sort of hints at this in another post on this thread.


It's not clear and obvious, or simple, to craft legislation that prevents trolling without also affecting the legitimate rights of non-troll patent holders, applicants, and licensees.


Somebody exchanged money for the patents to give these trolls. Blame them.


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

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


> Unfortunately by not going to trial, they didn't set any precedent

The article says:

> We’re happy to report that on Wednesday, the U.S. Court of Appeals for the Federal Circuit issued an opinion affirming a lower court decision dismissing the case brought by Blackbird Tech.


The lower court decided not to hear the case because the specific patent was unenforceable. That won't impact any future cases on other patents.


I’m not sure what your preferred outcome would be? A court ruling patents in general unenforceable is rather unlikely. “Patent trolling” obviously isn’t a legal concept, and would be hard to define. Any definition would actually just loop back to patentability, with exactly the result of this lawsuit.


Probably creates a freebie template of sorts for suits using that specific patent. Supposedly Blackbird has many more though.


That's not a precedent. That's just affirming a summary judgment and saying, "Yep, they're right, we're not gonna hear the case either."


The lower court can set a precedent too.


It can, but it made a summary judgment. My understanding is that precedent isn't set with a summary judgement.


The upper court's opinion was a summary judgement the lower court wasn't:

https://blog.cloudflare.com/bye-bye-blackbird/


The lower court dismissed the case following a preliminary motion before trial... How is that not considered a summary judgement?

Edit: a dismissal is even less precedential than a summary judgement, as summary judgements come after discovery, unlike dismissals.


Summary Judgment is persuasive precedent. A higher court affirming Summary Judgment is controlling precedent for that circuit and highly persuasive precedent for other circuits.

The ruling here is limited and narrow as to the particular patent in question, but it is precedent. Your hopes of being wrong are fulfilled.


The ruling's first line is:

NOTE: This disposition is nonprecedential.


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

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


This particular case is explicitly non-precedential as is indicated on the top of the first page. The decision was made under Rule 36 of the Rules of Practice of the Court of Appeals for the Federal Circuit which allows the Court to enter a judgment without an opinion. The case might be precedential in the business logic sense in that potential trolls will have to alter their calculus to take into account that companies will no longer roll over and pay token amounts simply to exit litigation. Also complicating their calculus is an earlier decision from the Supreme Court (Octane Fitness, LLC v. Icon Health & Fitness) which effectively made it substantially easier for a prevailing party to recoup their legal fees in patent related matters.


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

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


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

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

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


It does. Spend $X00,000 defending against us, or $X0,000 on a settlement is the proposition they put out.


Also Blackbird holds at least 73 other patents [1], some notably shitty, with which to sue the next poor sap. The sap doesn't even need to require buttock lift support [2] (I am NOT making this up!), for example, in order to be sued and perhaps pay the extortion fee out of court to be rid of it.

The system is broken.

    1. https://www.cloudflare.com/blackbirdpatents
    2. https://patents.google.com/patent/US7081036


edit: I just noticed that the CAFC opinion is designated nonprecedential

> The court’s ruling comes in response to a preliminary motion filed by Cloudflare under Section 101 of the U.S. Patent Act. That section defines what sort of things can be patented. Such motions are generally referred to as “Alice” motions because the U.S. Supreme Court held in a 2014 case (Alice Corp. v. CLS Bank Int’l) that a two-part test could be used to determine patent eligibility based on whether something is more than merely an abstract idea or at least creates an inventive use for an abstract principle. The Alice test helps to determine whether something is patentable subject matter or an unpatentable fundamental concept. Judge Chhabria found that Blackbird’s ‘355 patent was too abstract to be patentable subject matter.

(https://blog.cloudflare.com/bye-bye-blackbird/)

This ruling was then affirmed by the CAFC. In what way is it non precedential? I sure wouldn't want to be Blackbird trying to assert that patent in a new litigation...


The patent wasn't revoked. Blackbird can continue to collect from parties it has already sued who settled, and can sue new parties if it so chooses. The courts who hear those cases aren't required to respect the previous judgments -- the appeals court ruling even says "Note: This disposition is nonprecedential" right at the top. And even if courts would potentially find the previous ruling at least persuasive, respondents would still have to undergo significant court costs just to mount a defense, and many will still choose not to do so and instead to settle, which Blackbird knows.


The patent was invalidated at summary judgment -- it is not a patent anymore.

edit: nevermind the lower court opinion dismissed the case but it is not clear if it invalidated the patent in question


It is clear -- it did nothing of the sort.


Do you have a link to the Fed Circuit's opinion?


The whole opinion, such as it is, is right there at the bottom of the blog post. It just says "Affirmed."


The patent was invalidated on common/conventional grounds. There is no new precedent here.


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


In this case, the law firm is the patent troll. Two lawyers formerly from firms that used to fight patent trolls. So, I suspect shame isn't going to bother them.

"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." (https://blog.cloudflare.com/standing-up-to-a-dangerous-new-b...)


For a second I thought that that would be an "About Us" on blackbird's site, because the first part makes it seem like a business pitch. Then I thought "why would you advertise that you bring dubious lawsuits?"


>In this case, the law firm is the patent troll.

That seems more common, as does law firms who operate as bill collectors.


Ok maybe instead of shame, it just important to document and track their history, in case it useful to future researchers.


We should also name and shame the politicians that accept money to pass laws for these trolls.


I’m not aware of any laws that have been passed to benefit trolls. They don’t really need any.


They are mostly the same as those ones who help fight against patent trolls. They earn money from both sides.


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

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


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

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


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


That isn't entirely the purpose of defense attorneys. They are also responsible for ensuring clients get the "correct" punishment for the crime. If they weren't present there would be no check on heinous sentences for minor crimes.


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


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


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


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

What you call "attack" is also called "being made whole".

I don't know the details of the case. But unless there is egregious reason to forbid a potential plaintiff from filing, then let them commence. I have no clue who's right here; I wasn't in the courtroom.


It's not being made whole if it's a spurious case, which we now know it was (not because they lost, because of how they lost), and the lawyers should have known from the start. So they're either incompetent or unethical.


I find a distinct difference in the moral justification between civil suit plaintiffs and criminal court defense attorneys.

Edit: Perhaps could be clearer. I feel like attorneys for civil suit plaintiffs have latitude to use their moral compass in deciding whether to take a case. Much more so than a criminal defense attorney.


Civil suits are the main route regular people have to get compensation when abused by corporations. Or just small companies that get abused by big ones. Citizens almost always lose against companies in the executive or legislative branch - it’s only in the judicial branch where we have any hope of prevailing.

The most aggregious frivolous lawsuits make big news, or at least the ones that look frivolous when portrayed from the right perspective. You hear less about the day-in, day-out work the civil justice system does in keeping people honest and holding society and the economy together. There is a reason companies from around the world sign contracts with one another stating that their disputes will be settled in US courts - because it’s the legal system they trust to make the most consistent and fair choices.


What's your point? Nobody is criticizing the existence of the civil courts.


Attorneys who work in civil and criminal law can be defending the powerless, keeping the powerful from facing justice, or somewhere in between. It depends on the particular case.


> Attorneys who work in civil and criminal law can be defending the powerless, keeping the powerful from facing justice, or somewhere in between.

In this case, the lawyers were representing themselves. They not only represented the troll business, but actually are the troll business.

> It depends on the particular case.

I think that's what this thread has been saying.


I responded to a particular comment in the thread.


Patent trolling is unethical, it's basically a racket and extortion scheme.


No, it is not.


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


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


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

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

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

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

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

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


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

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


I agree - perhaps we need an anti-Project Jengo where we look for software patents that are worthwhile and enhance the planet. There must be some?


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

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

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


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


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


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

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

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

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

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

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

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

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

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

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

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

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


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


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


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


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


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


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


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


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


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

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

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

[0] http://www.cafc.uscourts.gov/sites/default/files/rules-of-pr...


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


> There was no need for the Cloudflare lawyers to produce 900 pages of briefs

Is that a statement based on empirical evidence, or is it based on how things "should" work? In my dealings with courts, "a few pages and a couple of hours" isn't enough to settle anything whatsoever. If the plaintiff provides 650 pages, that's going to mean a lot of claims and arguments that have to be rebutted no matter how ridiculous they are. Right or wrong, that's the way it is.


It reminds me of Newegg patent troll case!


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


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

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




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