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?
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.
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.
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.
In this case, anyone is free to use the algorithm, and Google won't go after them with the patent.
Are any attorney fees you might win actually comparable to the real cost to cloudflare?
Who says lawyers can't live dangerously? ;-P
I don't understand... Couldn't they expand the project to help others in a similar situation?
"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)
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.
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.
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.
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?
Patent law already handles this providing pharma patents additional protection time for regulatory delays.
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.
> 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?
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)
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!"
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?
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.
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.
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 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
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. :(
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.
Edit: a dismissal is even less precedential than a summary judgement, as summary judgements come after discovery, unlike dismissals.
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.
NOTE: This disposition is nonprecedential.
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.
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.
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.
The system is broken.
> 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.
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...
edit: nevermind the lower court opinion dismissed the case but it is not clear if it invalidated the patent in question
"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...)
That seems more common, as does law firms who operate as bill collectors.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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"  is a non-trivial achievement.
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.
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.