"what safeguards should be put in place to make sure that attorneys who take the oath are held to a standard beyond mere greed or base opportunism"
Cloudflare really is making the world a better place in this case, by fighting back against the kinds of legal weasel who exists purely to be a money leech with no benefit to anyone but themselves.
The standard for permissible arguments in court is having a good faith basis in law or fact, or a good faith argument for extending or changing the law. It's not clear to me that's wrong. Fee-splitting with non-lawyers is the bigger issue. That is impermissible for all sorts of good reasons.
Out of (sincere) curiosity, what are some of those reasons? Thanks.
That's for the bar to decide. But what do you mean "... at all" ?
The sad truth is that many hard working companies have had to fork over thousands of dollars to law firms that happen to hold patents but which don't have any means or even intent to deploy the inventions in those patents. These law firms simply exist to extract money by virtue of holding vaguely-worded garbage patents. THAT's what a patent troll is and THAT is improper.
>That's for the bar to decide.
and the bar decided those guys did nothing wrong ...
What’s improper about creating liquidity in the market for inventions? And patents don’t require the holder to make or sell anything—they give the holder the right to prevent others from doing so.
And it's not creating liquidity in the market for inventions. It's creating liquidity in state-sanctioned and enforced monopoly rights of inventions.
And the biggest companies in the world aren't the biggest because they have patent protected monopolies.
I think it's improper for someone not using IP or not the original developer of IP to be able to make IP claims. If you didn't develop the tech or aren't using the tech, you shouldn't have any claim over the usage of that tech.
The same goes for "defensive" patent strategies. They're an affront to the spirit of patents.
Congress, the Supreme Court, and hundreds of years of precedent would disagree.
assert_eq!(legal, moral || ethical || proper)
> thread 0 panicked
For us just to sit back while you guys prostitute us for all our worth so you can pay for your 3rd wife's divorcing you?
They have very effectively demolished one patent troll. This will ensure that only people who are very sure of the validity of their patents will use them against CloudFlare. Does it make any other targets more scary? Is there that a patent troll wouldn't do now that they would have done previously, apart from attack CloudFlare specifically?
One less patent troll is definitely a good thing, and I'm always happy to see someone fight back. I think we should be careful not to assign too much scope to the victory though.
Cloudflare set an example that anyone with similar resources can follow.
And Cloudflare shared many of the results of their work, including an extensive prior art portfolio. This can be useful to anyone who gets sued for these and possibly similar patents.
I really hope more companies will follow Cloudflare's example.
That doesn't seem like that big of a setback.
But in reality it's a lot more like listening to Adrian Veidt after he pulled off his scheme in Watchmen. Diabolical, but you can't help but respect them for it.
My point is that this is a pretty transparent flex of corporate might. It's hard to escape the subtext of "Fuck with us, and we will grind you into the dirt".
What would be better if there was a legal defense fund that were to support small companies and do this for them. Or better yet: a legal system that doesn't allow this sort of predatory behaviour.
Still doesn't change the fact that I wouldn't want to get on the wrong side of Cloudflare after seeing this.
This guy is a legend.
a) what would you recommend, if anything, around personal activism to help to advance the system of patent laws (in US markets)
It seems that you had received as help, anonymous donations, but it means there is an opportunity for more public awareness/participation in some form.
b) for a small company with little revenue, what means of protections to they have? in case they get attacked by these types of racketeers (not just for money, but as revenge, or anti-competition tactic)
For example, are there effective (aggressive, and not just waiting) insurance pools or other similar collectives to participate in ?
All in did cloudflare have to spend a modest amount of its money to retaliate in this way?
I think public shaming of the layers involved by name would also be appropriate - bullies often don’t like being called out.
Would be keen to hear whether the ethics inquiry had any effect.
Also it is hard to measure the actual minimum cost required. Cloudflare might have retained a top class firm to fight this, perhaps they could have been represented by a very affordable one person shop as well. What cost should the court award ? Former means cases against people and companies with resources will be very difficult for fear of losing, later does not solve the problem of economic incentives
Legal insurance ("Rechtsschutzversicherung" in German) helps here.
> What cost should the court award ?
In Germany courts can order that one party has to cover all associated costs or that the cost be split / limited to "reasonable" amounts - this ensures that everyone has viable access to legal defense.
Any options towards that end?
> the federal litigation process still lasted nearly two years, involved combined legal filings of more than 1,500 pages, and ran up considerable legal expenses
With such considerable prior art evidence in your favor, can you offer any advice on lowering the cost of defending yourself?
Specifically, this phrase: "The court in exceptional cases may award reasonable attorney fees to the prevailing party." (Section 285 of the Patent Act.) They loosened up what is "exceptional".
Software patents, business methods and other fishy stuff - I would pretty much love those eliminated completely.
It would almost be like a security company, where you have a sign, “Protected by AntiTroll.”
See the section titled: "Step 4 — File complaints against Blackbird attorneys by bar association disciplinary counsel in Massachusetts and Illinois"
A) Cloudfare can defend, but a mom-and-pop small business cannot. A startup cannot.
B) China can hedge against western bureaucracy and gain unprecedented speed in innovation and new ventures - precisely because of hard pressing and blocking issues such as patent law.
C) Even if there were no patent trolls, China can still manage to steal, copy, espionage or fearlessly innovate - why? Because of three things - culture, law and international relations.
In my opinion, Patents need to end. Yep, completely get rid of patents. Not shorten it, not amend it, just simply stop taking new applications. Existing patents can be still be active until they expire (or better yet, shorten the expiration date). Ideas are cheap, execution is where companies need to compete.
This is not a level playing field for the rest of the nations. China gives no fucks about law and the west is gonna watch China lead the way in exponential progress while we are still playing in the dirt with our little patent litigations.
I wonder if people here have felt this before: Get an idea, start building a prototype, demo it to a friend, friend suggests checking google.com/patents, excitement collapses :(
A patented invention should be described in sufficient detail, and the description is made public. This is how important inventions do not get hidden form sight forever, even if they don't bring any profit.
This also allows people (including governmental agencies) have an idea of what is being sold as a new invention. Would you take a new medicine whose chemical formula is a tightly guarded secret?
I think that what makes a patent worth it is the first-mover advantage. What makes a patent problematic is a long expiration time which does not depend on its being used productively.
The best idea I saw is an exponential patent fee. Say, first year it's $100, second, $400, third, $1600 (all amounts acceptable even for a lone-wolf inventor), ... tenth, $26M, ... fifteenth, $27B.
This way any useful invention can enjoy a patent coverage for some time, and afford it for some more time if it's bringing in significant profits, but sitting on a patent for a long time would be impossible even for the richest companies. Keeping a portfolio of unused patents would become pointless, too, and patent trolling, likely unprofitable.
Patents could've worked somewhat originally, at least in principle, but soon people started gaming the system, rendering the patent system worthless. Except for maybe certain domains patents do not currently host important inventions in the meaningful sense. Especially in software, execution matters much more than the actual idea.
And the execution part usually is akin to a trade secret: for example, it's not so much what Google and Amazon do, it's about the mountain of work they did in building all that and also making it scale. That's the non-trivial part that you couldn't replicate even if you read and bought all their patents.
A low-hanging fruit of fixing the patent system would be to reduce it to a mere notary service of timestamping ideas. Establishing the patent de facto would require the patent to be defended in courts: this alone would cut down the amount of bogus patents.
Defending a complex, vague system would cost a lot of money, balancing the usefulness of gaining a court-verified monopoly on the idea. On the other hand, a simple but truly novel idea would be rather easy to defend, even for a private person. There's no downgrade to the current state of matters: it's not as if the current patent system would allow individual inventors a low-cost way to sue and win big companies trying to abuse their patents already.
There are other ways but in any case gains need to be balanced with cost, that's the only way to make people and companies prioritise and valuate the true worth of their ideas. No party is going to spend a lot of money trying to defend a vague patent that was written only to win the first-to-file race and game its coverage within the patent system. They already know it's bollocks.
The law says you can't get a patent for an idea. Which is right, ideas are cheap.
It sounds more like you're problem is "insufficiency" of the disclosures. No need to throw the computer away because one stick of RAM doesn't work.
And the problem is that the patents of today do their best to be as vague as possible (in order to maximize the "area under patent"), while either being obvious or not revealing sufficient details for one to recreate the patented invention from the patent. Not to mention that patents lengths are not in line with exponential rate of progress.
So if they already fail at the functions they were created for, how worse are they from trade secrets? Maybe what we should do is not only get rid of patents, but also reduce protections around trade secrets? People will keep trying to make money anyway, this will still lead to inventions, but that way, at least society will get to make use of those inventions.
(Drug research is an exception I'm not sure how to handle, though.)
Not always, but in general, a proof of concept prototype (built in parts, at small scale, or simulated) will be an order of magnitude cheaper than a production unit.
Would a white paper for a free energy generator be accepted to a respected peer reviewed journal? Probably not, but there are tons of these truely worthless granted patents out there diluting the system. I strongly believe we need inventors to prove their claims via demonstration, one way or another.
Drug manufacture however seems more like a profit thing. Open up the results for companies to make generics. Profit motive will ensure efficient delivery.
They found that companies took an average of 7.3 years to win FDA approval, at a median cost of $648 million. Only two drugs had research costs over $1 billion. Adding in the cost of capital at 7 percent increased the median research and development cost to $757 million—less than a third of the Tufts estimate.
In the situation of an imaginary future where patents are scrapped, pharmaceutical companies will be unlikely to continue to invest in the current fashion. I took GP to suggest that this would be an issue. I was trying to make the point that tax payers through something like NIH grants would be to take up the slack. Making the research available patent free so that generics can be manufactured.
Obviously this wouldn't be a simple transition and incredibly unlikely. But its an interesting intellectual exercise to think about.
The idea that they were meant to serve as a way to reduce trade secrets falls flat in the face of the fact that most places with strong patent and copyright law, also have strong laws protecting trade secrets
The US patent law, which I referred to, is not as old, and it definitely talked only about inventions, and explicitly required drawings, explanations, etc to be made available: 
Refutal: raise the cost differently depending on time to enter the market?
Then some statistician will have to be paid to estimate this, meaning patent applications are much more expensive.
I hope you think my comment was constructive.
Does anything in the early history of patents backs the assertion that they were invented for that reason?
"Patents might be useful as a way to fight trade secrets", is not the same thing, and could even be true enough; I think "patents were invented because..." might be a back-port of more recent thinking on to a history that does not support it.
Its becoming less and less and issue these days. Top secret product frequently leaks. Reverse engineering becoming better and better. Good luck keeping thing secrets, the cost will be higher and higher.
You can still get an FDA approval for secret-formula products; a good example is Coca-Cola.
You can be sent to prison for 15 years for trade secret infringement. It is criminal under both federal and most states' laws.
Another similar industry is aero space but they mostly work by secrecy. This is not viable in pharma where I believe more transparency is required for safety.
If we want safe meds we need to pay for the safety somehow. But that price needn't affect every other industry.
Therefore, it would be much better to fund it like, e.g., high energy physics research.
Do the research funded by governments, and the pure production of patent-free medicine can be done by the industry who, compete on price at a set and defined quality.
Edit: acronym typo. Thanks mnw21cam.
If everyone did that, we wouldn't need all these fancy new drugs.
- there is very little evidence that patents are beneficial
- there is a ton of very evident cases like this where patents are just used to rent-seek or destroy
- patents are collected by companies to inhibit competition across industries. Imagine if Intel, Nvidia, AMD, ARM, etc were actually threatened by competition from newcomers
- patents are the government giving a monopoly on using certain information. Information should be free
How is that good?
What's not to like and where are patents in this picture?
Patents in software space are an abomination.
The solution is actually easy, and AFAIK has been at one time in the books too. Require a physical prototype with the submission. But I would go further. We should also require that the information in the patent, and any publicly available resources it references are together sufficient to replicate the prototype build.
If the rebuild cannot produce the same results as the application claims, then the entire application is invalid. (This limits the incentive for patent claims to be overly broad.)
Want to patent a process improvement? Fine, submit the description, the claims, the prototype implementing the improvement - and the accurate build instructions to replicate the design.
Think your setup would be too costly due to the requirement of the physical prototype? Works as intended: now you have an extra incentive to improve the invention to the point where it is actually useful and cost-effective.
And if the cost of submission due to prototype requirement prevents you from submitting for a patent in the first place? Excellent, the cost of entry is already high enough. Now you have to keep innovating to maintain your competitive edge, because there is no patent moat to prevent competition in an obviously expensive, potentially high-margin field.
The last one may sound like a weird one, but it serves a very specific purpose. You are allowed to keep trade secrets, but if you choose not to patent them and your competition does (because they figured out a more cost-effective way of doing it), then you just got what you deserved.
And the final nail in the coffin of overbroad patents would be to turn the patent office incentives around. Make the rejection of an application be financially the most beneficial result. Allow resubmissions, but make them exponentially more expensive, so companies can't just bombard the patent office with junk.
If you think it's sensible to require manufacture first, before a patent is granted then I don't think you've thought about this enough.
(fictionalisation) "right I tooled up my new design for a wafer fabrication plant, but someone else came up with the same idea and they got the patent last week, now I'm $20M in the hole and did so much needless duplication; now there's no money for us highly skilled people to make further improvements"
> “Over the past decade, China has demonstrated serious resolve to enforce an effective IP rights regime, and to bring the system in line with other developed systems in the US and Europe,” says Xingye Huang, associate at trademark and patent attorneys Abel & Imray. Indeed, China is on track to achieving its 2020 strategic goal laid out in 2008 of attaining a comparatively high level in terms of the creation, utilisation, protection and administration of IP rights.
200 years ago the US was a notorious thief of tech. The UK had strong export protections on skilled workers and important machinery, especially in the spinning industry.
Alexander Hamilton helped steal many trade secrets and helped many skilled US artisans migrate to the US, that was his government's policy, including paying for artisans' travels, suggesting to hand out bounties to people smuggling artisans out of the UK, and so on.
The US' strong copyright laws and international enforcement came later.
It's not out of the question that they're doing it as a pretext for protectionism. If their companies file a large number of garbage patents then their courts can throw them out if anyone tries to use them against a Chinese company but enforce them whenever they're used against a foreign company.
> Over the past decade, China has demonstrated serious resolve to enforce an effective IP rights regime, and to bring the system in line with other developed systems in the US and Europe
I think this is entirely questionable where you have rampant IP theft  (I can recall couple of major recent incidents), and the claim that 1 in 5 US companies face IP theft in China . The Chinese government wants to attract foreign businesses and number 1 concern for any western company when they want to do business in China is IP. It doesn't surprise me that the Chinese government is drumming up its stance on IP protection.
Lack of respect for IP runs deep in Chinese culture, articulated in great detail by Paul Middler in his book "What's wrong with China?". Having worked in China for a long period, there is no better summary of the Chinese business culture.
 Huawei Case: https://www.wsj.com/articles/u-s-prosecutors-probe-huawei-on...
 Micron Case: https://www.nytimes.com/2018/06/22/technology/china-micron-c...
If you are reading Paul Middler's book about China, you probably don't know about China, because clearly Paul Middler doesn't know China.
Thanks for the link, I am gonna read about it and see what's being debated.
The company policy is to not allow internet on machines connected to the company network. They say that it is very typical on China for companies to try to atract workers from the competition, and these take with them not only know-how, but internal files from the company they leave too. Hence the firewalling.
It's ridiculous because I'm speaking of consumer electronics, not the military. The team morale is super low because they are fighting against the environment, not the problem they want to solve.
Maybe they only want to crash the western subsidiary and get the prestigious brand name(?). Anyways it seems that they are getting a taste of their own medicine.
What really matters in international relations is not how countries used to behave - it's how they behave now. Every country of note has at some point in the past been a pariah of one form or another.
Thanks to the trade wars, manufacturing is spreading more quickly away from China to the surrounding countries where China still has a lot of influence, but US hasn't added tariffs (yet) ... labor is cheap and quality is just as high (or bad, depending on your view of things).
If you think the judicial system and 'no fucks' is non-existent in China, try Laos, Cambodia or Vietnam.
I think it is safe to extend argument not just for China, but the entire SE Asia. Hell, some regions in Vietnam smells almost like those PVD coating chemical gas chambers in Guangzhou.
Back in the 70s, Japan had that reputation. Then South Korea and Taiwan had it in the 80s. Now that these countries produce valuable IP, they vigorously support and defend it.
I honestly don't know. With regard to software, it's clear that patents are causing net harm to the industry - so maybe TiVo makes more money off licensing DVR patents than they did from DVRs, but that's about as close as software patents have ever come to working. But then you have cases like pharmaceuticals, where the high cost of R&D and the long lead time to getting a product to market makes patent protection absolutely essential to recoup costs. I suspect that most industries are closer to software than pharma, but suspicion isn't enough to go on.
I do know that the theoretical basis of the patent system, the exchange of public disclosure for temporary monopoly, doesn't work at all. A typical patent is written in a strange, pedantic style that obscures more about the underlying invention than it reveals. And a typical patented "invention" is usually a small aspect of a much larger product, parts of which can also be protected by trade secret and copyright as well, and those last well after the patent expires. So the rationale is utterly incoherent, but it's the law and we're stuck with it.
A patent [the law intends] is granted for an invention, specifically not an idea. There needs to be a workable embodiment, sufficiently disclosed that a skilled reader can make the invention.
Making an idea a workable invention requires expending effort, that is why we need a patent system.
The alternative is industrial secrets, which IMO will greatly inhibit progress. Not because we can't reverse engineer but because of the costs of time and resources.
There is also an issue of sufficiency of patent disclosures reducing over time, patent offices need to be hot on that.
Patents encourage monopolisation by harming smaller companies more than large conglomerates. Small companies either take their chances and risk being sued out of existence or actively avoid patent infringement, wasting resources and limiting innovation.
If anything, patents discourage knowledge sharing because showing your work opens you up to liability for violating patents you may have been unaware of. The only form of "knowledge sharing" patents seem to encourage is filing patents, which only becomes "knowledge sharing" when they expire many years later.
EDIT: The most frequently cited counter-example is historical: guilds keeping trade secrets to prevent outsiders from just copying them. But this is meant to associate all the negative associations we have with that time and its level of technology with the absence of patents without doing the actual work of establishing anything resembling a causal relationship.
These are invalid. That might not help against a troll of course.
>The only form of "knowledge sharing" patents seem to encourage is filing patents, which only becomes "knowledge sharing" when they expire many years later. //
I'd have to check for USA, but in Europe you can use a patent for research, that's the whole point really of having them. You can even make the invention for yourself, you can't sell it though without a license. When you make an improvement and the original inventor won't license then in UK they can be forced to license it.
Gadget manufactuers would also obfuscate or hide design features to make it harder for their inventions to be copied.
Also, I imagine, in the absence of patent protection, trade secret or non-compete laws would be more onerous.
This is an inevitable trade-off but it will not be like China mainly due to strong sense of distrust in Chinese society.
Agree. When it comes to patents, getting into court, and fighting back
Most of the companies won't even get to a situation they need to spend money they don't have to fight this 'endless' war
Innovation should be protected with a capped value instead of a period of time.
Have you thought about how this could mean the wealthy are almost always going to win?
Patents are helpful when you are small, and cannot win the scale war. Big companies + Rich People will always win in a world where they can copy ideas.
That's a very naive view of things.
Big companies will be happy to license your stuff if they actually got something with it (an actual developed product or component) but they won't be much compelled to license if you just wave a patent in front of them.
"Oh but then you sue", yea, it's not that simple.
But I do agree patents have gone off the wrong end these days.
It seems like that hasn't really got off the ground. Perhaps Cloudflare etc could do their prior art appeals through Ask Patents? It would help build its profile and userbase, which would help the process of taking down bad patents become self-sustaining.
I -really- could have used the winnings back then, (I made my submission ~4 years ago), but hey, it all worked out in the end. I'm an SRE living in SF now, with my own apartment in a nice neighborhood. Still no AC though.
Seem to recall Microsoft backing one of them
I think it is very interesting economically speaking. By participating into the crowdsource, people are basically selling their memories, not time actually spent on the task. (though I acknowledge it does take some time, even if it's just reading the patents).
When to we get wankipatent? (short for wiki-anti-patent of course)
Warning - in some countries this has an unsavory meaning.
The company that sued Cloudflare, Blackbird, is one such company: https://www.blackbird-tech.com/about/
oh wait does someone have a patent about "a database of prior art for patent trolls patents".......
Patent trolls really seem like a cartoonish kind of evil. I'm curious if there is any steel man argument for their existence? Do they add any value at all or are they just a pure drain?
If you define patent troll as only someone who asserts clearly invalid patents or makes unsupported and unreasonable assertions of infringement? No argument for their existence.
But many of the so called patent trolls do assert facially valid patents with reasonable infringement theories. There is an argument that they provide liquidity and value to inventors who can't really afford to sue themselves. Lets say you invent a widget that reduces the cost of producing batteries by 10%. But you don't own a battery company so you can't monetize it. You can sell it to a troll who will do it for you. Or if you were a company that revolutionized the telecom industry, but missed the smartphone boat and went bankrupt. Those patents still have value and added to the industry. Trolls can get you that value.
I'd still say that the patent laws don't really reward true innovation in most cases. But that goes for non-troll patents as well.
Parhaps a patent on some electronics means for discovery of targets for specious patent claims. Or a patent on some 'novel' business process that patent trolls could be argued to rely on. Something sufficiently broad that might be weaponised against patent trolls.
Have I just ruined the patent trolling patent by creating prior art?
In 2014 there was an executive order "focused on expanding ways for companies, experts, and the general public to help patent examiners, holders, and applicants find relevant “prior art”". (The other executive actions on that archive.gov page look interesting too.) But I can't find any info more recent than the 2014 roundtable that the USPTO held. Does anyone here know anything about this?
This, I realized, is how we got so many garbage patents on well-known, obvious software techniques - if nobody thought software was patentable at the time, they wouldn't have bothered filing a patent application. Years later, when software became patentable, the first vulture to think of filing could snatch up the patent and 20 years of exclusivity even though they didn't invent a thing.
Given how hard it is to make any lasting change to organizational culture, not to mention that we're under a different administration now, I expect that absolutely nothing came of this 2014 roundtable and nothing will until somebody really powerful gets burnt.
I'm also sad to see MIT so overrepresented in their ranks, presumably because the founder went to MIT: https://web.archive.org/web/20170511234303/http://www.blackb...
Perhaps there's an ethics course missing from the curriculum?
I see that Project Jengo started right about the time the Supreme Court put a stop to the Eastern District of Texas Court prostituting itself as a service to trolls , and that this case was judged in the Northern District of California.
Things are moving in the right direction, but we also need the USPTO to do its part properly.
1. Patents must cover only stuff that could be created/used at the time of the filing.
2. Patents are not transferable.
3. Patents that are not licensed and not used within a specified time are automatically released to the public.
That said, the obvious flaw with that point in isolation is that it would still be possible to license a non-practicing entity to sue people on your behalf and then have a revenue sharing agreement between the holder and their employer at the time where the employer reimburses the holder for all expenses related to filing and in return receives all licensing revenue -- effectively recreating the current system but with more layers of bureaucratic indirection.
The problem is patents. If you try to fix them, the market will simply adjust to work around those fixes. Much like with actual nuclear weapons, we need to get rid of them, not just write more laws about when it is okay to use them. But unlike actual nuclear weapons, we can get rid of patents without changing the laws of physics -- we can just ban new applications and let the existing patents run out.
The sourcecode is also on Sourceforge in the CVS repository...
But wait, they were giving out thousands of dollars for submitting ... Internet links? How did I miss this? I love searching for obscure things online, and could've made some easy $ with this. Hopefully something like Project Jengo is started again with another patent troll firm.
Proposed we license it for “$1 and other good and valuable consideration.” Unfortunately, the Raytheon IP counsel didn’t have a sense of humor.
The whole point of software patents is to keep you in your place, get it?
I know. I worked on this issue for a decade starting around 2000. Congress understands EXACTLY the dynamics it gives rise to.
This is interesting. When we think of "law firm" it generally refers to a company providing legal services to clients. If a company comprises nothing but lawyers pursuing litigation to enrich themselves, what is the term for that, and why should it be legal?
That right there is the legal and literary equivalent of a head on a pike.
I do wonder though... what's Blackbird's mentality like when they started hitting on big players like Cloudflare? In my limited reading of past patent-troll-related posts on HN, it's almost always about preying on small entities.
You know what's more impressive: "Matthew Prince is co-founder and CEO of CloudFlare. CloudFlare’s mission is to build a better Internet. Matthew wrote his first computer program at age seven when his mom would sneak him into university computer science courses."
Age 7 sitting in on a Uni CS course?! Holy crap
Still mega imo. Yes your mom seems awesome too.
Congrats on that victory, sweet strategy!
Continuing Ed or not, I can’t imagine her sitting in a CS course in a year. Wow.
And yes, kudos to your mom for providing you that opportunity.