> "I'm pretty excited, I've never won a single thing in my life before. And to do it in service of taking down evil patent trolls? This is one of the best days of my life, no joke. I submitted because software patents are garbage and clearly designed to extort money from productive innovators for vague and obvious claims. Also, I was homeless at the time I submitted and was spending all day at the library anyway." — Garrett, San Francisco
Thank you for your work. One less patent troll, one small step towards a better economy.
Two questions:
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 ?
As we described a bit in a previous post at the end of the litigation -- https://blog.cloudflare.com/winning-the-blackbird-battle/ -- in addition to the money we paid for the crowdsourced bounty, we also had to pay considerably to litigate the case. Even though we won the underlying litigation as quickly and convincingly as possible, we still spent more in legal fees than Blackbird might have been able to recover in damages after trial. That's why settling / licensing will always make more short-term economic sense, and keep trolls alive.
Unfortunately that kind of punitive punishment will deter genuine cases from be being filed for fear of penalties .
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
> Unfortunately that kind of punitive punishment will deter genuine cases from be being filed for fear of penalties .
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.
If it stops people suing people for having a loose paving slab on their garden path, then it's probably a good tradeoff? (albeit not one without downsides).
Any reason why is that? It doesn't make sense that you have to pay for defending yourself after the judge said you were innocent. You can just sue for nothing whoever you don't like and has less money than you.
This happens all the time in the US. I've personal made life decisions based on the the possibility I was going to piss off the wrong wealthy person who'd sue me without basis just to bankrupt me
With a patent that the court ruled as invalid in just 2 pages, and the appeals court confirmed in just three days: Shouldn't the USPTO get at least a slap on the wrist as well? It looks rather obvious that they messed up by awarding that patent in the first place.
Hi Doug, thanks for the write up and community engagement. Cloudflare has done the community a great service here.
> 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?
We don't plan to do so. I'm not immediately familiar with the case, you cite but it was our understanding from counsel that was a very unlikely outcome for us, which isn't surprising as attorneys fees are VERY difficult to recover in the US system.
It's a 2014 Supreme court case that (in theory?) made it easier to recover attorney fees from patent trolls.
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".
Thank you so much for your incredible public service. I wish I could offer more than words. Lots of organisations discuss their values, but when push comes to shove, I don't believe many would even consider, let alone commit resources to, something that has such positive externalities.
Thank you! Heroic work. Any thoughts on how we can expand this effort? My thinking is we need to get rid of Intellectual Monopoly laws in general. I think an intermediate transition to some type of “bonus” structure for patents instead of Monopolies might work, if we need a way to ease the transition, but everywhere I look IM laws cause more harm than good (unless you are in the select group that makes the inflated sums).
This was our attempt at contributing to a solution, not sure it solves the whole problem. Patents do serve a purpose, so you don't want to throw out the baby, it's as much an easily-abusable litigation system. Enough random behavior and long-term strategic behavior may make trolls think twice before setting up shop if it's not an easy thing.
I'd say there needs to be an easier/quicker way to fight the patent trolls in the court of law. The fees for the fight are exorbitant, leading the parties to instead make a settlement and the trolls "winning"
Do you worry that an unintended consequence of action like this will be for patent trolls to completely shift away from targetting companies with deep pockets for risk of blow-back such as this, and to exclusively focus on mom-and-pop-shops/startups?
Just wanted to thank you and CloudFare for your work in fighting these rentseeking patent trolls. Why some people choose to be drains on the global GDP by stifling rather than creating still baffles me. Maybe you can shed some light on your experience as a lawyer and how one might turn to "bad law."
Were you able to make Blackbird or the individuals involved in it pay your legal costs? If not, did you simply not pursue it or is it still in progress?
I've worked in China extensively and I feel strong about the following:
A) Cloudfare can defend, but a mom-and-pop small business cannot. A startup cannot.
B) China can hedge against western bureaucracy and gain unprecedented speed in innovation and new ventures - precisely because of hard pressing and blocking issues such as patent law.
C) Even if there were no patent trolls, China can still manage to steal, copy, espionage or fearlessly innovate - why? Because of three things - culture, law and international relations.
In my opinion, Patents need to end. Yep, completely get rid of patents. Not shorten it, not amend it, just simply stop taking new applications. Existing patents can be still be active until they expire (or better yet, shorten the expiration date). Ideas are cheap, execution is where companies need to compete.
This is not a level playing field for the rest of the nations. China gives no fucks about law and the west is gonna watch China lead the way in exponential progress while we are still playing in the dirt with our little patent litigations.
I wonder if people here have felt this before: Get an idea, start building a prototype, demo it to a friend, friend suggests checking google.com/patents, excitement collapses :(
Please remember that patents were invented as a way to fight trade secrets.
A patented invention should be described in sufficient detail, and the description is made public. This is how important inventions do not get hidden form sight forever, even if they don't bring any profit.
This also allows people (including governmental agencies) have an idea of what is being sold as a new invention. Would you take a new medicine whose chemical formula is a tightly guarded secret?
I think that what makes a patent worth it is the first-mover advantage. What makes a patent problematic is a long expiration time which does not depend on its being used productively.
The best idea I saw is an exponential patent fee. Say, first year it's $100, second, $400, third, $1600 (all amounts acceptable even for a lone-wolf inventor), ... tenth, $26M, ... fifteenth, $27B.
This way any useful invention can enjoy a patent coverage for some time, and afford it for some more time if it's bringing in significant profits, but sitting on a patent for a long time would be impossible even for the richest companies. Keeping a portfolio of unused patents would become pointless, too, and patent trolling, likely unprofitable.
Patents have suffered a fate similar to something like metrics that have succumbed to Goodhart's law.
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.
> A patented invention should be described in sufficient detail, and the description is made public. This is how important inventions do not get hidden form sight forever, even if they don't bring any profit.
And the problem is that the patents of today do their best to be as vague as possible (in order to maximize the "area under patent"), while either being obvious or not revealing sufficient details for one to recreate the patented invention from the patent. Not to mention that patents lengths are not in line with exponential rate of progress.
So if they already fail at the functions they were created for, how worse are they from trade secrets? Maybe what we should do is not only get rid of patents, but also reduce protections around trade secrets? People will keep trying to make money anyway, this will still lead to inventions, but that way, at least society will get to make use of those inventions.
(Drug research is an exception I'm not sure how to handle, though.)
Yeah, a patent should only be granted if the patent officer manages to build a working prototype using it as a guide. A competing patent officer should only get the title of the patent and try the same, to check for obviousness.
I partially agree. It's not feasible to expect the patent examiner to reduce a technology to practice, primarily because a lot of physical technology requires very expensive equipment and some skill to master (chemical vapor deposition chambers for thin films for instance). The ownus should be on the applicant. However, it is certainly feasible for an inventor to demonstrate a working prototype for each claim. Based on the number of rediculous awarded patents I've reviewed over the years, I imagine simply requiring demonstration will probably reduce the number of patent applications by 90%.
This requirment would have many benefits. However, a down side is that not all entities have the resources to build their inventions. If I come up with a new idea for an efficient rocket engine, I would have to license the idea to a SpaceX, etc, to get it built. But it would be difficult to approach a SpaceX and secure a license without first getting a patent.
You will need the resources to build it eventually. You can easily protect yourself from an individual entity stealing your ideas using a Non-Disclosure Agreement (NDA).
Not always, but in general, a proof of concept prototype (built in parts, at small scale, or simulated) will be an order of magnitude cheaper than a production unit.
Would a white paper for a free energy generator be accepted to a respected peer reviewed journal? Probably not, but there are tons of these truely worthless granted patents out there diluting the system. I strongly believe we need inventors to prove their claims via demonstration, one way or another.
Drug research seems more like an infrastructure thing more than a profit thing. Fund the research publicly. Academic competition is enough to ensure research is effective.
Drug manufacture however seems more like a profit thing. Open up the results for companies to make generics. Profit motive will ensure efficient delivery.
Drugs are rarely (if ever?) developed by academics, and cost a huge amount. Low estimates for bringing a new drug to market are around $500M+:
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.[1]
I agree that the pharmaceutical industry spends a lot researching drugs. And so does the government eg [1].
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.
Except that idea is simply historically untrue. Patent were started primarily as a way to modernize the guild monopolies that were common place at the time, but were unsuited given the greater levels of globalization and international trade.
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
You are correct when you are talking about the origin of British patent law. There a king could grant a patent for a wide range of monopolies, including practicing a particular craft only by guild members, etc.
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: [1]
Given that american patent law was created originally as a copy of british patent law, through the statute of Anne, that distinction is irrelevant or even misleading.
The idea of exponentially increasing patent costs has a major issue: not all businesses are alike. If I make a new model of fork and patent it, I can probably enter the market quickly. However, if my patent is for some new type of power plant, I will not be able to enter market within 20 years.
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.
But the people preparing to build a power plant, drawing up plans say, or doing tooling, would be doing "contributory infringement". The bank that funded it would be co-liable, which is great for the patent holder if they want a payday.
isnt this already an issue with the current system too? Patents all have the same minimum cost and same minimum effective legal cost, even though some opportunities are large and some are small. I understand your criticism but I think, if properly fleshed out and part of a larger plan, some sort of exponential cost feature could be useful.
One of the most sensible and workable solutions I have heard to the cluster-fuck otherwise known as the patent system.. and this is why nothing will ever become of it.
> Please remember that patents were invented as a way to fight trade secrets.
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.
>Please remember that patents were invented as a way to fight trade secrets.
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.
But we still have draconian protection for trade secrets. We still have products on the shelves of the grocery store with secret formulas. If patents are a substitute, then why not abolish the legal framework for protecting trade secrets?
Yes, those tell you what the end product is, not the actual recipe to get that. And they tell you limited information, since they tend to decompose complex compounds that are unstable when vaporized.
What does criminal law have to do with "freedom of contract"? This is why "libertarian" has become a dirty word for a lot of people who used to be sympathetic.
You can be sent to prison for 15 years for trade secret infringement. It is criminal under both federal and most states' laws.
100% agree to dismantle patents entirely. They are a hindrance rather than a benefit in today's economy. Show me one small-time developer who earned a little more money by enforcing license fees when Big Corp would otherwise have scooped their idea up, and I'll show you 20 bullshit cases out of the Eastern District of Texas that literally prevent innovating in entire categories of software. It's time to end patents and this bottom-feeding exploitation of the legal system.
They also cause problems for a lot more than software too. I'm not 100% sure that (non-software) patents should be completely abolished, but as just one example of another industry that is harmed by patents, in the medical industry, there is very little incentive to research non-patentable treatments, because getting a monopoly from a patent is so much more profitable. The other argument is that patents provide considerable incentives for certain kinds of medical research. I'm not sure what the solution is there, but I do know the current system is very flawed.
Weren’t patents initially created for the pharmaceutical industry? The issue being that research is so prohibitively expensive that if you can’t benefit from being first then you are screwed?
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.
No, patents was not created for the pharma industry. It is however the industry which would be the most disrupted by a patent abolishment. They would need a new government sponsored model to replace the current one. This to offset the costs that medical trial requirements create, which is the main cost of developing new medicines.
If we want safe meds we need to pay for the safety somehow. But that price needn't affect every other industry.
Indeed, and a government regulated system would be much fairer for everyone. In most western societies (the US may be a partial exception) we don't want to see people dying in the streets, therefore there is universal basic healthcare for everyone in every civilized country.
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.
Patents predate the pharmaceutical industry by a few centuries. Even back then, I doubt the initial motivation for government-issued monopolies was to advance the apothecary industry.
The US switched over from NTSC to ASTC broadcast television in 2009. To build an ASTC digital television or converter box, you basically have to be in the MPEG LA patent pool, or the members can bankrupt you with licensing fees if you attempt to comply with the standard.
We also have really simple prevention/treatment steps for basically all chronic disease: sleep for eight hours every night, replace sugar with vegetables, and get outside and exercise.
If everyone did that, we wouldn't need all these fancy new drugs.
Are you seriously suggesting that people with serious genetic disorders (physical or mental) should just make better lifestyle choices, and they'll get better?
- 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
If there were no patents everyone would be busy working to implement ideas. Innovation would fly and the inequality index would drop like a rock. A lot of the wealth concentrated at megacorps in the form of IP would flow out to any who worked to actually implement ideas. Information cannot be stolen, it can only be copied. The literal definition of theft is to deprive someone of their property. That just doesn't apply to anything information based. There are several claimed intents but at its root it is an excuse to use violence against others to prevent competition, basically the one thing that shouldn't be allowed in civilization.
In general you need resources to go to market. John Doe makes a new widget goes to CompanyA with his invention, CompanyA just copy it. John gets nothing, CompanyA gets the profits.
Same way it works right now - John Doe forms a company, gets it on Kickstarter, YC, whatever, gobs VC money, then sells his company to CompanyA. Everyone gets profit.
What's not to like and where are patents in this picture?
Patents in general and as originally intended are beneficial: the concept was created to incentivise publishing innovations, to promote progress and state of the art.
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.
What you're talking about is a utility patent, for an embodiment (a product that embodies an invention)instead of allowing patents for inventions.
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"
And copyright shares a lot of the same problems. When everybody carries in their pocket a device that creates perfect copies of all kinds of information, the marginal economic value of a copy is reduced to zero, and you need to create artificial scarcity to support selling copies as a business model. That's why everyone is moving to "software as a service".
> “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.
Maybe China goes through what the young US went through?
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.
> How do you reconcile your view with the fact that China is building up its domestic patent system?
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.
I've not been directly aware of the increased push for patents in China. I've audited number of small to large suppliers and have not felt that IP enforcement has any real meaning in China.
> 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 [1][2] (I can recall couple of major recent incidents), and the claim that 1 in 5 US companies face IP theft in China [3]. 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.
> 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.
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[1].
I was having dejavu one after another as I read through it and even more so when I read "Poorly made in China". It was by far the best (perhaps brutally honest) overview of the Chinese business culture, confirmed by other colleagues of mine who recommended this book to me.
Thanks for the link, I am gonna read about it and see what's being debated.
I know about a small western company acquired by a big Chinese multinational where Linux firmware devs are working on Windows boxes with no internet. Firewalled.
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.
Outside of those who are fearful of the PRC, mainly its own citizens and direct neighbors, will any nation take seriously any Chinese IP claim when they have spent nearly two decades of demonstrating complete disregard for anyone else's?
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.
Not just China though, pretty much all of SE Asia.
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.
You're absolutely right. I've audited over 100 suppliers in SE Asia in manufacturing, the kind of things you see is completely, utterly insane. I've been to Pegatron (Apple supplier) to some shitty PCB supplier where the boards are running off the conveyor belt in a huge pile. No other book captures it as well as "What's wrong with China?" by Paul Middler [1]. Dejavu after dejavu as I read through it. It is amazing.
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.
I have lived in Vietnam for going on 4 years now and have travelled extensively through Vietnam, Laos and Cambodia. Not just the tourist spots, but real back country places. I've seen it all first hand... the destruction that is going on in the region, by China's hand, is insane.
And in the past East Asian countries like South Korea, Japan, and Taiwan.
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.
There's an old quote from a legal scholar to the effect that it was a mistake to introduce patents, but now that we have them, it would be a greater mistake to get rid of them.
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.
>Ideas are cheap, execution is where companies need to compete. //
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.
How do industrial secrets, which can safely be reverse-engineered, inhibit progress more than patents, which often intentionally omit important details and can be used to actively prevent reverse-engineering by competitors?
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.
>patents, which often intentionally omit important details
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.
Just playing devil’s advocate, companies will still want to protect their investment and competitive advantage. Without patents do we start seeing even more aggressive pushes towards implementations (ie cloud) that simplify maintaining trade secret? And longer more egregious non-competes?
I was thinking of the same, if you go to any R&D center (or even a large manufacturing plant) in China, there is an unreasonable level of security. I've been held up for hours in front office security room because they won't let me go home with my briefcase since it was not registered during check-in, and I can't leave my briefcase with the security due to obvious reasons. Security guys had to escalate to corporate VP of security in HK to let me go.
This is an inevitable trade-off but it will not be like China mainly due to strong sense of distrust in Chinese society.
>Cloudfare can defend, but a mom-and-pop small business cannot. A startup cannot.
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
> Ideas are cheap, execution is where companies need to compete
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.
> Patents are helpful when you are small, and cannot win the scale war
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.
Copying means that you are always a step behind, and wealth doesn't replace the know-how necessary to recognize the good ideas. You can throw a lot of money on the fire by copying the wrong stuff.
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'm Garrett. As stated in my quote, I was already in the library all day for the air-conditioning, and thought this would be a fun way to waste some time. My submission was the "Internet based resource retrieval system (No. 8996546)" highlighted in the article. It was honestly shocking how obvious of a patent it was, it basically just described an online yellow pages. I could find one of those before 2004, easy. Internet Archive wayback machine, away!
I -really- could have used the winnings back then, (I made my submission ~4 years ago), but hey, it all worked out in the end. I'm an SRE living in SF now, with my own apartment in a nice neighborhood. Still no AC though.
Wow that’s really interesting, engaging people to find prior art with a bounty. That should be a continued thing, where people can hunt for patents and receive reward for anything used in a case.
Reading from afar, it feels like cloudflare gained a lot financially from this crowdsourcing. But I've already suffered from such patent trolls, and I actually think crowdsourcing is a very nice way to fight them.
I think it is very interesting economically speaking. By participating into the crowdsource, people are basically selling their memories, not time actually spent on the task. (though I acknowledge it does take some time, even if it's just reading the patents).
When to we get wankipatent? (short for wiki-anti-patent of course)
If I could help Cloudflare by remembering prior art, I would do it for free as the satisfaction would be enough. However, they say that they paid over $50,000 to 18 individuals, which works out to almost $3000 per person, so the crowd gained a lot financially as well.
As I understand, many tech companies hold onto many broad patents but don't actually enforce them. They do that as a mutual assured destruction tactic. If the competitor sues them for a violation, then the defendant enforces all of their parents against the plaintiff. I know of many companies in the autonomous vehicle field that do that. One of them (I forget who) has a patent they says that if a car on the neighboring land moves close to your lane, then move your car to the far side of your lane.
That only works for other companies, not for patent trolls that are usually holding companies that own patents but don't have any products that could infringe on patents.
It would be awesome if someone would create an online database not just against blackbird, but against all patent trolls, like every time a patent trollish lawsuit is brought forth, just add the company and all their patents and go to town.
oh wait does someone have a patent about "a database of prior art for patent trolls patents".......
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?
Non-practicing entities (NPEs) are like HFT. They’re not something that was deliberately created, but are an artifact of deliberate policies we created for other reasons. NPEs are the byproduct of the fact that patents are treated as transferable property rights. That general principle has value. For example, you can sell patents if a company goes bankrupt, which makes it easier to attract investment on the front end. If the patents are good (cue debate about what, if anything, counts as a “good” patent) NPEs can serve valuable functions such as reducing transaction costs. (Multiple inventors can sell to the NPE, and implementers can have a one-stop shop for licensing.)
Depending on how to define patent troll, yes or no.
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.
If a patent is being upheld for the right reasons, it's not a troll. The patent troll is the definition of a bad actor in this arena. There's arguments for and against patents, and especially so software patents - but there's not many arguments for the existence of bad actors.
This is the definition I have seen almost everywhere, but I do not like it. Non-practising entities like ARM and patent-owning universities I would never consider trolls just for being an NPE. On the other hand, even practising entities may engage in troll-like activities, asserting a patent beyond its scope to bankrupt a smaller competitor, because legal costs are not usually awarded in the US for such lawsuits (e.g. Nuance vs Zi). It is just that in a lot of cases, if not most, the troll is a non-practising entity.
Here's a foolish idea: can we patent patent trolling?
Parhaps a patent on some electronics means for discovery of targets for specious patent claims. Or a patent on some 'novel' business process that patent trolls could be argued to rely on. Something sufficiently broad that might be weaponised against patent trolls.
Have I just ruined the patent trolling patent by creating prior art?
On the topic of crowdsourcing prior art, I found something interesting from googling around a bit that I wonder if anyone here might know anything about:
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?
I was an intern at USPTO a few years ago, during my failed attempt to become a patent attorney. What I saw and experienced there was a closed-minded agency with a very narrow bureaucratic focus. The only "prior art" that normally got searched was the database of previously submitted patent applications and issued patents. There was no room for bringing in outside experience or common sense. Search the database, stamp the application "accept" or "reject", move on to the next application, get as many done in the bi-week as possible.
This, I realized, is how we got so many garbage patents on well-known, obvious software techniques - if nobody thought software was patentable at the time, they wouldn't have bothered filing a patent application. Years later, when software became patentable, the first vulture to think of filing could snatch up the patent and 20 years of exclusivity even though they didn't invent a thing.
Given how hard it is to make any lasting change to organizational culture, not to mention that we're under a different administration now, I expect that absolutely nothing came of this 2014 roundtable and nothing will until somebody really powerful gets burnt.
Ever heard of Eolas v Microsoft? Anyone can get burnt. Of course MS is a joke now, but a random troll forcing them to cripple IE plugins was a big deal at the time.
I still think one of the better ways to handle the patent issue is to charge a property tax of, say, 2 percent of its value per year. The owner gets to declare the value BUT they MUST sell it to the first person willing to pay the claimed value of the patent.
Hey cloudflare, why don't you start a venture that productizes this process for smaller companies that can't afford to do this themselves by pooling all the companies that are being targeted by a particular troll together, for any patent troll, not just blackbird.
Companies don't innovate, people do. The patent may be filed by a company but the discovery must have been made by one or more human beings. So you might as well argue that it shouldn't be possible for legal entities to hold patents if patents can't be transferred.
That said, the obvious flaw with that point in isolation is that it would still be possible to license a non-practicing entity to sue people on your behalf and then have a revenue sharing agreement between the holder and their employer at the time where the employer reimburses the holder for all expenses related to filing and in return receives all licensing revenue -- effectively recreating the current system but with more layers of bureaucratic indirection.
The problem is patents. If you try to fix them, the market will simply adjust to work around those fixes. Much like with actual nuclear weapons, we need to get rid of them, not just write more laws about when it is okay to use them. But unlike actual nuclear weapons, we can get rid of patents without changing the laws of physics -- we can just ban new applications and let the existing patents run out.
I see that Project Jengo started right about the time the Supreme Court put a stop to the Eastern District of Texas Court prostituting itself as a service to trolls [1], and that this case was judged in the Northern District of California.
Things are moving in the right direction, but we also need the USPTO to do its part properly.
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.
I'm one of the bigger winners, for the "Internet based resource retrieval system (No. 8996546)" patent they highlighted in the article. Probably one of the coolest things I've ever participated in; special thanks to Cloudfare for organizing such a clever competition for a such a worthy cause. I hope other companies are able to follow their example to leverage the community to help solve these kinds of problems. For generous rewards, of course ;-p
Different, unrelated Blackbird. Though, fun fact, I tried for several years to get Raytheon to license their trademark in the name Blackbird to Cloudflare so we could sue Blackbird the law firm for trademark infringement.
I, for one, would contribute to an ongoing "Project Jengo" type of thing, especially if it targeted the broader patent troll portfolio. I don't even think it would need a bounty system; just create something where people can submit prior art against a list of patents.
The correct entity to bring pressure to is your Congressperson. In fact, they are fully versed in this issue and approve of it just because it keeps upstarts, who have nothing of value to offer them or their extended families, in their rightful place. OTOH, it benefits incumbents like MS and Samsung and Apple and the companies in their supply chains enormously, and those companies have all sorts of ways of benefitting Congresspeople and their families.
The whole point of software patents is to keep you in your place, get it?
I know. I worked on this issue for a decade starting around 2000. Congress understands EXACTLY the dynamics it gives rise to.
> Blackbird’s defense to these allegations was that it (i) was not a law firm (despite the fact it is led exclusively by lawyers who are actively engaged in the litigation it pursues)
This is interesting. When we think of "law firm" it generally refers to a company providing legal services to clients. If a company comprises nothing but lawyers pursuing litigation to enrich themselves, what is the term for that, and why should it be legal?
> But we may be back at some point. Patent trolls remain a risk to growing companies like Cloudflare and nothing in this experience has persuaded us that settling a patent lawsuit is ever the right answer. We don’t plan to settle, and if brought into such litigation again at some point in the future, we think we have a pretty good blueprint for how to respond.
That right there is the legal and literary equivalent of a head on a pike.
It's more "fend it off, then crowd source enough ammunition to hunt it down and murder it", though. Everyone can expose trolls to sunlight, it just doesn't do all that much if you don't have the resources to fight them.
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.
They hit on small entities to build up enough of a war chest to buy enough lawyers to make the big players think that a lawsuit is going to be costly. If the terms offered to the big player are less than the big players think the lawsuit will cost, a lot of big players will just make the economic calculation and pay up.
Big players see their share of cases as well, if not more. Settling or licensing the technology will generally be cheaper in the short term than litigating the case.
It's really weird that patent trolls ended up being drawn to a court in this weird little town in Texas called Marshall. I dated a girl from there once. What a strange place it is. I've never heard a reason for why that happened. Does anyone here know?
I love it how they decided to spend the money fighting the patent trolls. I started reading the article because the title reminded me of Richard in the Silicon Valley TV series. Happy to read that in the real world the patent trolls got busted!! :)
I’m a patent attorney. Honestly this is pretty impressive—total scorched earth tactics against ALL of the entity’s assets? I don’t think I’ve ever seen that before, and I bet it makes some people think twice.
Not only their assets, but also their right to practice as lawyers... the founders were reported to bar association in two states for ethics violations...
"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.
Unfortunately, the challenges before the bar associations were apparently not successful. Their wording is careful since "disciplinary proceedings in front of bar associations are generally confidential", but they do remark that "it will take a broader change in orientation by these professional associations" before even obvious patent trolling is considered legal malpractice.
We already have barratry laws on the books. Someone just needs to enforce them. Advancing disingenuous arguments in court should be an automatic year's suspension.
What is a "disingenuous argument?" Is it like reading the phrase "the right of the people to keep and bear Arms, shall not be infringed" to mean something less than that based on a clearly set-off explanatory clause in front? (Sorry, I couldn't resist.)
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.
Court officers take an oath not to waste the court's time. Knowingly advancing baseless claims that are only meant to scare a victim into settling is a violation of that oath. This isn't hard stuff. The priesthood just doesn't want to hold its members accountable.
Patent trolling isn’t considered improper at all. I would hope that the complaints to the bar had a little more in them than “this lawyer is doing something we don’t like but that isn’t actually against the rules.”
Per the post, their complaints were based on rules prohibiting attorneys from splitting contingency fees with non-attorneys. The patent they were asserting against Cloudflare was purchased from the inventor for $1 plus “other good and valuable consideration.” As part of their defense to the ethics complaint Blackbird asserted that they do not use contingency fee arrangements for the patents it acquires, but do something "similar."
Don't read too much into my paraphrasing, as per the article they did in fact raise substantiated malpractice complaints. The troll had entered into a forbidden profit sharing arrangement with a non-lawyer, and was being purposely ambiguous if it is a law firm at all.
> Patent trolling isn’t considered improper at all.
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.
What I mean is that it isn’t against the rules. You’re welcome to think it’s a little shady (and I won’t disagree), but it’s not improper.
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.
Some people own houses that they don't even intend to live in. Then they rent out those houses to other people who actually want to live there. Improper?
Rather different things. The right to own property and do what you want with it, outside of a relatively limited set of prohibitions, is a fundamental right that forms the basis of our economy. Patents are an artificial construct created for a specific purpose with specific limitations. They are meant to encourage technological innovation by providing temporary Government protection for the inventor in exchange for a disclosure of the details of the technology. For an entity that has not invented anything and has no intention to do any research or sell any products to use them to extort rents from companies that actually do those things is a distortion of the purpose of the system.
no, this is similar to owning a plan for a house, then charging rent (without ever having built the house) to anyone who happens to live in a house that looks a bit similar to the plan.
IP isn't a tangible asset, so the analogy is unsound.
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.
This is such a great feel good story. I've been reading for a decade about the injustice of patent trolls bullying and extorting startups for money, sometimes killing them. Hearing about NewEgg fighting back gave me some hope, but this scorched earth strategy from Cloudflare read the same to me as watching an epic sports play. Well done Cloudflare, once again you have my respect and gratitude. There's nothing better than a bully getting theirs.
They poked the wrong dragon. It’s impressive that CF invested the resources in fighting them. What’s unfortunate is the number of small companies that have been killed by patent trolls.
Well when lawyers think they are the smartest ones in the room but are in reality dumb enough to present starving engineers and entrepreneurs with a "life or death" dire problem to solve, what did you expect to happen?
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?
That's generally not what they do. They deliberately structure it not as a "life or death" problem, but rather a "nuisance or larger nuisance" problem. The expected response (which generally happens) is that people choose "nuisance".
Tactically though, doesn't this mostly just benefit CloudFlare?
They have very effectively demolished one patent troll. This will ensure that only people who are very sure of the validity of their patents will use them against CloudFlare. Does it make any other targets more scary? Is there that a patent troll wouldn't do now that they would have done previously, apart from attack CloudFlare specifically?
One less patent troll is definitely a good thing, and I'm always happy to see someone fight back. I think we should be careful not to assign too much scope to the victory though.
It certainly benefits Cloudflare by making any patent troll think twice before suing them, but to a lesser extent, it also benefits the entire tech industry:
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.
Many of the patents in their portfolio now have publicly-accessible crowdsourced prior art pools that defendants can use to invalidate more patents. They can still buy new patents, but because of what has already happened, they are down on staff. They have not been vanquished, but they have been weakened.
I'm aware but it isn't hard to interpret this as "they lost nothing more than the use of some number of $1 patents and the time it takes them to go find more $1 patents".
That fact that the company dropped from 12 people to 3 is a big tell. No new cash is coming in. They can’t get ppl to work for free and hope to get a nice big cash infusion soon (in the form of patent royalties).
Yeah, this wants to read like "oh hey! Look at all the neat work we did to stop patent trolls!"
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.
Hah, no, they certainly didn't. That's a bad comparison for me to make.
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".
It's probably not something a smaller company might be able to afford, and that's the entire problem with the patent troll phenomenon: it doesn't matter how valid their patents are, they're counting on it being too expensive for their victims to fight it. If settling is cheaper than fighting and winning, the troll can continue to extort others. We need companies with the means to do so to take the effort to actually defeat and invalidate the patents if we want to stop the trolls. It's all part of US justice being for sale rather than equally distributed.
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.
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."
It was a continuing education class at the University of Utah, so maybe not as impressive, but, I think the more telling point is how cool my mom was/is to give me opportunities like that.
> It was a continuing education class at the University of Utah, so maybe not as impressive, but, I think the more telling point is how cool my mom was/is to give me opportunities like that.
Still mega imo. Yes your mom seems awesome too.
Congrats on that victory, sweet strategy!
Looks like they're getting closer to using hCaptcha rather than ReCaptcha [1] for the Privacy Pass service, which could be a trial of hCaptcha before rolling it out on all of the verification pages.
I work at hCaptcha so I can't speak to any particular arrangements. We provide data labeling services and use the captcha as a means to lower costs for annotated datasets. To that end, we intend to open source most of our captcha stack and would be an obvious choice for any privacy-concerned company rolling their own captcha.
This guy is a legend.