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Cloudflare’s fight with a “patent troll” could alter the game

723 points by Stanleyc23 9y ago

ovi256 9y ago
I've noticed a Techcrunch comment that makes this fight about software patents and states that forbiding them would be a good solution. I think that's a very wrong view to take. The software patent fight is worth fighting, but do not conflate the two issues. Abuse by patent trolls or non-practicing entities can happen even without software patents. The law patch that shuts down patent trolls will have no effect on software patents, and vice-versa.
- sqeaky 9y ago
  I don't think many do conflate the two, I think most people just don't see value in software patents. Software is great because it has no cost to copy, so when someone creates a new algorithm it can be put in use everywhere applicable rapidly. This pace of advancement is so awesomely powerful that many do not appreciate how much positive change it can bring or how different the world was just a few years ago. An advancement in algorithms becomes and advancement for humanity pretty quickly. Software patents are the exact opposite of this. I will take it one step further and claim that patents on the whole are bad. I don't think they do what most Americans think they do in terms of incentivizing inventors or protecting small business. EDIT - Also software is already covered by copyright, why does this IP deserve two kinds of protection and most other IP gets 1 or 0 kinds of protection.
  - frenchie4111 9y ago
    I agree. Even "hardware" patents are too hard to defend to really be worth it most of the time (ex: fidget cube and other chinese kickstarter clones). You can't rely on patents to ensure defensibility to your business model, so they really just end up being money-sinks.
    - tedmiston 9y ago
      Not sure about how the Chinese patent system works but isn't it the case that these companies having U.S. patents doesn't really matter in China?
      - giggles_giggles 9y ago
        It matters if they want to sell to consumers in the US
    - pnw_hazor 9y ago
      A US Patent has jurisdiction in the US. You can bar foreign companies from legally importing your patented inventions. US customs will seize such goods at the port or elsewhere if they are aware of them.
      - sqeaky 9y ago
        That isn't a real solution. Searches are imperfect and this forfeits the entire foreign market. I think Musk has the right idea on novel inventions, the only way to keep them secret is to actually keep them secret. An honest patent forces a description good enough to duplicate. Better to keep your secret sauce secret.
      - sqeaky 9y ago
        That isn't a real solution. Searches are imperfect and this forfeits the entire foreign market. I think Musk has the right idea on novel inventions, the only way to keep them secret is to actually keep them secret. An honest patent forces a description good enough to duplicate. Better to keep your secret sauce secret.
  - felipeko 9y ago
    Just a nitpick, by definition what does not have protection is not IP.
    - sqeaky 9y ago
      Trade secrets. As long as they remain secret they have protection, but the very act of outing them makes them not secret. I am aware of very few successful suits defending trade secrets.
      - pnw_hazor 9y ago
        Plenty of trade secrets are defended successfully. Trade secrets cases are lost when the owner is claiming something is a trade secret when it doesn't meet the legal definition of a trade secret. Trade secrets are useful for long-lived secrets like the formula for Coca-cola. But if someone independently develops the same thing you are trying to keep secret too bad. Also, if the secret accidentally gets out (w/o theft) the trade secret enters the public domain.
    - pbhjpbhj 9y ago
      Hmm. Sounds like a choice of definition but to my mind some IP that lapses in to public ownership (and so is not protected) doesn't cease to be IP, some IPR cease to exist but I'd still consider that work/invention/mark/design/database to be intellectual property just it's now owned by the public. It probably doesn't matter at all.
  - int_19h 9y ago
    It's not clear to me why such a hard distinction is drawn between software and hardware patents. The usual argument for this separation is that "software patents are just math", but then aren't hardware patents are just physics (which, ultimately, is also just math)? It feels like there's no clear line here, and whatever benefits, if any, are to be derived from patents, they apply equally to either side of it. Basically, either it's a net benefit to society, and then both kinds are valid; or it's a net drain on society, and then we should just get rid of them altogether. Or maybe set the bar for what is patentable much higher wrt to novelty and value (but, again whether it's hardware or software feels irrelevant).
    - sqeaky 9y ago
      I think I covered one major distinction well. Copy software has 0 cost, copying matter has some. This is just a re-wording and perspective change on "software patents are just math" angle. Some people feel that since there is no copying cost, software favors the little guy more than with physical goods, so normal patent protection doesn't provide an benefit. These people claim that a big big evil corporation could start making a million of their widget per month and out compete them, but with software this cannot happen per their arguments. I think these people acknowledge that both physical and software patents get abused and are imperfect but feel that physical patents provide enough gain to offset their downsides. I disagree with those people completely. I am unaware of ANY actual evidence that patents help.
      - yxhuvud 9y ago
        They are currently necessary for the payment structure in the medical industry. I'm not saying they couldn't be replaced for that somehow, but simply removing patents without having something in place would be very disruptive there.
        valuearb 9y ago
        they are already far more disruptive everywhere else
      - 9y ago
  - pnw_hazor 9y ago
    copyright protects what you do. patents protect how you do it. You copyright your source code. You patent your engineering innovations. The ease of duplicating software based inventions is an argument why patents are important for such inventions. Many tech startup companies that would have been steam rolled by IBM, and friends, have been protected by their patent portfolios.
- kuschku 9y ago
  Software patents should have the same requirements as real patents: you have to provide the full knowledge required to create the concept that is patented in them. You want to patent sticky scrolling? Then put the entire source code required for it into the patent. You want to patent your AI tech? Then put the entire code into the patent. Additionally, we should make sure that trade secrets are not protected in any way, and decompiling code to find out what it does, and replicate it, is legal, as long as it doesn’t violate patents. These measures would provide reasonable measures for companies wanting to protect their secret sauce, but also ensure that this technology is all public and available for research, and that after a few years it becomes available to competitors. Otherwise we’ll end up with Google, Amazon, etc piling up knowledge and patents, without ever giving anything back to society. And if you now try to argue with Google being "good", please take a look at ReCaptcha, where they take captcha associations given by users, but never publish the resulting recognition data (which then could be used by open source projects or researchers), or look at Android, where Google has now closed everything they could.
  - CalChris 9y ago
    > Then put the entire source code required for it into the patent Some do. But patents already have an enablement requirement. This means that they must teach in sufficient detail for a person skilled in the art to carry out the claimed invention. That's what the whole Detailed description of the invention section is. Skip the claims and read the description. You might want the code; me, I want the design doc. That section should be clear and if it isn't, chances are it isn't enabling. If you don't enable, you'll probably get an office action (rejection) and if you don't (lazy examiner), you'll definitely lose when the patent gets challenged.
    - woah 9y ago
      That's a nice thought, but most software patents are written to be as broadly applicable as possible, not to be a good guide to implementation.
      - CalChris 9y ago
- unityByFreedom 9y ago
  Software is already protected by copyright. It was never meant to be patented. In fact, I believe you're not even supposed to use the word algorithm in your patents. You have to say something else, like system. Software patents are pointless and the only reason we still have them is it takes Congress forever to catch up with innovation. Patent trolls know this and are capitalizing on the period where they can shake down others while they still can.
- realusername 9y ago
  Copyright is enough, software patents do not exist in Europe and it works as well as in the US. I never saw a single patient which I would define myself as justified, most patents are something I could come up myself with in less than an hour of reflexion.
ivanbakel 9y ago
I don't see anything game-changing about their approach. Fighting instead of settling should definitely be praised, but the only differences between this legal challenge and any of the previous ones are the result of recent changes in the law or the judiciary, which are beyond Cloudflare's control. Nothing suggests that patent-trolling itself as a "game" is going to shift or go away after this, and until that is made to happen, it's going to be as lucrative as ever.
- ChuckMcM 9y ago
  I believe they were implying that by going after the firm through legislative attacks, ethics evaluations, and also working to invalidate patents that they were not sued for violating, as opposed to just showing up in court and defending the suit as filed, constitutes "game changing". I think it would be more accurate to say that they are fighting back more creatively than you might think they could at first glance.
- wglb 9y ago
  Then perhaps you missed one of the novel ideas Cloudflare is also filing a complaint with the ethics committee. And their talking to reporters.
  - ivanbakel 9y ago
    That's a one-sentence action that's brushed over in the article. I see nothing suggesting it's novel or effective, and I don't have enough knowledge of patent suits to decide that.
    - wglb 9y ago
      There are at least two other tactics that are novel. The article as a whole indicates that this novel approach is effective.
      - pitaa 9y ago
        > There are at least two other tactics that are novel Good point. Cloudflare should patent them!
FussyZeus 9y ago
I've never heard a good argument against this so I'll say it here: Require that the plaintiff in this cases show demonstrable, actual, and quantifiable loss by the activity of the defendant. It seems like such a no-brainer that a business suing for damage to it's business prospects after someone stole their idea would have to actually show how it was damaged. Even allowing very flimsy evidence would do a lot to dissuade most trolls, because as every article points out, they don't make anything. And if they don't make or sell a product, then patent or not, they haven't lost anything or been damaged in any way.
- pedrocr 9y ago
  Patents are not about damages. A patent is a limited-time monopoly to an idea that you can then extract value from. Inventing something, patenting it, and then licensing it out is exactly the business model patents are supposed to enable. Companies that don't make anything are perfectly valid under this model. The real solution is to either make sure prior art and non-obviousness requirements are properly enforced or just dismantle the whole thing as unworkable.
  - dboreham 9y ago
    >The real solution is to either make sure prior art and non-obviousness requirements are properly enforced or just dismantle the whole thing as unworkable. Obviousness is the key issue for me. I suspect most people, even those who work in the technology fields, are not aware that it is considered essentially impossible to prove obviousness (source: I have worked as a consultant on several patent litigation cases). So you have the ridiculous situation that almost everyone in the relevant field believes that almost all patents granted are obvious, but almost no litigation succeeds in finding that same conclusion.
    - FussyZeus 9y ago
      Perhaps we need to establish some sort of obvious-evidence protocol? Some kind of common sense argument that can be presented in the court of law and weighed against other evidence? Example: Someone steals an apple to feed their hungry child. Yes, it's a crime, but sending the parent to prison isn't a solution; the child is still hungry, and now both of them will to varying extents have to be cared for by the state, all over a 59 cent Apple.
siliconc0w 9y ago
I'm not a fan of the argument that if Blackbird weren't a NPE it'd be okay because Cloudflare could then aim it's 150 strong patent portfolio cannon back at them. It's basically saying incumbents like Cloudflare don't really want to fix the system, they want to keep the untenable 'cold war' status quo which protects them but burdens new entrants.
- tracker1 9y ago
  Frankly, if it weren't for the stupidity of the patent system, I don't know that Cloudflare would even have the patents. Has Cloudflare ever initiated patent litigation against anyone? The fact is that most patents for things that are "invented" but entirely virtually don't really deserve patent protection. Rarely is there significant research, expense or tooling to implement. Patents on software, processes and most extension patents are ridiculous in premise. That's what trade secrets are for.
  - jgrahamc 9y ago
    Has Cloudflare ever initiated patent litigation against anyone? No, we have not.
    - prutschman 9y ago
      Have you ever threatened to, or alluded to your ability to do so, to obtain commercial negotiating leverage in a context other than defending the company from the threat of a patent suit?
      - jgrahamc 9y ago
        Not to my knowledge.
      - mobilefriendly 9y ago
        Who cares? Cloudflare are a practicing entity, presumably with legitimate patents. They aren't necessarily at war with software patents as a concept, just the obvious abuse.
notyourday 9y ago
It is all about finding a correct pressure point. Long time ago certain Philadelphia area law firms decided to represent vegan protesters that created a major mess in a couple of high end restaurants. A certain flamboyant owner of one the restaurants targeted decided to have a good time applying his version of asymmetric warfare. The next partners from those law firm showed up to wine and dine their clients in the establishment, the establishment(s) politely refused the service to the utter horror of the lawyers. Needless to say, the foie gras won... [Edit: spelling]
- tareqak 9y ago
  This account seems more like poor planning on part of the lawyers. I would assume representing a client would imply a sort of temporary boycott on the part of the lawyers towards the client's legal adversary.
  - learc83 9y ago
    In a large firm, a lawyer isn't going to go through the active cases for every partner in the firm when choosing where to take clients for dinner.
    - PhasmaFelis 9y ago
      It seems a bit naive, then, to assume that the people you're litigating against will civilly keep their anger in Lawyer-Land and never hold a grudge in real life.
      - Bartweiss 9y ago
        There seems to be a lot of that at play in white-shoe firms. Perhaps less so now than when those positions were guaranteed for life, but some of the highest-powered lawyers I've known didn't have much intuitive sense that they were actually affecting people.
        notyourday 9y ago
shmerl 9y ago
Someone should figure out a way how to put these extortionists in prison for protection racket.
- dsfyu404ed 9y ago
  By prison you mean jobs in state government, right? Welcome to Massachusetts.
- draw_down 9y ago
  They're way too rich for that to ever actually happen. I agree, though.
subhrm 9y ago
Long live patents !
- sctb 9y ago
  Please comment civilly and substantively on Hacker News or not at all. https://news.ycombinator.com/newswelcome.html https://news.ycombinator.com/newswelcome.html https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html
dsfyu404ed 9y ago
Picture in your mind the following two scenarios: 1) Underwear models wrestling in an inflatable pool of lube 2) A biker gang and some dudes from ISIS getting in a brawl at a Superfund site. The first represents a normal b2b lawsuits. The second represents cloudflare and a patent troll fighting it out in Massachusetts.
- bllguo 9y ago
  not sure what kind of distinctions I'm supposed to be making between the two scenarios?
kelukelugames 9y ago
I'm in tech but not in the valley. How accurate is HBO's representation of patent trolls?
- snug 9y ago
  It's a documentry, not just the patent troll part, but the whole thing.
mabbo 9y ago
> “[Is Blackbird] doing anything thing that is illegal or unethical?” continues Cheng. “For the most part, it’s unethical. But it’s probably not illegal.” If it's not illegal, more work needs to be done to make it illegal. Inventors always have avenues, moreso today than ever before.
- adekok 9y ago
  While I agree it should likely be illegal, the solution to bad laws isn't more laws. A better solution would be to * do better examination of patents so that BS ones don't get issued * allow third-parties to invalidate patents by showing prior art to the patent office for a nominal fee * punish patent applicants who know about, or should have known about prior art * if a patent is invalidated, force them to return all of the money they were paid for licenses and/or fees See the lawsuits around the "Happy Birthday" song for similar problems: http://www.latimes.com/local/lanow/la-me-ln-happy-birthday-lawsuit-settlement-public-domain-20160208-story.html http://www.latimes.com/local/lanow/la-me-ln-happy-birthday-l... IIRC, the settlement came about because the plaintiffs were able to prove that the song had been published and put in the public domain. They had found a copy of a songbook which was the definitive proof. How did they find the songbook? They were given a scanned copy in discovery... with most things clear, and the date suspiciously blurred. After a few months of looking, they found a print copy which confirmed their suspicions. i.e. it looks like Warner Brothers deliberately fudged the evidence. If the plaintiffs hadn't noticed, or hadn't been able to find a print copy, people would still be paying license fees. When there is no punishment for lawyers who break the law, I think that "ignorance of the law" is an excuse. There is just no way that ignorance isn't a defence for me, while at the same time the lawyers use the law to attack me, and aren't punished for their violations.
  - criddell 9y ago
    > allow third-parties to invalidate patents by showing prior art to the patent office for a nominal fee I think there should be a punitive part to this as well. If you apply for a patent that is later invalidated, then those that licensed the patent should be made repaid. And yes there should be a fee for trying to invalidate a patent, but there should also be a reward if they are successful.
danschumann 9y ago
Can I create 5 more HN accounts just to +1 this some more?
oskarth 9y ago
> So-called non-practicing entities — or holders of a patent for a process or product that they don’t plan to develop — often use them to sue companies that would sooner settle rather than pay what can add up to $1 million by the time a case reaches a courtroom. Why on earth aren't non-practicing entity patent lawsuits outlawed? Seems like a no-brainer, and I can't imagine these firms being big enough to have any seriously lobbying power.
- dangrossman 9y ago
  > Why on earth aren't non-practicing entity patent lawsuits outlawed? The NPE category includes universities and researchers. Many inventions can't be brought to market without significant capital, and not all inventors are interested in commercializing their inventions themselves. Just because you're not personally going to build a billion dollar chip fabrication facility to implement the new silicon etching process your research group patented shouldn't prevent you from licensing it to Intel and suing someone else that uses your invention without a license, IMO.
  - oskarth 9y ago
    > The NPE category includes universities and researchers. Good point. Aren't they more likely to develop patents rather than buy them, though? Or are there more edge cases missing?
    - deleted 9y ago
      [deleted]
    - _rpd 9y ago
      The patents have no value if the ultimate owners are unable to enforce them. Once the patent exists, it is a tradable asset like copyright.
      - phkahler 9y ago
        I'm pretty sure I don't like the idea that patents or copyrights can be transferred. There is the issue in both cases of cooperative invention or writing thought, and I'm not sure how to deal with that.
jgrahamc 9y ago
More detail on what we are doing from three blog posts: Standing Up to a Dangerous New Breed of Patent Troll https://blog.cloudflare.com/standing-up-to-a-dangerous-new-breed-of-patent-troll/ https://blog.cloudflare.com/standing-up-to-a-dangerous-new-b... Project Jengo https://blog.cloudflare.com/project-jengo/ https://blog.cloudflare.com/project-jengo/ Patent Troll Battle Update: Doubling Down on Project Jengo https://blog.cloudflare.com/patent-troll-battle-update-doubling-down-on-project-jengo/ https://blog.cloudflare.com/patent-troll-battle-update-doubl...
- saagarjha 9y ago
  Umm…I think you mean Jango Fett, not "Jengo" Fett, in the caption for the first image in the second article.
  - acobster 9y ago
    The idea of using the name Jango is probably patented.
    - saagarjha 9y ago
      Possibly, but that doesn't mean they can't spell it correctly in an image caption. Indiana Jones is right below it, and it's correct.
      - chrisbennet 9y ago
        I think that was a joke.
- 0x1BADBABE 9y ago
  additionally: The Patent scam intro by Austin Meyer https://www.youtube.com/watch?v=sG9UMMq2dz4 https://www.youtube.com/watch?v=sG9UMMq2dz4
- eru 9y ago
  > [...] Blackbird combines both a law firm and intellectual property rights holder into a single entity. In doing so, they remove legal fees from their cost structure and can bring lawsuits of potentially dubious merit without having to bear any meaningful cost. Don't the lawyers have opportunity costs?
redm 9y ago
It would be great if the "game" was really altered but I've heard that statement and hope many times over the last 10 years. While there has been some progress, patent trolling continues. Here's hoping...
SaturateDK 9y ago
This is great, I guess I'm going "Prior art searching" right away.
tracker1 9y ago
I think that this is absolutely brilliant. I've been against the patent of generalistic ideas, and basic processes for a very long time. Anything in software should not really be patentable, unless there is a concrete implementation of an invention, it's not an invention, it's a set of instructions. Let software work under trade secrets, but not patents. Anyone can implement something they think through. It's usually a clear example of a need. That said, I think the types of patent trolling law firms such as this deserve every bit of backlash against them that they get.
- mjevans 9y ago
  Software is already covered by /copyright/ law. It does not need patents.
  - MatthewWilkes 9y ago
    Copyright covers implementations, not ideas. I have no moral objection to truly novel inventions in computer science being protected by patents. An innovative search algorithm, a compression scheme, etc. Its shit when MP3s and GIFs were encumbered, but they were genuine inventions whose sharing publicly genuinely advanced the public good. The kind the patent trolls use are not innovative in the same way. We need a stricter definition of obvious to one versed in the art, not a ban throughout the field.
    - deleted 9y ago
      [deleted]
    - Hermel 9y ago
      I'm pretty sure that if you rewrote Harry Potter from scratch with new names and wording (redoing the implementation) and published that, you would still get in trouble. So copyright is somewhat broader than you think.
      - indolering 9y ago
        Nope, it's not a violation of copyright.
JumpCrisscross 9y ago
I've used Latham & Watkins. Just made a call to let a partner there know what I think about his firm's alumna and how it colors my opinion of him and his firm. Encourage everyone to check with your firm's General Counsel about this. If you use Latham, or Kirkland or Weil, encourage your GC to reach out and make your views heard. It's despicable that these lawyers are harassing their firms' former and potential clients.
- cortesoft 9y ago
  What exactly are they supposed to do about that, though? They left the firm?
  - Bartweiss 9y ago
    Well, law firms commonly do some amount of pro bono work as a public service and reputation builder. I'd be interested to see a firm or two donate legal support to smaller companies fighting trolls - it'd be a show of good faith and might immediately knock out low-powered trolls. Newegg has showed what happens when these cases actually get fought, and that's something a firm could offer to build popularity and support.
    - bdowling 9y ago
      Helping a for-profit company avoid paying licensing fees hardly qualifies as pro bono work.
      - Bartweiss 9y ago
        How about if they just did the legal work to file for USPTO reexamination to invalidate the patents?
  - JumpCrisscross 9y ago
    It's less about them doing something ex post facto and more that this reflects on the type of people Latham hires and retains. If a bunch of people leaving an investment bank run out and commit fraud, the bank doesn't (necessarily) look bad for failing to stop it. It looks bad by association. We assume, rightly or wrongly, likeness in peoples' voluntary associations.
draw_down 9y ago
Unfortunately, I think this is written in a way that makes it hard to understand what exactly Cloudflare is doing against the troll. They're crowdsourcing prior art and petitioning the USPTO?
unityByFreedom 9y ago
> Blackbird is a new, especially dangerous breed of patent troll... Blackbird combines both a law firm and intellectual property rights holder into a single entity. In doing so, they remove legal fees from their cost structure and can bring lawsuits of potentially dubious merit without having to bear any meaningful cost That's not new. It's exactly what Intellectual Ventures was (or is?) doing.
fhrow4484 9y ago
What is the state of "anti-patent trolls" laws in different state? I know for instance Washington state has a law like this effective since July 2015 [1][2]. What is it like in other states, specifically California? [1] http://www.atg.wa.gov/news/news-releases/attorney-general-s-patent-troll-legislation-passed-legislature http://www.atg.wa.gov/news/news-releases/attorney-general-s-... [2] http://app.leg.wa.gov/RCW/default.aspx?cite=19.350&full=true http://app.leg.wa.gov/RCW/default.aspx?cite=19.350&full=true
- pnw_hazor 9y ago
  The bad faith element is almost impossible to prove. It certainly isn't met in the Cloudflare case. Certainly, experienced patent litigators are very unlikely to file a case that would be considered in bad faith.
avodonosov 9y ago
I've read the patent. But what part of CloudFlare services it claims to cover? Also, the patent applies the same way to almost any proxy server (ICAP and similar https://en.wikipedia.org/wiki/Internet_Content_Adaptation_Protocol https://en.wikipedia.org/wiki/Internet_Content_Adaptation_Pr...)
- avodonosov 9y ago
  Can the Decorator design pattern be considered a prior art?
arikrak 9y ago
Business usually settle rather than fight patent trolls, but I wonder if fighting is worth it if it can deter others from suing them in the future? I guess it depends somewhat on the outcome of the case..
avodonosov 9y ago
It was late summer night when I noticed that article on HN. I immediately noticed it's organized like a novel - this popular lame style which often annoys me lately: Matthew Prince knew what was coming. The CEO of Cloudflare, an internet security company and content delivery network in San Francisco, was behind his desk when the emails began to trickle in ... Was he really behind his desk? Hesitated a little before posting - am I trying to self-assert by deriding others? But this "novel" article style is some new fashion / cliche which might be interesting to discuss. Let's see what others think.
- bubblethink 9y ago
  The recent WaPo article about Russian interference in the US election where stuff arrived in envelopes with top secret written on them, and people huddling around it, was also off putting.
- Zyst 9y ago
  I like it. I really enjoy the overly dramatic and/or expositional style is something I greatly enjoy in general.
- xattt 9y ago
  It's emulating the style of writing that Wired pioneered in tech. When Joe Blow tries their hand at it, it's overdone and nuances that makes it great are in all the wrong places.
- nstart 9y ago
  It's a matter of personal taste. The only cautionary advice to writers who employ this style would be to tell them that not all exaggerations are equal. Sitting behind the desk when the email came in is a harmless exaggeration. It doesn't matter if he was really in bed or at dinner. The dramatic embellishment does little or nothing to change the facts or perceptions in a meaningful way. If it's ok, we can point to NYT's article on Trump and his aides from some time ago. Aides stumbling in the darkness unable to find light switches type line. Something like that is damaging and deserves proof before writing. Doesn't matter which way you lean, that's dangerous waters since that's been written with an intent to alter perceptions in a meaningful way. To cast a group of people as confused and befuddled. If this article (the TC cloudflare one) was to write about the patent trolls in a dramatic style that vilified them, that too would be wrong. Something like "In the photo, Freeman can be seen standing on a bridge with a wry smile as if imagining the future in which the lawyers control the game." Would be very dangerous and should not be encouraged. Thankfully this article seems to follow a simple expositional style (somewhat third person narrative of cloudflare's perspective) with a little droplet of drama that just enhances the story rather than manipulating perceptions or reality.
avodonosov 9y ago
Can the Decorator design pattern be considered a prior art?
mgleason_3 9y ago
We need to get rid of software patents. Patents were created to encourage innovation. Software patents simply rewarding the first person who patents what is almost always an obvious next step. That's not innovation.
- pnw_hazor 9y ago
  Baloney. Innovation is also driven by people trying to work around patents or otherwise discover alternative ways to solve problems. I didn't notice the Amazon One-Click patent slowing innovation down while it was still valid.
- Scea91 9y ago
  Do you feel that there is a difference in innovation between software and other fields? The obvious next steps you are talking about are usually only obvious in hindsight.
  - TeMPOraL 9y ago
    The difference that comes to my mind is costs. I suspect software "inventions" are usually very cheap to make (a person with a laptop is enough), compared to other industries.
y0ssar1an 9y ago
Go Cloudflare Go!
bluejekyll 9y ago
Something needs to give on this stuff. It's probably going to be hard to get a significant change done, such as getting rid of software patents (following from no patents on Math). I've wondered if one way to chip away at them, would be to make Patents non-transferable. This would preserve the intent, to protect the inventors R&D costs, but not allow the patents to be exploited by trolls. This would have the effect of devaluing patents themselves, but it's not clear that patents were ever intended to carry direct value rather they exist to grant temporary monopolies for the inventor to earn back the investment.
anonjuly12 9y ago
> It’s for this reason that Prince sees Cloudflare’s primary mission as figuring out how to increase Blackbird’s costs. Explains Prince, “We thought, if it’s asymmetric,” because it’s so much cheaper for Blackbird to sue than for a company to defend itself, “how can we make it more symmetric? And every minute that they spend having to defend themselves somewhere else is a minute they aren’t suing us or someone else.” They should take it a step further and apply the Thiel strategy of finding people with grievances against the founders of the patent troll and support individual lawsuits against them.
tragomaskhalos 9y ago
This reminds me of an altercation in the street that my neighbour reported overhearing some years ago: Aggressive Woman: You need to watch your step, my husband is a criminal lawyer Woman she was trying to intimidate: (deadpans) Aren't they all ?
corobo 9y ago
I'm hoping their fight actually leads to a defeat rather than a submission. I have faith that Cloudflare will see this through but I also had faith that Carolla would too. https://www.eff.org/deeplinks/2014/08/good-bad-and-ugly-adam-carollas-settlement-podcasting-troll https://www.eff.org/deeplinks/2014/08/good-bad-and-ugly-adam...
bluesign 9y ago
Tbh I dont think there is a practical solution for patent trolls. Patents are basically assets, and they are transferable. Making then non-transferable is not a solution at all. Basically law firms can represent patent owners. System needs different validity for patents, which should be set after an evaluation, and can be challenged at the courts. Putting all patents in the same basket is plain stupid.
drtillberg 9y ago
This is a dysfunction in the patent and legal processes that cannot be fixed by even more dysfunctional tactics deployed against the NPE. The rules against champterty (buying a cause of action) have been relaxed considerably to the extent in many jurisdictions of being a dead letter, and the litigation financing industry seems to have a better sound bite. At least half of the problem is the "American Rule" of rarely shifting legal fees, which if you dig a bit you will find is of recent vintage. Back in time, for example in Massachusetts, there actually is a law for shifting legal fees as costs as a matter of course; the catch is that the fee is very low (even at the time it was enacted) of about $2.50 per case, which partly reflects inflation and partly antagonism toward legal fees. I wonder whether a compromise solution would be to require a deposit for costs of a percentage of the demand for recovery like 2.5% of $34mm, which post-suit you could figure how to divvy up. That would make the demand more meaningful, and provide a tangible incentive to the plaintiff to think a little harder about pricing low-probability lottery-ticket-type litigation.

723 points by Stanleyc23 9y ago

I've noticed a Techcrunch comment that makes this fight about software patents and states that forbiding them would be a good solution. I think that's a very wrong view to take. The software patent fight is worth fighting, but do not conflate the two issues. Abuse by patent trolls or non-practicing entities can happen even without software patents. The law patch that shuts down patent trolls will have no effect on software patents, and vice-versa.

sqeaky 9y ago
I don't think many do conflate the two, I think most people just don't see value in software patents. Software is great because it has no cost to copy, so when someone creates a new algorithm it can be put in use everywhere applicable rapidly. This pace of advancement is so awesomely powerful that many do not appreciate how much positive change it can bring or how different the world was just a few years ago. An advancement in algorithms becomes and advancement for humanity pretty quickly. Software patents are the exact opposite of this. I will take it one step further and claim that patents on the whole are bad. I don't think they do what most Americans think they do in terms of incentivizing inventors or protecting small business. EDIT - Also software is already covered by copyright, why does this IP deserve two kinds of protection and most other IP gets 1 or 0 kinds of protection.
- frenchie4111 9y ago
  I agree. Even "hardware" patents are too hard to defend to really be worth it most of the time (ex: fidget cube and other chinese kickstarter clones). You can't rely on patents to ensure defensibility to your business model, so they really just end up being money-sinks.
  - tedmiston 9y ago
    Not sure about how the Chinese patent system works but isn't it the case that these companies having U.S. patents doesn't really matter in China?
    - giggles_giggles 9y ago
      It matters if they want to sell to consumers in the US
  - pnw_hazor 9y ago
    A US Patent has jurisdiction in the US. You can bar foreign companies from legally importing your patented inventions. US customs will seize such goods at the port or elsewhere if they are aware of them.
    - sqeaky 9y ago
      That isn't a real solution. Searches are imperfect and this forfeits the entire foreign market. I think Musk has the right idea on novel inventions, the only way to keep them secret is to actually keep them secret. An honest patent forces a description good enough to duplicate. Better to keep your secret sauce secret.
    - sqeaky 9y ago
      That isn't a real solution. Searches are imperfect and this forfeits the entire foreign market. I think Musk has the right idea on novel inventions, the only way to keep them secret is to actually keep them secret. An honest patent forces a description good enough to duplicate. Better to keep your secret sauce secret.
- felipeko 9y ago
  Just a nitpick, by definition what does not have protection is not IP.
  - sqeaky 9y ago
    Trade secrets. As long as they remain secret they have protection, but the very act of outing them makes them not secret. I am aware of very few successful suits defending trade secrets.
    - pnw_hazor 9y ago
      Plenty of trade secrets are defended successfully. Trade secrets cases are lost when the owner is claiming something is a trade secret when it doesn't meet the legal definition of a trade secret. Trade secrets are useful for long-lived secrets like the formula for Coca-cola. But if someone independently develops the same thing you are trying to keep secret too bad. Also, if the secret accidentally gets out (w/o theft) the trade secret enters the public domain.
  - pbhjpbhj 9y ago
    Hmm. Sounds like a choice of definition but to my mind some IP that lapses in to public ownership (and so is not protected) doesn't cease to be IP, some IPR cease to exist but I'd still consider that work/invention/mark/design/database to be intellectual property just it's now owned by the public. It probably doesn't matter at all.
- int_19h 9y ago
  It's not clear to me why such a hard distinction is drawn between software and hardware patents. The usual argument for this separation is that "software patents are just math", but then aren't hardware patents are just physics (which, ultimately, is also just math)? It feels like there's no clear line here, and whatever benefits, if any, are to be derived from patents, they apply equally to either side of it. Basically, either it's a net benefit to society, and then both kinds are valid; or it's a net drain on society, and then we should just get rid of them altogether. Or maybe set the bar for what is patentable much higher wrt to novelty and value (but, again whether it's hardware or software feels irrelevant).
  - sqeaky 9y ago
    I think I covered one major distinction well. Copy software has 0 cost, copying matter has some. This is just a re-wording and perspective change on "software patents are just math" angle. Some people feel that since there is no copying cost, software favors the little guy more than with physical goods, so normal patent protection doesn't provide an benefit. These people claim that a big big evil corporation could start making a million of their widget per month and out compete them, but with software this cannot happen per their arguments. I think these people acknowledge that both physical and software patents get abused and are imperfect but feel that physical patents provide enough gain to offset their downsides. I disagree with those people completely. I am unaware of ANY actual evidence that patents help.
    - yxhuvud 9y ago
      They are currently necessary for the payment structure in the medical industry. I'm not saying they couldn't be replaced for that somehow, but simply removing patents without having something in place would be very disruptive there.
      - valuearb 9y ago
        they are already far more disruptive everywhere else
    - 9y ago
- pnw_hazor 9y ago
  copyright protects what you do. patents protect how you do it. You copyright your source code. You patent your engineering innovations. The ease of duplicating software based inventions is an argument why patents are important for such inventions. Many tech startup companies that would have been steam rolled by IBM, and friends, have been protected by their patent portfolios.
kuschku 9y ago
Software patents should have the same requirements as real patents: you have to provide the full knowledge required to create the concept that is patented in them. You want to patent sticky scrolling? Then put the entire source code required for it into the patent. You want to patent your AI tech? Then put the entire code into the patent. Additionally, we should make sure that trade secrets are not protected in any way, and decompiling code to find out what it does, and replicate it, is legal, as long as it doesn’t violate patents. These measures would provide reasonable measures for companies wanting to protect their secret sauce, but also ensure that this technology is all public and available for research, and that after a few years it becomes available to competitors. Otherwise we’ll end up with Google, Amazon, etc piling up knowledge and patents, without ever giving anything back to society. And if you now try to argue with Google being "good", please take a look at ReCaptcha, where they take captcha associations given by users, but never publish the resulting recognition data (which then could be used by open source projects or researchers), or look at Android, where Google has now closed everything they could.
- CalChris 9y ago
  > Then put the entire source code required for it into the patent Some do. But patents already have an enablement requirement. This means that they must teach in sufficient detail for a person skilled in the art to carry out the claimed invention. That's what the whole Detailed description of the invention section is. Skip the claims and read the description. You might want the code; me, I want the design doc. That section should be clear and if it isn't, chances are it isn't enabling. If you don't enable, you'll probably get an office action (rejection) and if you don't (lazy examiner), you'll definitely lose when the patent gets challenged.
  - woah 9y ago
    That's a nice thought, but most software patents are written to be as broadly applicable as possible, not to be a good guide to implementation.
    - CalChris 9y ago
unityByFreedom 9y ago
Software is already protected by copyright. It was never meant to be patented. In fact, I believe you're not even supposed to use the word algorithm in your patents. You have to say something else, like system. Software patents are pointless and the only reason we still have them is it takes Congress forever to catch up with innovation. Patent trolls know this and are capitalizing on the period where they can shake down others while they still can.
realusername 9y ago
Copyright is enough, software patents do not exist in Europe and it works as well as in the US. I never saw a single patient which I would define myself as justified, most patents are something I could come up myself with in less than an hour of reflexion.

ivanbakel 9y ago

I don't see anything game-changing about their approach. Fighting instead of settling should definitely be praised, but the only differences between this legal challenge and any of the previous ones are the result of recent changes in the law or the judiciary, which are beyond Cloudflare's control. Nothing suggests that patent-trolling itself as a "game" is going to shift or go away after this, and until that is made to happen, it's going to be as lucrative as ever.

ChuckMcM 9y ago
I believe they were implying that by going after the firm through legislative attacks, ethics evaluations, and also working to invalidate patents that they were not sued for violating, as opposed to just showing up in court and defending the suit as filed, constitutes "game changing". I think it would be more accurate to say that they are fighting back more creatively than you might think they could at first glance.
wglb 9y ago
Then perhaps you missed one of the novel ideas Cloudflare is also filing a complaint with the ethics committee. And their talking to reporters.
- ivanbakel 9y ago
  That's a one-sentence action that's brushed over in the article. I see nothing suggesting it's novel or effective, and I don't have enough knowledge of patent suits to decide that.
  - wglb 9y ago
    There are at least two other tactics that are novel. The article as a whole indicates that this novel approach is effective.
    - pitaa 9y ago
      > There are at least two other tactics that are novel Good point. Cloudflare should patent them!

FussyZeus 9y ago

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

pedrocr 9y ago
Patents are not about damages. A patent is a limited-time monopoly to an idea that you can then extract value from. Inventing something, patenting it, and then licensing it out is exactly the business model patents are supposed to enable. Companies that don't make anything are perfectly valid under this model. The real solution is to either make sure prior art and non-obviousness requirements are properly enforced or just dismantle the whole thing as unworkable.
- dboreham 9y ago
  >The real solution is to either make sure prior art and non-obviousness requirements are properly enforced or just dismantle the whole thing as unworkable. Obviousness is the key issue for me. I suspect most people, even those who work in the technology fields, are not aware that it is considered essentially impossible to prove obviousness (source: I have worked as a consultant on several patent litigation cases). So you have the ridiculous situation that almost everyone in the relevant field believes that almost all patents granted are obvious, but almost no litigation succeeds in finding that same conclusion.
  - FussyZeus 9y ago
    Perhaps we need to establish some sort of obvious-evidence protocol? Some kind of common sense argument that can be presented in the court of law and weighed against other evidence? Example: Someone steals an apple to feed their hungry child. Yes, it's a crime, but sending the parent to prison isn't a solution; the child is still hungry, and now both of them will to varying extents have to be cared for by the state, all over a 59 cent Apple.

siliconc0w 9y ago

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

tracker1 9y ago
Frankly, if it weren't for the stupidity of the patent system, I don't know that Cloudflare would even have the patents. Has Cloudflare ever initiated patent litigation against anyone? The fact is that most patents for things that are "invented" but entirely virtually don't really deserve patent protection. Rarely is there significant research, expense or tooling to implement. Patents on software, processes and most extension patents are ridiculous in premise. That's what trade secrets are for.
- jgrahamc 9y ago
  Has Cloudflare ever initiated patent litigation against anyone? No, we have not.
  - prutschman 9y ago
    Have you ever threatened to, or alluded to your ability to do so, to obtain commercial negotiating leverage in a context other than defending the company from the threat of a patent suit?
    - jgrahamc 9y ago
      Not to my knowledge.
    - mobilefriendly 9y ago
      Who cares? Cloudflare are a practicing entity, presumably with legitimate patents. They aren't necessarily at war with software patents as a concept, just the obvious abuse.

notyourday 9y ago

It is all about finding a correct pressure point. Long time ago certain Philadelphia area law firms decided to represent vegan protesters that created a major mess in a couple of high end restaurants. A certain flamboyant owner of one the restaurants targeted decided to have a good time applying his version of asymmetric warfare. The next partners from those law firm showed up to wine and dine their clients in the establishment, the establishment(s) politely refused the service to the utter horror of the lawyers. Needless to say, the foie gras won... [Edit: spelling]

tareqak 9y ago
This account seems more like poor planning on part of the lawyers. I would assume representing a client would imply a sort of temporary boycott on the part of the lawyers towards the client's legal adversary.
- learc83 9y ago
  In a large firm, a lawyer isn't going to go through the active cases for every partner in the firm when choosing where to take clients for dinner.
  - PhasmaFelis 9y ago
    It seems a bit naive, then, to assume that the people you're litigating against will civilly keep their anger in Lawyer-Land and never hold a grudge in real life.
    - Bartweiss 9y ago
      There seems to be a lot of that at play in white-shoe firms. Perhaps less so now than when those positions were guaranteed for life, but some of the highest-powered lawyers I've known didn't have much intuitive sense that they were actually affecting people.
      - notyourday 9y ago

shmerl 9y ago

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

dsfyu404ed 9y ago
By prison you mean jobs in state government, right? Welcome to Massachusetts.
draw_down 9y ago
They're way too rich for that to ever actually happen. I agree, though.

subhrm 9y ago

Long live patents !

sctb 9y ago
Please comment civilly and substantively on Hacker News or not at all. https://news.ycombinator.com/newswelcome.html https://news.ycombinator.com/newswelcome.html https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html

dsfyu404ed 9y ago

Picture in your mind the following two scenarios: 1) Underwear models wrestling in an inflatable pool of lube 2) A biker gang and some dudes from ISIS getting in a brawl at a Superfund site. The first represents a normal b2b lawsuits. The second represents cloudflare and a patent troll fighting it out in Massachusetts.

bllguo 9y ago
not sure what kind of distinctions I'm supposed to be making between the two scenarios?

kelukelugames 9y ago

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

snug 9y ago
It's a documentry, not just the patent troll part, but the whole thing.

mabbo 9y ago

> “[Is Blackbird] doing anything thing that is illegal or unethical?” continues Cheng. “For the most part, it’s unethical. But it’s probably not illegal.” If it's not illegal, more work needs to be done to make it illegal. Inventors always have avenues, moreso today than ever before.

adekok 9y ago
While I agree it should likely be illegal, the solution to bad laws isn't more laws. A better solution would be to * do better examination of patents so that BS ones don't get issued * allow third-parties to invalidate patents by showing prior art to the patent office for a nominal fee * punish patent applicants who know about, or should have known about prior art * if a patent is invalidated, force them to return all of the money they were paid for licenses and/or fees See the lawsuits around the "Happy Birthday" song for similar problems: http://www.latimes.com/local/lanow/la-me-ln-happy-birthday-lawsuit-settlement-public-domain-20160208-story.html http://www.latimes.com/local/lanow/la-me-ln-happy-birthday-l... IIRC, the settlement came about because the plaintiffs were able to prove that the song had been published and put in the public domain. They had found a copy of a songbook which was the definitive proof. How did they find the songbook? They were given a scanned copy in discovery... with most things clear, and the date suspiciously blurred. After a few months of looking, they found a print copy which confirmed their suspicions. i.e. it looks like Warner Brothers deliberately fudged the evidence. If the plaintiffs hadn't noticed, or hadn't been able to find a print copy, people would still be paying license fees. When there is no punishment for lawyers who break the law, I think that "ignorance of the law" is an excuse. There is just no way that ignorance isn't a defence for me, while at the same time the lawyers use the law to attack me, and aren't punished for their violations.
- criddell 9y ago
  > allow third-parties to invalidate patents by showing prior art to the patent office for a nominal fee I think there should be a punitive part to this as well. If you apply for a patent that is later invalidated, then those that licensed the patent should be made repaid. And yes there should be a fee for trying to invalidate a patent, but there should also be a reward if they are successful.

danschumann 9y ago

Can I create 5 more HN accounts just to +1 this some more?

oskarth 9y ago

> So-called non-practicing entities — or holders of a patent for a process or product that they don’t plan to develop — often use them to sue companies that would sooner settle rather than pay what can add up to $1 million by the time a case reaches a courtroom. Why on earth aren't non-practicing entity patent lawsuits outlawed? Seems like a no-brainer, and I can't imagine these firms being big enough to have any seriously lobbying power.

dangrossman 9y ago
> Why on earth aren't non-practicing entity patent lawsuits outlawed? The NPE category includes universities and researchers. Many inventions can't be brought to market without significant capital, and not all inventors are interested in commercializing their inventions themselves. Just because you're not personally going to build a billion dollar chip fabrication facility to implement the new silicon etching process your research group patented shouldn't prevent you from licensing it to Intel and suing someone else that uses your invention without a license, IMO.
- oskarth 9y ago
  > The NPE category includes universities and researchers. Good point. Aren't they more likely to develop patents rather than buy them, though? Or are there more edge cases missing?
  - deleted 9y ago
    [deleted]
  - _rpd 9y ago
    The patents have no value if the ultimate owners are unable to enforce them. Once the patent exists, it is a tradable asset like copyright.
    - phkahler 9y ago
      I'm pretty sure I don't like the idea that patents or copyrights can be transferred. There is the issue in both cases of cooperative invention or writing thought, and I'm not sure how to deal with that.

jgrahamc 9y ago

More detail on what we are doing from three blog posts: Standing Up to a Dangerous New Breed of Patent Troll https://blog.cloudflare.com/standing-up-to-a-dangerous-new-breed-of-patent-troll/ https://blog.cloudflare.com/standing-up-to-a-dangerous-new-b... Project Jengo https://blog.cloudflare.com/project-jengo/ https://blog.cloudflare.com/project-jengo/ Patent Troll Battle Update: Doubling Down on Project Jengo https://blog.cloudflare.com/patent-troll-battle-update-doubling-down-on-project-jengo/ https://blog.cloudflare.com/patent-troll-battle-update-doubl...

saagarjha 9y ago
Umm…I think you mean Jango Fett, not "Jengo" Fett, in the caption for the first image in the second article.
- acobster 9y ago
  The idea of using the name Jango is probably patented.
  - saagarjha 9y ago
    Possibly, but that doesn't mean they can't spell it correctly in an image caption. Indiana Jones is right below it, and it's correct.
    - chrisbennet 9y ago
      I think that was a joke.
0x1BADBABE 9y ago
additionally: The Patent scam intro by Austin Meyer https://www.youtube.com/watch?v=sG9UMMq2dz4 https://www.youtube.com/watch?v=sG9UMMq2dz4
eru 9y ago
> [...] Blackbird combines both a law firm and intellectual property rights holder into a single entity. In doing so, they remove legal fees from their cost structure and can bring lawsuits of potentially dubious merit without having to bear any meaningful cost. Don't the lawyers have opportunity costs?

redm 9y ago

It would be great if the "game" was really altered but I've heard that statement and hope many times over the last 10 years. While there has been some progress, patent trolling continues. Here's hoping...

SaturateDK 9y ago

This is great, I guess I'm going "Prior art searching" right away.

tracker1 9y ago

I think that this is absolutely brilliant. I've been against the patent of generalistic ideas, and basic processes for a very long time. Anything in software should not really be patentable, unless there is a concrete implementation of an invention, it's not an invention, it's a set of instructions. Let software work under trade secrets, but not patents. Anyone can implement something they think through. It's usually a clear example of a need. That said, I think the types of patent trolling law firms such as this deserve every bit of backlash against them that they get.

mjevans 9y ago
Software is already covered by /copyright/ law. It does not need patents.
- MatthewWilkes 9y ago
  Copyright covers implementations, not ideas. I have no moral objection to truly novel inventions in computer science being protected by patents. An innovative search algorithm, a compression scheme, etc. Its shit when MP3s and GIFs were encumbered, but they were genuine inventions whose sharing publicly genuinely advanced the public good. The kind the patent trolls use are not innovative in the same way. We need a stricter definition of obvious to one versed in the art, not a ban throughout the field.
  - deleted 9y ago
    [deleted]
  - Hermel 9y ago
    I'm pretty sure that if you rewrote Harry Potter from scratch with new names and wording (redoing the implementation) and published that, you would still get in trouble. So copyright is somewhat broader than you think.
    - indolering 9y ago
      Nope, it's not a violation of copyright.

JumpCrisscross 9y ago

I've used Latham & Watkins. Just made a call to let a partner there know what I think about his firm's alumna and how it colors my opinion of him and his firm. Encourage everyone to check with your firm's General Counsel about this. If you use Latham, or Kirkland or Weil, encourage your GC to reach out and make your views heard. It's despicable that these lawyers are harassing their firms' former and potential clients.

cortesoft 9y ago
What exactly are they supposed to do about that, though? They left the firm?
- Bartweiss 9y ago
  Well, law firms commonly do some amount of pro bono work as a public service and reputation builder. I'd be interested to see a firm or two donate legal support to smaller companies fighting trolls - it'd be a show of good faith and might immediately knock out low-powered trolls. Newegg has showed what happens when these cases actually get fought, and that's something a firm could offer to build popularity and support.
  - bdowling 9y ago
    Helping a for-profit company avoid paying licensing fees hardly qualifies as pro bono work.
    - Bartweiss 9y ago
      How about if they just did the legal work to file for USPTO reexamination to invalidate the patents?
- JumpCrisscross 9y ago
  It's less about them doing something ex post facto and more that this reflects on the type of people Latham hires and retains. If a bunch of people leaving an investment bank run out and commit fraud, the bank doesn't (necessarily) look bad for failing to stop it. It looks bad by association. We assume, rightly or wrongly, likeness in peoples' voluntary associations.

draw_down 9y ago

Unfortunately, I think this is written in a way that makes it hard to understand what exactly Cloudflare is doing against the troll. They're crowdsourcing prior art and petitioning the USPTO?

unityByFreedom 9y ago

> Blackbird is a new, especially dangerous breed of patent troll... Blackbird combines both a law firm and intellectual property rights holder into a single entity. In doing so, they remove legal fees from their cost structure and can bring lawsuits of potentially dubious merit without having to bear any meaningful cost That's not new. It's exactly what Intellectual Ventures was (or is?) doing.

fhrow4484 9y ago

What is the state of "anti-patent trolls" laws in different state? I know for instance Washington state has a law like this effective since July 2015 [1][2]. What is it like in other states, specifically California? [1] http://www.atg.wa.gov/news/news-releases/attorney-general-s-patent-troll-legislation-passed-legislature http://www.atg.wa.gov/news/news-releases/attorney-general-s-... [2] http://app.leg.wa.gov/RCW/default.aspx?cite=19.350&full=true http://app.leg.wa.gov/RCW/default.aspx?cite=19.350&full=true

pnw_hazor 9y ago
The bad faith element is almost impossible to prove. It certainly isn't met in the Cloudflare case. Certainly, experienced patent litigators are very unlikely to file a case that would be considered in bad faith.

avodonosov 9y ago

I've read the patent. But what part of CloudFlare services it claims to cover? Also, the patent applies the same way to almost any proxy server (ICAP and similar https://en.wikipedia.org/wiki/Internet_Content_Adaptation_Protocol https://en.wikipedia.org/wiki/Internet_Content_Adaptation_Pr...)

avodonosov 9y ago
Can the Decorator design pattern be considered a prior art?

arikrak 9y ago

Business usually settle rather than fight patent trolls, but I wonder if fighting is worth it if it can deter others from suing them in the future? I guess it depends somewhat on the outcome of the case..

avodonosov 9y ago

It was late summer night when I noticed that article on HN. I immediately noticed it's organized like a novel - this popular lame style which often annoys me lately: Matthew Prince knew what was coming. The CEO of Cloudflare, an internet security company and content delivery network in San Francisco, was behind his desk when the emails began to trickle in ... Was he really behind his desk? Hesitated a little before posting - am I trying to self-assert by deriding others? But this "novel" article style is some new fashion / cliche which might be interesting to discuss. Let's see what others think.

bubblethink 9y ago
The recent WaPo article about Russian interference in the US election where stuff arrived in envelopes with top secret written on them, and people huddling around it, was also off putting.
Zyst 9y ago
I like it. I really enjoy the overly dramatic and/or expositional style is something I greatly enjoy in general.
xattt 9y ago
It's emulating the style of writing that Wired pioneered in tech. When Joe Blow tries their hand at it, it's overdone and nuances that makes it great are in all the wrong places.
nstart 9y ago
It's a matter of personal taste. The only cautionary advice to writers who employ this style would be to tell them that not all exaggerations are equal. Sitting behind the desk when the email came in is a harmless exaggeration. It doesn't matter if he was really in bed or at dinner. The dramatic embellishment does little or nothing to change the facts or perceptions in a meaningful way. If it's ok, we can point to NYT's article on Trump and his aides from some time ago. Aides stumbling in the darkness unable to find light switches type line. Something like that is damaging and deserves proof before writing. Doesn't matter which way you lean, that's dangerous waters since that's been written with an intent to alter perceptions in a meaningful way. To cast a group of people as confused and befuddled. If this article (the TC cloudflare one) was to write about the patent trolls in a dramatic style that vilified them, that too would be wrong. Something like "In the photo, Freeman can be seen standing on a bridge with a wry smile as if imagining the future in which the lawyers control the game." Would be very dangerous and should not be encouraged. Thankfully this article seems to follow a simple expositional style (somewhat third person narrative of cloudflare's perspective) with a little droplet of drama that just enhances the story rather than manipulating perceptions or reality.

avodonosov 9y ago

Can the Decorator design pattern be considered a prior art?

mgleason_3 9y ago

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

pnw_hazor 9y ago
Baloney. Innovation is also driven by people trying to work around patents or otherwise discover alternative ways to solve problems. I didn't notice the Amazon One-Click patent slowing innovation down while it was still valid.
Scea91 9y ago
Do you feel that there is a difference in innovation between software and other fields? The obvious next steps you are talking about are usually only obvious in hindsight.
- TeMPOraL 9y ago
  The difference that comes to my mind is costs. I suspect software "inventions" are usually very cheap to make (a person with a laptop is enough), compared to other industries.

y0ssar1an 9y ago

Go Cloudflare Go!

bluejekyll 9y ago

Something needs to give on this stuff. It's probably going to be hard to get a significant change done, such as getting rid of software patents (following from no patents on Math). I've wondered if one way to chip away at them, would be to make Patents non-transferable. This would preserve the intent, to protect the inventors R&D costs, but not allow the patents to be exploited by trolls. This would have the effect of devaluing patents themselves, but it's not clear that patents were ever intended to carry direct value rather they exist to grant temporary monopolies for the inventor to earn back the investment.

anonjuly12 9y ago

> It’s for this reason that Prince sees Cloudflare’s primary mission as figuring out how to increase Blackbird’s costs. Explains Prince, “We thought, if it’s asymmetric,” because it’s so much cheaper for Blackbird to sue than for a company to defend itself, “how can we make it more symmetric? And every minute that they spend having to defend themselves somewhere else is a minute they aren’t suing us or someone else.” They should take it a step further and apply the Thiel strategy of finding people with grievances against the founders of the patent troll and support individual lawsuits against them.

tragomaskhalos 9y ago

This reminds me of an altercation in the street that my neighbour reported overhearing some years ago: Aggressive Woman: You need to watch your step, my husband is a criminal lawyer Woman she was trying to intimidate: (deadpans) Aren't they all ?

corobo 9y ago

I'm hoping their fight actually leads to a defeat rather than a submission. I have faith that Cloudflare will see this through but I also had faith that Carolla would too. https://www.eff.org/deeplinks/2014/08/good-bad-and-ugly-adam-carollas-settlement-podcasting-troll https://www.eff.org/deeplinks/2014/08/good-bad-and-ugly-adam...

bluesign 9y ago

Tbh I dont think there is a practical solution for patent trolls. Patents are basically assets, and they are transferable. Making then non-transferable is not a solution at all. Basically law firms can represent patent owners. System needs different validity for patents, which should be set after an evaluation, and can be challenged at the courts. Putting all patents in the same basket is plain stupid.

drtillberg 9y ago

This is a dysfunction in the patent and legal processes that cannot be fixed by even more dysfunctional tactics deployed against the NPE. The rules against champterty (buying a cause of action) have been relaxed considerably to the extent in many jurisdictions of being a dead letter, and the litigation financing industry seems to have a better sound bite. At least half of the problem is the "American Rule" of rarely shifting legal fees, which if you dig a bit you will find is of recent vintage. Back in time, for example in Massachusetts, there actually is a law for shifting legal fees as costs as a matter of course; the catch is that the fee is very low (even at the time it was enacted) of about $2.50 per case, which partly reflects inflation and partly antagonism toward legal fees. I wonder whether a compromise solution would be to require a deposit for costs of a percentage of the demand for recovery like 2.5% of $34mm, which post-suit you could figure how to divvy up. That would make the demand more meaningful, and provide a tangible incentive to the plaintiff to think a little harder about pricing low-probability lottery-ticket-type litigation.