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Winning the Blackbird Battle

620 points by jgrahamc 8y ago

endofcapital 8y ago
How can I win the battle with endless captchas from cloudflare? Getting like one an hour, it's really annoying and I'm tired of training your machines or training your partner's machines.
- mirimir 8y ago
  That's an off-topic hijack. But I do understand the frustration. However, it's important to keep in mind that the CAPTCHAs are entirely optional, and configurable. So it's the website that you need to complain to, not Cloudflare or Google.
jedberg 8y ago
I'm glad they won, and I applaud them for fighting for the good of everyone else. Thank you Cloudflare. Unfortunately by not going to trial, they didn't set any precedent, and sadly I don't think they did much damage to the patent troll system. Hopefully I'm wrong. :(
- Someone1234 8y ago
  > Unfortunately by not going to trial, they didn't set any precedent The article says: > We’re happy to report that on Wednesday, the U.S. Court of Appeals for the Federal Circuit issued an opinion affirming a lower court decision dismissing the case brought by Blackbird Tech.
  - jedberg 8y ago
    That's not a precedent. That's just affirming a summary judgment and saying, "Yep, they're right, we're not gonna hear the case either."
    - Someone1234 8y ago
      The lower court can set a precedent too.
      - jedberg 8y ago
        It can, but it made a summary judgment. My understanding is that precedent isn't set with a summary judgement.
        Someone1234 8y ago
        The upper court's opinion was a summary judgement the lower court wasn't: https://blog.cloudflare.com/bye-bye-blackbird/ https://blog.cloudflare.com/bye-bye-blackbird/
        jmalicki 8y ago
        The lower court dismissed the case following a preliminary motion before trial... How is that not considered a summary judgement? Edit: a dismissal is even less precedential than a summary judgement, as summary judgements come after discovery, unlike dismissals.
      - deleted 8y ago
        [deleted]
  - dharmab 8y ago
    The lower court decided not to hear the case because the specific patent was unenforceable. That won't impact any future cases on other patents.
    - tyingq 8y ago
      Probably creates a freebie template of sorts for suits using that specific patent. Supposedly Blackbird has many more though.
    - matt4077 8y ago
      I’m not sure what your preferred outcome would be? A court ruling patents in general unenforceable is rather unlikely. “Patent trolling” obviously isn’t a legal concept, and would be hard to define. Any definition would actually just loop back to patentability, with exactly the result of this lawsuit.
- save_ferris 8y ago
  IANAL; how would a precedent help future cases like this? They make it sounds like the slow and expensive process of just participating in the legal system is what enables trolling, not the actual prior opinions of courts.
  - jedberg 8y ago
    IAalsoNAL, but my understanding is if there were a bunch of opinions overturning claims of trolls, it would change the calculus of settlement and therefore make it too expensive to be a troll because of the high risk of loss. Yes, the long trial lengths are also a problem, and maybe an easier one to fix, by adding expedited hearings just for these things. But at the end of the day the trolls troll because the reward is greater than the risk.
    - URSpider94 8y ago
      First of all, it’s not clear that they could have taken this to trial, as the judge didn’t see a basis for argument (that’s what summary judgment means). Second, there is no legal theory or precedent that I’m aware of that would factor in the troll-ish nature of the plaintiff in a patent ruling. Patent trolls lose because they are usually stretching to apply vague patent claims to a large number of targets. Finally, trolls have a heavily uneven playing field. Most troll farms have in-house counsel, so they have very low litigation costs. Also, they typically segregate every patent or patent family into a separate corporate entity so that any fee or damage awards won’t claw back overall winnings.
  - pseudolus 8y ago
    This particular case is explicitly non-precedential as is indicated on the top of the first page. The decision was made under Rule 36 of the Rules of Practice of the Court of Appeals for the Federal Circuit which allows the Court to enter a judgment without an opinion. The case might be precedential in the business logic sense in that potential trolls will have to alter their calculus to take into account that companies will no longer roll over and pay token amounts simply to exit litigation. Also complicating their calculus is an earlier decision from the Supreme Court (Octane Fitness, LLC v. Icon Health & Fitness) which effectively made it substantially easier for a prevailing party to recoup their legal fees in patent related matters.
- deleted 8y ago
  [deleted]
- monochromatic 8y ago
  edit: I just noticed that the CAFC opinion is designated nonprecedential > The court’s ruling comes in response to a preliminary motion filed by Cloudflare under Section 101 of the U.S. Patent Act. That section defines what sort of things can be patented. Such motions are generally referred to as “Alice” motions because the U.S. Supreme Court held in a 2014 case (Alice Corp. v. CLS Bank Int’l) that a two-part test could be used to determine patent eligibility based on whether something is more than merely an abstract idea or at least creates an inventive use for an abstract principle. The Alice test helps to determine whether something is patentable subject matter or an unpatentable fundamental concept. Judge Chhabria found that Blackbird’s ‘355 patent was too abstract to be patentable subject matter. (https://blog.cloudflare.com/bye-bye-blackbird/ https://blog.cloudflare.com/bye-bye-blackbird/) This ruling was then affirmed by the CAFC. In what way is it non precedential? I sure wouldn't want to be Blackbird trying to assert that patent in a new litigation...
  - howard941 8y ago
    Do you have a link to the Fed Circuit's opinion?
    - apendleton 8y ago
      The whole opinion, such as it is, is right there at the bottom of the blog post. It just says "Affirmed."
      - deleted 8y ago
        [deleted]
  - apendleton 8y ago
    The patent wasn't revoked. Blackbird can continue to collect from parties it has already sued who settled, and can sue new parties if it so chooses. The courts who hear those cases aren't required to respect the previous judgments -- the appeals court ruling even says "Note: This disposition is nonprecedential" right at the top. And even if courts would potentially find the previous ruling at least persuasive, respondents would still have to undergo significant court costs just to mount a defense, and many will still choose not to do so and instead to settle, which Blackbird knows.
- mamurphy 8y ago
  Summary Judgment is persuasive precedent. A higher court affirming Summary Judgment is controlling precedent for that circuit and highly persuasive precedent for other circuits. The ruling here is limited and narrow as to the particular patent in question, but it is precedent. Your hopes of being wrong are fulfilled.
  - ceejayoz 8y ago
    The ruling's first line is: NOTE: This disposition is nonprecedential.
- imglorp 8y ago
  Also Blackbird holds at least 73 other patents [1], some notably shitty, with which to sue the next poor sap. The sap doesn't even need to require buttock lift support [2] (I am NOT making this up!), for example, in order to be sued and perhaps pay the extortion fee out of court to be rid of it. The system is broken. 1. https://www.cloudflare.com/blackbirdpatents 2. https://patents.google.com/patent/US7081036
- pnw_hazor 8y ago
  The patent was invalidated on common/conventional grounds. There is no new precedent here.
maehwasu 8y ago
It's also important to name and shame law firms that represent patent troll clients.
- tyingq 8y ago
  In this case, the law firm is the patent troll. Two lawyers formerly from firms that used to fight patent trolls. So, I suspect shame isn't going to bother them. "Blackbird combines both a law firm and intellectual property rights holder into a single entity. In doing so, they remove legal fees from their cost structure and can bring lawsuits of potentially dubious merit without having to bear any meaningful cost." (https://blog.cloudflare.com/standing-up-to-a-dangerous-new-breed-of-patent-troll/ https://blog.cloudflare.com/standing-up-to-a-dangerous-new-b...)
  - duxup 8y ago
    >In this case, the law firm is the patent troll. That seems more common, as does law firms who operate as bill collectors.
  - rc_kas 8y ago
    Ok maybe instead of shame, it just important to document and track their history, in case it useful to future researchers.
  - gimmeThaBeet 8y ago
    For a second I thought that that would be an "About Us" on blackbird's site, because the first part makes it seem like a business pitch. Then I thought "why would you advertise that you bring dubious lawsuits?"
- crankylinuxuser 8y ago
  Is it also appropriate to "call out" attorneys and legal firms that defend defendants accused of unconscionable crimes (think Boston Marathon bomber)? Attorneys are to help their represented either to make whole, or defend against the state. If they are truly acting in an unethical stance, then they need tried by the state board. If they were acting unethically, then perhaps their license should be revoked. But these ethics should apply to all lawyers, and not because they chose an 'unsavory' client.
forgotmypw3 8y ago
>In addition to vigorously opposing this case in court, we created and sponsored Project Jengo to push back against the incentives that empower patent trolls like Blackbird Tech. Now that the case is over, we will be wrapping up Project Jengo and will report back with a summary of the Project’s successes in the near future. I don't understand... Couldn't they expand the project to help others in a similar situation?
- rossdavidh 8y ago
  I think the idea of the report back is that the knowledge of how to use such a strategy, will be widely disseminated, and that will make other victims of patent trolling more likely to fight than settle.
  - WrtCdEvrydy 8y ago
    Improvise. Adapt. Overcome.
    - loeg 8y ago
      This isn't reddit.
      - photoGrant 8y ago
        You're contributing to it being so ;-)
- scabarott 8y ago
  I didn't understand this too. It read as if they reached a settlement with Blackbird and part of that settlement involved taking down Project Jengo. From the site: "The larger bounty (up to $30,000) will be spread among those submitting substantial prior art which reads on any of the 34 other outstanding Blackbird patents or their 3 in-flight patent applications and could lead to the invalidation of these dubious patents" Any reason why they're wrapping this up if this hasn't yet been achieved? (those patents are still active)
tracker1 8y ago
I'm not sure they shouldn't expand Project Jengo instead of shutting it down.
- djk44 8y ago
  I can see the value but it's largely a question of resources. There are some strong collectives that are working in this space, not sure we have the time to run that as a side job. Plus, PJ is narrowly-focused on this troll, which is why we said from the beginning, it would last as long as the lawsuit was active. In the meantime, we're focusing our community engagement efforts on Project Galileo and Athenian Project.
  - tracker1 8y ago
    I understand.. upon reflection, probably best to just support EFF efforts on this front.
djk44 8y ago
Hi. Cloudflare GC here. Some informed comments here. Feel free to AMA.
- wills_forward 8y ago
  1) How can the broader community help end this sort of nonsense? 2) Do you see any potential for a company to offer patent troll defense as a service and drive costs down, or does it seem too big a problem to productize/scale a solution for?
  - djk44 8y ago
    1. It's all about underlying incentives. Short term those will always counsel early settlement, if there's enough awareness and collective action to take the long-term view, then we might be able to push incentives in another direction. 2. Some of the existing collectives combine their IP assets to give each other a license to each other's patents or the benefit of any future settlements, which limits the exposure a bit. Not sure if something like underwriters of patent troll insurance could combine the incentives enough into long-term view to make that worthwhile.
  - ehsankia 8y ago
    https://www.theverge.com/2015/7/23/9021191/google-patent-starter-program-free-patents-fights-trolls https://www.theverge.com/2015/7/23/9021191/google-patent-sta...
    - sandov 8y ago
      The same Google that did this: https://arstechnica.com/tech-policy/2018/06/inventor-says-google-is-patenting-work-he-put-in-the-public-domain/ https://arstechnica.com/tech-policy/2018/06/inventor-says-go... :thinking:
      - ehsankia 8y ago
        The reasoning here was that if they didn't patent it, some other bad actor / patent troll would, and that would cause far more problems. Google so far has a record of never using a patently offensively, and only time will tell if this will keep holding true. Google also has a giant shared patent pool that they let other companies use to defend themselves, so this is part of that, alongside the article I shared.
ChuckMcM 8y ago
Now if they can recover legal costs from Blackbird the circle will be complete.
- Cronkan 8y ago
  They don't get that automatically? If so, that's really shitty if you get sued.
_bxg1 8y ago
Were they able to get the patent in question invalidated? I know that's often one of the main outcomes hoped for when taking a stand against a patent troll.
_bxg1 8y ago
To any legal experts present: at what point can patent trolls be charged with extortion?
- yubiox 8y ago
  You can threaten to sue anyone for anything basically but you can't threaten to call the cops on them unless they pay you. You can see the actual details spelled out in layman terms in (for example) the California jury instructions for CA PC 518 extortion. https://www.justia.com/criminal/docs/calcrim/1800/1830/ https://www.justia.com/criminal/docs/calcrim/1800/1830/
scabarott 8y ago
The case against trolls is so clear and obvious, why does it seem so difficult to craft legislation to prevent this? I imagine a simple addition to patent laws invalidating a patent if the holder does not commercialize it after a certain period should get rid of NPEs. Is it not that simple? Also do you know if there's anything like patent-troll insurance that covers legal fees in cases like this? If not, why not? It seems like this has been a problem for so long not only for small businesses but for major players (with vast amounts of resources and clout) that I'm baffled why the problem continues to exist. Is there something about the US legal system or business in general that my simplistic mind is not understanding?
- amelius 8y ago
  > I imagine a simple addition to patent laws invalidating a patent if the holder does not commercialize it after a certain period should get rid of NPEs. I suppose there are sneaky ways around this, such as marketing a product that features the patent but is otherwise inadequate. Never underestimate the resourcefulness of patent trolls
  - AtHeartEngineer 8y ago
    Yep, you can make one simple flashy thing, say it does X feature, sell it to your spouse and say it's been commercialized
- LeifCarrotson 8y ago
  It's hard to draw a legal line between a few lawyers with some bad patents and a garage inventor struggling to make his idea profitable. Not because those are hard to differentiate logically, but because one side is all about manipulating the legal system while the other has no knowledge of it nor funds with which to navigate it. Also, the system is supposed to protect the latter from big corporate legal departments that want to steal his idea. It's a hard problem because it's profitable for bad actors to get wrong decisions made.
  - djk44 8y ago
aero142 8y ago
I would love for someone to share an example of a good software patent. I have yet to encounter one. The only things I have encountered that match my idea of a patentable idea are algorithms, which are not patentable. I have yet to encounter something where there was value in the idea and not all the value in creating a robust, usable, production ready version of it.
- lifeisstillgood 8y ago
  I agree - perhaps we need an anti-Project Jengo where we look for software patents that are worthwhile and enhance the planet. There must be some?
- dboreham 8y ago
  Algorithms are patentable, if you add ", running on a computer". E.g. map-reduce https://patents.google.com/patent/WO2012135319A1 https://patents.google.com/patent/WO2012135319A1
  - mikekchar 8y ago
    I'm not familiar enough with US software patents to really comment intelligently, but my understanding is that machines are patentable. Many machines execute an algorithm. This is inevitable. For example, if you have a process for flash freezing fish and you build a machine to execute that process, then that machine is patentable. The algorithm that the machine executes is an integral part of the machine and therefore part of the patent. Mathematical constructs are not inventions, but discoveries. This is why a mathematical construct can not be patented. You can't patent a method for finding the circumference of a circle because the relationships are not something you construct. It just is. You can discover it, but you can't invent it. My understanding of the "running on a computer" type of argument is that building a machine to do something is an invention -- even if that machine relies on mathematical facts. In fact, all machines rely on physics, and chemistry, etc that can be modelled with these mathematical facts. Building a machine that relies on mathematical facts and executes an algorithm, does not in itself mean that the machine is not an invention. It does not in itself mean that the invention is not of the same class of things that patents were meant to work with. My personal favourite example to think about is PKI type applications. The fact that one way hashes are hard to factor is a discovery, not an invention. The actual algorithms we use in PKI, no matter how much creativity was used in discovering them, are still simply discoveries. We don't create math, we explore it. However, is a machine that uses this math to create a signature that is hard to fake an invention? Is it any less an invention than a machine that uses the laws of physics (which we also don't invent) to fly? Please note that I don't think software patents should exist. However, there are many people who disagree. The first step in getting them to change their mind is to understand why they think the way they do. It's easy to oversimplify the situation and to just imagine that it is bad will and greed that drives your opposition. However, if you don't deal with their reasonable positions, you won't make any progress. The bad guy/good guy analogy feels good, but the world is unfortunately a lot more nuanced than that.
barbegal 8y ago
And once again the only people making money is the lawyers. There was no need for the Cloudflare lawyers to produce 900 pages of briefs. A few pages and a couple of hours in court would have been enough to persuade any judge that the claim should be dismissed. Instead I expect close to a million dollars worth of legal fees has been frittered away.
- notacoward 8y ago
  > There was no need for the Cloudflare lawyers to produce 900 pages of briefs Is that a statement based on empirical evidence, or is it based on how things "should" work? In my dealings with courts, "a few pages and a couple of hours" isn't enough to settle anything whatsoever. If the plaintiff provides 650 pages, that's going to mean a lot of claims and arguments that have to be rebutted no matter how ridiculous they are. Right or wrong, that's the way it is.
- dctoedt 8y ago
  Um ... lawyer and former litigator here; I've done patent-case appeals at the Federal Circuit in a prior life: 1. Especially thanks to the Supreme Court's utter trashing of the analytical method (in Alice and other cases), it's not all that simple to move for dismissal on the pleadings. 2. I've looked at the patent and its claims; with a different trial judge and/or a different three-judge panel at the court of appeals, the outcome could easily have been different. CloudFlare's lawyers must have done a pretty good job, because getting a peremptory affirmance in the court of appeals under "Rule 36" [0] is a non-trivial achievement. [0] http://www.cafc.uscourts.gov/sites/default/files/rules-of-practice/MASTERFederalCircuitRulesOfPractice-6.6.16.pdf#page=136 http://www.cafc.uscourts.gov/sites/default/files/rules-of-pr...
  - djk44 8y ago
    See ccrglaw.com -- Great lawyers, they did a great job for us.
sam_goody 8y ago
The current patent system helps the corporations at the cost of inventors (who will inevitably be bankrupted by suing them. Especially as with a small change a new patent can be issued and the inventor counter-sued * ) Hard to do anything about that, as the lobbyists and the common folk both want patents. Perhaps a solution is to limit the number of patents an individual can hold to 100, and a corporation to 100 + 10 per employee (or some similar structure). An exception could be made if the patents would be defensive [a not-yet-existing class of patent that prevents you from being sued but doesn't let you sue]. This would be perceived as anti-big-corp, so has a chance of working for the politician pushing it. It would actually help the inventor, as it would keep the trolls out, and keep the mega corps from just patenting everything under the sun and suing right and left to prevent any startup from entering their area. It would also put a certain amount of pressure to limit the size and power of the biggest corporations (at the least encouraging them to spin off subsidiaries and employ more.) And lastly, it would cut down on the number of patents being filed daily, so that the patent authority could have time to actually review them. * I have an invention that could improve the world. The patent attorney told me that if I brought it to market, I could expect to find a Chinese knockoff with weeks, and within months I would likely be fighting just to keep production, as "improved" versions will be patented by U.S. corporations (he told me which ones even). He said it makes sense to patent anyways, and if another small time inventor doesn't see my patent and brings it to market, I could sue them. A path he assured me is less risky and possibly more lucrative that being the producer. You cannot even imagine how many items never go to market because patents. An even better system would be to simply use all the money that now goes into patents to provide grants for inventors. That would actually help me get to market (at all!) and would actually improve the world instead of hurting it.
blunte 8y ago
I wish it were possible to pursue all the people involved on the troll side and burn them to the ground (financially and legally speaking). People like that are the ticks of humanity, putting a drag on human productivity and progress (for their own gain). What's worse, and this also applies to many groups who affect laws which benefit them at the cost of most everyone else, is that their gains are small compared to the overall cost to society. In many cases it would be more efficient just to get everyone to agree to each pay $1 to the leeches and move on. Still wrong, but less wasteful.
mapcars 8y ago
I wrote a letter to all the persons listed in an article of what I think about them. Suggest you do the same.
SergeyDruid 8y ago
It reminds me of Newegg patent troll case!

620 points by jgrahamc 8y ago

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

mirimir 8y ago
That's an off-topic hijack. But I do understand the frustration. However, it's important to keep in mind that the CAPTCHAs are entirely optional, and configurable. So it's the website that you need to complain to, not Cloudflare or Google.

jedberg 8y ago

I'm glad they won, and I applaud them for fighting for the good of everyone else. Thank you Cloudflare. Unfortunately by not going to trial, they didn't set any precedent, and sadly I don't think they did much damage to the patent troll system. Hopefully I'm wrong. :(

Someone1234 8y ago
> Unfortunately by not going to trial, they didn't set any precedent The article says: > We’re happy to report that on Wednesday, the U.S. Court of Appeals for the Federal Circuit issued an opinion affirming a lower court decision dismissing the case brought by Blackbird Tech.
- jedberg 8y ago
  That's not a precedent. That's just affirming a summary judgment and saying, "Yep, they're right, we're not gonna hear the case either."
  - Someone1234 8y ago
    The lower court can set a precedent too.
    - jedberg 8y ago
      It can, but it made a summary judgment. My understanding is that precedent isn't set with a summary judgement.
      - Someone1234 8y ago
        The upper court's opinion was a summary judgement the lower court wasn't: https://blog.cloudflare.com/bye-bye-blackbird/ https://blog.cloudflare.com/bye-bye-blackbird/
        jmalicki 8y ago
        The lower court dismissed the case following a preliminary motion before trial... How is that not considered a summary judgement? Edit: a dismissal is even less precedential than a summary judgement, as summary judgements come after discovery, unlike dismissals.
    - deleted 8y ago
      [deleted]
- dharmab 8y ago
  The lower court decided not to hear the case because the specific patent was unenforceable. That won't impact any future cases on other patents.
  - tyingq 8y ago
    Probably creates a freebie template of sorts for suits using that specific patent. Supposedly Blackbird has many more though.
  - matt4077 8y ago
    I’m not sure what your preferred outcome would be? A court ruling patents in general unenforceable is rather unlikely. “Patent trolling” obviously isn’t a legal concept, and would be hard to define. Any definition would actually just loop back to patentability, with exactly the result of this lawsuit.
save_ferris 8y ago
IANAL; how would a precedent help future cases like this? They make it sounds like the slow and expensive process of just participating in the legal system is what enables trolling, not the actual prior opinions of courts.
- jedberg 8y ago
  IAalsoNAL, but my understanding is if there were a bunch of opinions overturning claims of trolls, it would change the calculus of settlement and therefore make it too expensive to be a troll because of the high risk of loss. Yes, the long trial lengths are also a problem, and maybe an easier one to fix, by adding expedited hearings just for these things. But at the end of the day the trolls troll because the reward is greater than the risk.
  - URSpider94 8y ago
    First of all, it’s not clear that they could have taken this to trial, as the judge didn’t see a basis for argument (that’s what summary judgment means). Second, there is no legal theory or precedent that I’m aware of that would factor in the troll-ish nature of the plaintiff in a patent ruling. Patent trolls lose because they are usually stretching to apply vague patent claims to a large number of targets. Finally, trolls have a heavily uneven playing field. Most troll farms have in-house counsel, so they have very low litigation costs. Also, they typically segregate every patent or patent family into a separate corporate entity so that any fee or damage awards won’t claw back overall winnings.
- pseudolus 8y ago
  This particular case is explicitly non-precedential as is indicated on the top of the first page. The decision was made under Rule 36 of the Rules of Practice of the Court of Appeals for the Federal Circuit which allows the Court to enter a judgment without an opinion. The case might be precedential in the business logic sense in that potential trolls will have to alter their calculus to take into account that companies will no longer roll over and pay token amounts simply to exit litigation. Also complicating their calculus is an earlier decision from the Supreme Court (Octane Fitness, LLC v. Icon Health & Fitness) which effectively made it substantially easier for a prevailing party to recoup their legal fees in patent related matters.
deleted 8y ago
[deleted]
monochromatic 8y ago
edit: I just noticed that the CAFC opinion is designated nonprecedential > The court’s ruling comes in response to a preliminary motion filed by Cloudflare under Section 101 of the U.S. Patent Act. That section defines what sort of things can be patented. Such motions are generally referred to as “Alice” motions because the U.S. Supreme Court held in a 2014 case (Alice Corp. v. CLS Bank Int’l) that a two-part test could be used to determine patent eligibility based on whether something is more than merely an abstract idea or at least creates an inventive use for an abstract principle. The Alice test helps to determine whether something is patentable subject matter or an unpatentable fundamental concept. Judge Chhabria found that Blackbird’s ‘355 patent was too abstract to be patentable subject matter. (https://blog.cloudflare.com/bye-bye-blackbird/ https://blog.cloudflare.com/bye-bye-blackbird/) This ruling was then affirmed by the CAFC. In what way is it non precedential? I sure wouldn't want to be Blackbird trying to assert that patent in a new litigation...
- howard941 8y ago
  Do you have a link to the Fed Circuit's opinion?
  - apendleton 8y ago
    The whole opinion, such as it is, is right there at the bottom of the blog post. It just says "Affirmed."
    - deleted 8y ago
      [deleted]
- apendleton 8y ago
  The patent wasn't revoked. Blackbird can continue to collect from parties it has already sued who settled, and can sue new parties if it so chooses. The courts who hear those cases aren't required to respect the previous judgments -- the appeals court ruling even says "Note: This disposition is nonprecedential" right at the top. And even if courts would potentially find the previous ruling at least persuasive, respondents would still have to undergo significant court costs just to mount a defense, and many will still choose not to do so and instead to settle, which Blackbird knows.
mamurphy 8y ago
Summary Judgment is persuasive precedent. A higher court affirming Summary Judgment is controlling precedent for that circuit and highly persuasive precedent for other circuits. The ruling here is limited and narrow as to the particular patent in question, but it is precedent. Your hopes of being wrong are fulfilled.
- ceejayoz 8y ago
  The ruling's first line is: NOTE: This disposition is nonprecedential.
imglorp 8y ago
Also Blackbird holds at least 73 other patents [1], some notably shitty, with which to sue the next poor sap. The sap doesn't even need to require buttock lift support [2] (I am NOT making this up!), for example, in order to be sued and perhaps pay the extortion fee out of court to be rid of it. The system is broken. 1. https://www.cloudflare.com/blackbirdpatents 2. https://patents.google.com/patent/US7081036
pnw_hazor 8y ago
The patent was invalidated on common/conventional grounds. There is no new precedent here.

maehwasu 8y ago

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

tyingq 8y ago
In this case, the law firm is the patent troll. Two lawyers formerly from firms that used to fight patent trolls. So, I suspect shame isn't going to bother them. "Blackbird combines both a law firm and intellectual property rights holder into a single entity. In doing so, they remove legal fees from their cost structure and can bring lawsuits of potentially dubious merit without having to bear any meaningful cost." (https://blog.cloudflare.com/standing-up-to-a-dangerous-new-breed-of-patent-troll/ https://blog.cloudflare.com/standing-up-to-a-dangerous-new-b...)
- duxup 8y ago
  >In this case, the law firm is the patent troll. That seems more common, as does law firms who operate as bill collectors.
- rc_kas 8y ago
  Ok maybe instead of shame, it just important to document and track their history, in case it useful to future researchers.
- gimmeThaBeet 8y ago
  For a second I thought that that would be an "About Us" on blackbird's site, because the first part makes it seem like a business pitch. Then I thought "why would you advertise that you bring dubious lawsuits?"
crankylinuxuser 8y ago
Is it also appropriate to "call out" attorneys and legal firms that defend defendants accused of unconscionable crimes (think Boston Marathon bomber)? Attorneys are to help their represented either to make whole, or defend against the state. If they are truly acting in an unethical stance, then they need tried by the state board. If they were acting unethically, then perhaps their license should be revoked. But these ethics should apply to all lawyers, and not because they chose an 'unsavory' client.

forgotmypw3 8y ago

>In addition to vigorously opposing this case in court, we created and sponsored Project Jengo to push back against the incentives that empower patent trolls like Blackbird Tech. Now that the case is over, we will be wrapping up Project Jengo and will report back with a summary of the Project’s successes in the near future. I don't understand... Couldn't they expand the project to help others in a similar situation?

rossdavidh 8y ago
I think the idea of the report back is that the knowledge of how to use such a strategy, will be widely disseminated, and that will make other victims of patent trolling more likely to fight than settle.
- WrtCdEvrydy 8y ago
  Improvise. Adapt. Overcome.
  - loeg 8y ago
    This isn't reddit.
    - photoGrant 8y ago
      You're contributing to it being so ;-)
scabarott 8y ago
I didn't understand this too. It read as if they reached a settlement with Blackbird and part of that settlement involved taking down Project Jengo. From the site: "The larger bounty (up to $30,000) will be spread among those submitting substantial prior art which reads on any of the 34 other outstanding Blackbird patents or their 3 in-flight patent applications and could lead to the invalidation of these dubious patents" Any reason why they're wrapping this up if this hasn't yet been achieved? (those patents are still active)

tracker1 8y ago

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

djk44 8y ago
I can see the value but it's largely a question of resources. There are some strong collectives that are working in this space, not sure we have the time to run that as a side job. Plus, PJ is narrowly-focused on this troll, which is why we said from the beginning, it would last as long as the lawsuit was active. In the meantime, we're focusing our community engagement efforts on Project Galileo and Athenian Project.
- tracker1 8y ago
  I understand.. upon reflection, probably best to just support EFF efforts on this front.

djk44 8y ago

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

wills_forward 8y ago
1) How can the broader community help end this sort of nonsense? 2) Do you see any potential for a company to offer patent troll defense as a service and drive costs down, or does it seem too big a problem to productize/scale a solution for?
- djk44 8y ago
  1. It's all about underlying incentives. Short term those will always counsel early settlement, if there's enough awareness and collective action to take the long-term view, then we might be able to push incentives in another direction. 2. Some of the existing collectives combine their IP assets to give each other a license to each other's patents or the benefit of any future settlements, which limits the exposure a bit. Not sure if something like underwriters of patent troll insurance could combine the incentives enough into long-term view to make that worthwhile.
- ehsankia 8y ago
  https://www.theverge.com/2015/7/23/9021191/google-patent-starter-program-free-patents-fights-trolls https://www.theverge.com/2015/7/23/9021191/google-patent-sta...
  - sandov 8y ago
    The same Google that did this: https://arstechnica.com/tech-policy/2018/06/inventor-says-google-is-patenting-work-he-put-in-the-public-domain/ https://arstechnica.com/tech-policy/2018/06/inventor-says-go... :thinking:
    - ehsankia 8y ago
      The reasoning here was that if they didn't patent it, some other bad actor / patent troll would, and that would cause far more problems. Google so far has a record of never using a patently offensively, and only time will tell if this will keep holding true. Google also has a giant shared patent pool that they let other companies use to defend themselves, so this is part of that, alongside the article I shared.

ChuckMcM 8y ago

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

Cronkan 8y ago
They don't get that automatically? If so, that's really shitty if you get sued.

_bxg1 8y ago

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

_bxg1 8y ago

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

yubiox 8y ago
You can threaten to sue anyone for anything basically but you can't threaten to call the cops on them unless they pay you. You can see the actual details spelled out in layman terms in (for example) the California jury instructions for CA PC 518 extortion. https://www.justia.com/criminal/docs/calcrim/1800/1830/ https://www.justia.com/criminal/docs/calcrim/1800/1830/

scabarott 8y ago

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

amelius 8y ago
> I imagine a simple addition to patent laws invalidating a patent if the holder does not commercialize it after a certain period should get rid of NPEs. I suppose there are sneaky ways around this, such as marketing a product that features the patent but is otherwise inadequate. Never underestimate the resourcefulness of patent trolls
- AtHeartEngineer 8y ago
  Yep, you can make one simple flashy thing, say it does X feature, sell it to your spouse and say it's been commercialized
LeifCarrotson 8y ago
It's hard to draw a legal line between a few lawyers with some bad patents and a garage inventor struggling to make his idea profitable. Not because those are hard to differentiate logically, but because one side is all about manipulating the legal system while the other has no knowledge of it nor funds with which to navigate it. Also, the system is supposed to protect the latter from big corporate legal departments that want to steal his idea. It's a hard problem because it's profitable for bad actors to get wrong decisions made.
- djk44 8y ago

aero142 8y ago

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

lifeisstillgood 8y ago
I agree - perhaps we need an anti-Project Jengo where we look for software patents that are worthwhile and enhance the planet. There must be some?
dboreham 8y ago
Algorithms are patentable, if you add ", running on a computer". E.g. map-reduce https://patents.google.com/patent/WO2012135319A1 https://patents.google.com/patent/WO2012135319A1
- mikekchar 8y ago
  I'm not familiar enough with US software patents to really comment intelligently, but my understanding is that machines are patentable. Many machines execute an algorithm. This is inevitable. For example, if you have a process for flash freezing fish and you build a machine to execute that process, then that machine is patentable. The algorithm that the machine executes is an integral part of the machine and therefore part of the patent. Mathematical constructs are not inventions, but discoveries. This is why a mathematical construct can not be patented. You can't patent a method for finding the circumference of a circle because the relationships are not something you construct. It just is. You can discover it, but you can't invent it. My understanding of the "running on a computer" type of argument is that building a machine to do something is an invention -- even if that machine relies on mathematical facts. In fact, all machines rely on physics, and chemistry, etc that can be modelled with these mathematical facts. Building a machine that relies on mathematical facts and executes an algorithm, does not in itself mean that the machine is not an invention. It does not in itself mean that the invention is not of the same class of things that patents were meant to work with. My personal favourite example to think about is PKI type applications. The fact that one way hashes are hard to factor is a discovery, not an invention. The actual algorithms we use in PKI, no matter how much creativity was used in discovering them, are still simply discoveries. We don't create math, we explore it. However, is a machine that uses this math to create a signature that is hard to fake an invention? Is it any less an invention than a machine that uses the laws of physics (which we also don't invent) to fly? Please note that I don't think software patents should exist. However, there are many people who disagree. The first step in getting them to change their mind is to understand why they think the way they do. It's easy to oversimplify the situation and to just imagine that it is bad will and greed that drives your opposition. However, if you don't deal with their reasonable positions, you won't make any progress. The bad guy/good guy analogy feels good, but the world is unfortunately a lot more nuanced than that.

barbegal 8y ago

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

notacoward 8y ago
> There was no need for the Cloudflare lawyers to produce 900 pages of briefs Is that a statement based on empirical evidence, or is it based on how things "should" work? In my dealings with courts, "a few pages and a couple of hours" isn't enough to settle anything whatsoever. If the plaintiff provides 650 pages, that's going to mean a lot of claims and arguments that have to be rebutted no matter how ridiculous they are. Right or wrong, that's the way it is.
dctoedt 8y ago
Um ... lawyer and former litigator here; I've done patent-case appeals at the Federal Circuit in a prior life: 1. Especially thanks to the Supreme Court's utter trashing of the analytical method (in Alice and other cases), it's not all that simple to move for dismissal on the pleadings. 2. I've looked at the patent and its claims; with a different trial judge and/or a different three-judge panel at the court of appeals, the outcome could easily have been different. CloudFlare's lawyers must have done a pretty good job, because getting a peremptory affirmance in the court of appeals under "Rule 36" [0] is a non-trivial achievement. [0] http://www.cafc.uscourts.gov/sites/default/files/rules-of-practice/MASTERFederalCircuitRulesOfPractice-6.6.16.pdf#page=136 http://www.cafc.uscourts.gov/sites/default/files/rules-of-pr...
- djk44 8y ago
  See ccrglaw.com -- Great lawyers, they did a great job for us.

sam_goody 8y ago

The current patent system helps the corporations at the cost of inventors (who will inevitably be bankrupted by suing them. Especially as with a small change a new patent can be issued and the inventor counter-sued * ) Hard to do anything about that, as the lobbyists and the common folk both want patents. Perhaps a solution is to limit the number of patents an individual can hold to 100, and a corporation to 100 + 10 per employee (or some similar structure). An exception could be made if the patents would be defensive [a not-yet-existing class of patent that prevents you from being sued but doesn't let you sue]. This would be perceived as anti-big-corp, so has a chance of working for the politician pushing it. It would actually help the inventor, as it would keep the trolls out, and keep the mega corps from just patenting everything under the sun and suing right and left to prevent any startup from entering their area. It would also put a certain amount of pressure to limit the size and power of the biggest corporations (at the least encouraging them to spin off subsidiaries and employ more.) And lastly, it would cut down on the number of patents being filed daily, so that the patent authority could have time to actually review them. * I have an invention that could improve the world. The patent attorney told me that if I brought it to market, I could expect to find a Chinese knockoff with weeks, and within months I would likely be fighting just to keep production, as "improved" versions will be patented by U.S. corporations (he told me which ones even). He said it makes sense to patent anyways, and if another small time inventor doesn't see my patent and brings it to market, I could sue them. A path he assured me is less risky and possibly more lucrative that being the producer. You cannot even imagine how many items never go to market because patents. An even better system would be to simply use all the money that now goes into patents to provide grants for inventors. That would actually help me get to market (at all!) and would actually improve the world instead of hurting it.

blunte 8y ago

I wish it were possible to pursue all the people involved on the troll side and burn them to the ground (financially and legally speaking). People like that are the ticks of humanity, putting a drag on human productivity and progress (for their own gain). What's worse, and this also applies to many groups who affect laws which benefit them at the cost of most everyone else, is that their gains are small compared to the overall cost to society. In many cases it would be more efficient just to get everyone to agree to each pay $1 to the leeches and move on. Still wrong, but less wasteful.

mapcars 8y ago

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

SergeyDruid 8y ago

It reminds me of Newegg patent troll case!