8 ms·

Hey everyone, Doug Kramer, Cloudflare GC, here. Happy to answer any questions as we close out this chapter.

plasma 7y ago
Hey Doug, All in did cloudflare have to spend a modest amount of its money to retaliate in this way? I think public shaming of the layers involved by name would also be appropriate - bullies often don’t like being called out. Would be keen to hear whether the ethics inquiry had any effect.
- kramerdj 7y ago
  As we described a bit in a previous post at the end of the litigation -- https://blog.cloudflare.com/winning-the-blackbird-battle/ https://blog.cloudflare.com/winning-the-blackbird-battle/ -- in addition to the money we paid for the crowdsourced bounty, we also had to pay considerably to litigate the case. Even though we won the underlying litigation as quickly and convincingly as possible, we still spent more in legal fees than Blackbird might have been able to recover in damages after trial. That's why settling / licensing will always make more short-term economic sense, and keep trolls alive.
  - nicoburns 7y ago
    Shouldn't blackbird have to cover your legal fees if they lose?
    - alasdair_ 7y ago
      Not in the USA, in general. That’s the core issue - it’s asymmetric warfare.
      - nicoburns 7y ago
        Huh. I wonder if this is a significant factor in the US being so litigious in general.
        manquer 7y ago
        Unfortunately that kind of punitive punishment will deter genuine cases from be being filed for fear of penalties . Also it is hard to measure the actual minimum cost required. Cloudflare might have retained a top class firm to fight this, perhaps they could have been represented by a very affordable one person shop as well. What cost should the court award ? Former means cases against people and companies with resources will be very difficult for fear of losing, later does not solve the problem of economic incentives
        mschuster91 7y ago
        > Unfortunately that kind of punitive punishment will deter genuine cases from be being filed for fear of penalties . Legal insurance ("Rechtsschutzversicherung" in German) helps here. > What cost should the court award ? In Germany courts can order that one party has to cover all associated costs or that the cost be split / limited to "reasonable" amounts - this ensures that everyone has viable access to legal defense.
        nicoburns 7y ago
        If it stops people suing people for having a loose paving slab on their garden path, then it's probably a good tradeoff? (albeit not one without downsides).
      - XCSme 7y ago
        Any reason why is that? It doesn't make sense that you have to pay for defending yourself after the judge said you were innocent. You can just sue for nothing whoever you don't like and has less money than you.
        whamlastxmas 7y ago
        This happens all the time in the US. I've personal made life decisions based on the the possibility I was going to piss off the wrong wealthy person who'd sue me without basis just to bankrupt me
  - davidhyde 7y ago
    Thanks!
breck 7y ago
Thank you! Heroic work. Any thoughts on how we can expand this effort? My thinking is we need to get rid of Intellectual Monopoly laws in general. I think an intermediate transition to some type of “bonus” structure for patents instead of Monopolies might work, if we need a way to ease the transition, but everywhere I look IM laws cause more harm than good (unless you are in the select group that makes the inflated sums).
- kramerdj 7y ago
  This was our attempt at contributing to a solution, not sure it solves the whole problem. Patents do serve a purpose, so you don't want to throw out the baby, it's as much an easily-abusable litigation system. Enough random behavior and long-term strategic behavior may make trolls think twice before setting up shop if it's not an easy thing.
  - FpUser 7y ago
    Patents in general yes (assuming patent office really validates patents instead of rubber stamping ones from big companies). Software patents, business methods and other fishy stuff - I would pretty much love those eliminated completely.
- erklik 7y ago
  I'd say there needs to be an easier/quicker way to fight the patent trolls in the court of law. The fees for the fight are exorbitant, leading the parties to instead make a settlement and the trolls "winning"
jaysh 7y ago
Thank you so much for your incredible public service. I wish I could offer more than words. Lots of organisations discuss their values, but when push comes to shove, I don't believe many would even consider, let alone commit resources to, something that has such positive externalities.
ksherlock 7y ago
Will you file for reimbursement of attorney fees? (Octane Fitness, LLC v. ICON Health & Fitness, Inc.)
- kramerdj 7y ago
  We don't plan to do so. I'm not immediately familiar with the case, you cite but it was our understanding from counsel that was a very unlikely outcome for us, which isn't surprising as attorneys fees are VERY difficult to recover in the US system.
  - ksherlock 7y ago
    It's a 2014 Supreme court case that (in theory?) made it easier to recover attorney fees from patent trolls. Specifically, this phrase: "The court in exceptional cases may award reasonable attorney fees to the prevailing party." (Section 285 of the Patent Act.) They loosened up what is "exceptional".
75dvtwin 7y ago
Thank you for your work. One less patent troll, one small step towards a better economy. Two questions: a) what would you recommend, if anything, around personal activism to help to advance the system of patent laws (in US markets) It seems that you had received as help, anonymous donations, but it means there is an opportunity for more public awareness/participation in some form. b) for a small company with little revenue, what means of protections to they have? in case they get attacked by these types of racketeers (not just for money, but as revenge, or anti-competition tactic) For example, are there effective (aggressive, and not just waiting) insurance pools or other similar collectives to participate in ?
egdod 7y ago
Can you say more about the complaints you made to the bar on their attorneys? Curious what the grounds were.
- eastdakota 7y ago
  Details about the ethics complaints are in the original Project Jengo blog post: 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... See the section titled: "Step 4 — File complaints against Blackbird attorneys by bar association disciplinary counsel in Massachusetts and Illinois"
tgsovlerkhgsel 7y ago
Were you able to make Blackbird or the individuals involved in it pay your legal costs? If not, did you simply not pursue it or is it still in progress?
davidhyde 7y ago
Hi Doug, thanks for the write up and community engagement. Cloudflare has done the community a great service here. > the federal litigation process still lasted nearly two years, involved combined legal filings of more than 1,500 pages, and ran up considerable legal expenses With such considerable prior art evidence in your favor, can you offer any advice on lowering the cost of defending yourself?
goldenkey 7y ago
Just wanted to thank you and CloudFare for your work in fighting these rentseeking patent trolls. Why some people choose to be drains on the global GDP by stifling rather than creating still baffles me. Maybe you can shed some light on your experience as a lawyer and how one might turn to "bad law."
askvictor 7y ago
Do you worry that an unintended consequence of action like this will be for patent trolls to completely shift away from targetting companies with deep pockets for risk of blow-back such as this, and to exclusively focus on mom-and-pop-shops/startups?
- ouiterestos 7y ago
  I wonder if it would be feasible to have some type of patent troll defense SaaS that could help defend you? It would almost be like a security company, where you have a sign, “Protected by AntiTroll.”
  - rubatuga 7y ago
    Kind of like how doctors have malpractice insurance.
- deleted 7y ago
  [deleted]
pgeorgi 7y ago
With a patent that the court ruled as invalid in just 2 pages, and the appeals court confirmed in just three days: Shouldn't the USPTO get at least a slap on the wrist as well? It looks rather obvious that they messed up by awarding that patent in the first place. Any options towards that end?

Hey Doug, All in did cloudflare have to spend a modest amount of its money to retaliate in this way? I think public shaming of the layers involved by name would also be appropriate - bullies often don’t like being called out. Would be keen to hear whether the ethics inquiry had any effect.

kramerdj 7y ago
As we described a bit in a previous post at the end of the litigation -- https://blog.cloudflare.com/winning-the-blackbird-battle/ https://blog.cloudflare.com/winning-the-blackbird-battle/ -- in addition to the money we paid for the crowdsourced bounty, we also had to pay considerably to litigate the case. Even though we won the underlying litigation as quickly and convincingly as possible, we still spent more in legal fees than Blackbird might have been able to recover in damages after trial. That's why settling / licensing will always make more short-term economic sense, and keep trolls alive.
- nicoburns 7y ago
  Shouldn't blackbird have to cover your legal fees if they lose?
  - alasdair_ 7y ago
    Not in the USA, in general. That’s the core issue - it’s asymmetric warfare.
    - nicoburns 7y ago
      Huh. I wonder if this is a significant factor in the US being so litigious in general.
      - manquer 7y ago
        Unfortunately that kind of punitive punishment will deter genuine cases from be being filed for fear of penalties . Also it is hard to measure the actual minimum cost required. Cloudflare might have retained a top class firm to fight this, perhaps they could have been represented by a very affordable one person shop as well. What cost should the court award ? Former means cases against people and companies with resources will be very difficult for fear of losing, later does not solve the problem of economic incentives
        mschuster91 7y ago
        > Unfortunately that kind of punitive punishment will deter genuine cases from be being filed for fear of penalties . Legal insurance ("Rechtsschutzversicherung" in German) helps here. > What cost should the court award ? In Germany courts can order that one party has to cover all associated costs or that the cost be split / limited to "reasonable" amounts - this ensures that everyone has viable access to legal defense.
        nicoburns 7y ago
        If it stops people suing people for having a loose paving slab on their garden path, then it's probably a good tradeoff? (albeit not one without downsides).
    - XCSme 7y ago
      Any reason why is that? It doesn't make sense that you have to pay for defending yourself after the judge said you were innocent. You can just sue for nothing whoever you don't like and has less money than you.
      - whamlastxmas 7y ago
        This happens all the time in the US. I've personal made life decisions based on the the possibility I was going to piss off the wrong wealthy person who'd sue me without basis just to bankrupt me
- davidhyde 7y ago
  Thanks!

breck 7y ago

Thank you! Heroic work. Any thoughts on how we can expand this effort? My thinking is we need to get rid of Intellectual Monopoly laws in general. I think an intermediate transition to some type of “bonus” structure for patents instead of Monopolies might work, if we need a way to ease the transition, but everywhere I look IM laws cause more harm than good (unless you are in the select group that makes the inflated sums).

kramerdj 7y ago
This was our attempt at contributing to a solution, not sure it solves the whole problem. Patents do serve a purpose, so you don't want to throw out the baby, it's as much an easily-abusable litigation system. Enough random behavior and long-term strategic behavior may make trolls think twice before setting up shop if it's not an easy thing.
- FpUser 7y ago
  Patents in general yes (assuming patent office really validates patents instead of rubber stamping ones from big companies). Software patents, business methods and other fishy stuff - I would pretty much love those eliminated completely.
erklik 7y ago
I'd say there needs to be an easier/quicker way to fight the patent trolls in the court of law. The fees for the fight are exorbitant, leading the parties to instead make a settlement and the trolls "winning"

jaysh 7y ago

Thank you so much for your incredible public service. I wish I could offer more than words. Lots of organisations discuss their values, but when push comes to shove, I don't believe many would even consider, let alone commit resources to, something that has such positive externalities.

ksherlock 7y ago

Will you file for reimbursement of attorney fees? (Octane Fitness, LLC v. ICON Health & Fitness, Inc.)

kramerdj 7y ago
We don't plan to do so. I'm not immediately familiar with the case, you cite but it was our understanding from counsel that was a very unlikely outcome for us, which isn't surprising as attorneys fees are VERY difficult to recover in the US system.
- ksherlock 7y ago
  It's a 2014 Supreme court case that (in theory?) made it easier to recover attorney fees from patent trolls. Specifically, this phrase: "The court in exceptional cases may award reasonable attorney fees to the prevailing party." (Section 285 of the Patent Act.) They loosened up what is "exceptional".

75dvtwin 7y ago

Thank you for your work. One less patent troll, one small step towards a better economy. Two questions: a) what would you recommend, if anything, around personal activism to help to advance the system of patent laws (in US markets) It seems that you had received as help, anonymous donations, but it means there is an opportunity for more public awareness/participation in some form. b) for a small company with little revenue, what means of protections to they have? in case they get attacked by these types of racketeers (not just for money, but as revenge, or anti-competition tactic) For example, are there effective (aggressive, and not just waiting) insurance pools or other similar collectives to participate in ?

egdod 7y ago

Can you say more about the complaints you made to the bar on their attorneys? Curious what the grounds were.

eastdakota 7y ago
Details about the ethics complaints are in the original Project Jengo blog post: 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... See the section titled: "Step 4 — File complaints against Blackbird attorneys by bar association disciplinary counsel in Massachusetts and Illinois"

tgsovlerkhgsel 7y ago

Were you able to make Blackbird or the individuals involved in it pay your legal costs? If not, did you simply not pursue it or is it still in progress?

davidhyde 7y ago

Hi Doug, thanks for the write up and community engagement. Cloudflare has done the community a great service here. > the federal litigation process still lasted nearly two years, involved combined legal filings of more than 1,500 pages, and ran up considerable legal expenses With such considerable prior art evidence in your favor, can you offer any advice on lowering the cost of defending yourself?

goldenkey 7y ago

Just wanted to thank you and CloudFare for your work in fighting these rentseeking patent trolls. Why some people choose to be drains on the global GDP by stifling rather than creating still baffles me. Maybe you can shed some light on your experience as a lawyer and how one might turn to "bad law."

askvictor 7y ago

Do you worry that an unintended consequence of action like this will be for patent trolls to completely shift away from targetting companies with deep pockets for risk of blow-back such as this, and to exclusively focus on mom-and-pop-shops/startups?

ouiterestos 7y ago
I wonder if it would be feasible to have some type of patent troll defense SaaS that could help defend you? It would almost be like a security company, where you have a sign, “Protected by AntiTroll.”
- rubatuga 7y ago
  Kind of like how doctors have malpractice insurance.
deleted 7y ago
[deleted]

pgeorgi 7y ago

With a patent that the court ruled as invalid in just 2 pages, and the appeals court confirmed in just three days: Shouldn't the USPTO get at least a slap on the wrist as well? It looks rather obvious that they messed up by awarding that patent in the first place. Any options towards that end?