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Cloudflare defeats patent troll Sable at trial
- T3RMINATED 3y ago[dead]
- rvnx 3y agoAt the end of the day, this is a deep legislation issue, patents should not exist at all. They are supposed to promote innovation, in practice, it's more about protecting guys who sitting and waiting for passive cash. Once we give exclusive rights to all AI stuff to Nvidia, is the world going to be a better place ? What would be with ChatGPT if Google actually had enforced (or enforces) patents on Transformers. Is the world better since we have to pay a license to use the word "Smiley" and not "Emoji" ? (a >500M USD per year business btw).
- anonymouskimmer 3y ago> Is the world better since we have to pay a license to use the word "Smiley" and not "Emoji" ? (a >500M USD per year business btw). If this is true it would fall under copyright or trademark protections, not patents.
- rvnx 3y agoYou are absolutely right, just a side & +/- related topic that made me upset and wanted to rant about :)
- huijzer 3y agoI'm not so convinced of your argument yet. You point out some cases in which granting a patent will lead to reduced innovation, which I agree is bad. But how about innovations which might never have happened without the patent system in place? I agree with you that patents a probably a net negative for innovation, but we need to come up with a stronger argument than monopolies are bad.
- spongebobstoes 3y agoCan you provide some recent examples of where patents likely played a positive role in innovation?
- anonymouskimmer 3y agoFifty years ago they paid for Xerox's PARC where WYSIWYG and GUI interfaces were first developed targeting a mass audience.
- nottorp 3y agoIirc Apple paid (in Apple stock perhaps) but Microsoft didn't :)
- sophacles 3y agoRight, I was so glad when those patents expired because the Xerox monopoly on my computer usage was annoying.
- anonymouskimmer 3y agoSpecifically the Laser printer patents paid for PARC, and then some. As mentioned a few days ago by another commenter.
- kalleboo 3y agoBy that logic we need to bring back a telephone monopoly since Bell Labs brought us so much innovation paid for by rip-off calling fees.
- anonymouskimmer 3y agoBy that logic if anything bad has ever resulted in anything good we have to keep doing the bad thing in magical hopes that it will keep causing good to happen.
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- seniorThrowaway 3y agoThere is a general problem with excessive rent seeking in our entire economy and society. But I don't think having zero patent protection is the answer. Like most problems with society, there is no easy answer, just a continual fight against corruption, rent-seeking, nepotism, collusion, price fixing and all the other crappy human behaviors.
- zackmorris 3y agoI second the abolishment of patents. The reasons people are for/against patents are political. A rightist view would be that patents allow first-to-the-finish-line inventors to reap financial awards that lead to success and freedom. A leftist view would be that the opportunity cost of patents is an increased cost (analogous to a tax) on everyone else in the form of licensing fees and barred entry to markets as improvements in science and technology make patents more obvious than innovative. If we don't reform the system by at least reducing patent durations to something reasonable like 3-5 years, then that will create an incentive to operate outside the market. People will just use open source and 3D printing to build their own stuff, rather than purchasing it from someone else. In other words, more patents = bigger black market and smaller market/profits for those operating legally. It's not a good look anymore to favor policies which encourage corruption. Other examples of unintended consequences include the War on Drugs, the Citizens United decision, NAFTA, etc etc etc. We know better now and we can do better, rather than letting special interests dictate the manner in which we do business.
- TimTheTinker 3y ago> A rightist view would be that patents allow first-to-the-finish-line inventors to reap financial awards that lead to success and freedom. A leftist view would be that the opportunity cost of patents is an increased cost Patents as originally formulated were to incentivize public disclosure of new techniques for building things. Portland cement is a great example: the company could have kept the formula secret and profited significantly, but instead a patent was filed, they got a short monopoly, and for over a century we have enjoyed the benefits of a publicly known formula. Pure ideas (like math and physics) were considered non-patentable. If we can reform patents to disallow patenting software (and all other pure "ideas" with no physical realization), I think that will continue to help encourage public disclosure of helpful techniques (like Portland cement) without all the stupid baggage of software patents.
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- adrr 3y agoSo you spend billions($2.5 billion being average) inventing a new drug and anyone should be allowed to copy and sell it? That would foster innovation and not kill pharmaceutical market?
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- nottorp 3y ago2.3 billion of that being marketing expenses?
- ahofmann 3y agoThis is a very unhelpful pseudo question, that adds nothing to the conversation but can easily derail it. Do you have at least a source for that "claim"?
- nottorp 3y agoEh, I'm hyperbolizing of course. But I remember seeing statements here and there that at least half the "cost" of a new drug is marketing. Commercials, paying for 'conferences' for doctors etc. Not going to search for citations, I'm sure you have something ready to prove me wrong and show how 95% of the cost is blood, sweat and tears.
- jandrewrogers 3y agoThe marketing is critical because they have a limited window of time within which to recoup most of the development costs. If adoption ramps up too slowly, the company will not make enough money to offset the investment. Marketing improves time to revenue for a product where exclusivity will be short-lived. If they didn't spend on marketing, the R&D wouldn't exist, so it is kind of weird to act like this is a waste of money. It is like saying solar panels are bad for the climate because manufacturing them requires CO2 production. It shouldn't need to be said that no one would do marketing if it didn't more than pay for itself and offset the costs of the thing being marketed.
- tomschlick 3y agoSoftware patents should not exist.
- Solvency 3y agoOk I'll bite, why stop at software?
- nness 3y agoPatents fundamentally operate to allow the owner of protection to extract value from research and development investment. If you cannot protect your research and development, then competitor may extend upon your invention without the necessary capital or time investment — effectively making any kind of innovation risky and unattractive to business. There is no model where abolishing patents still grants protection for R&D. The complaint is that software patents have been awarded and interpreted far too broadly, and coupled with the relatively low cost of R&D for software, have begun to stymied innovation in the same way patents intended to prevent.
- mnau 3y agoInventor profits by being ahead of competition. VisiCalc (first spreadsheet) was a killer app. But they didn't innovate and were taken over by Lotus 1-2-3 four years later. Lotus was great, graphs and all. Same thing happened to the Lotus, Excel was just better. Lotus didn't innovate (e.g. IBM had first ever pivot tables and they made separate spreadsheet program for it instead off improving Lotus).
- nness 3y agoInventors only profit if and when they release — Patents allow you to cover the cost of research and development even if a profitable product does not materialise or is not profitable at the time of release. R&D is essential for economic growth, so the promise/higher-chance of a successful return at some point in the future, I think, this is a reasonable trade-off.
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- djbusby 3y agoLots of patent hate in the first few comments. If we take the position that an inventor should be able to try and get profit from their invention how can we protect that without patent system?
- anonzzzies 3y ago> If we take the position that an inventor But most software patents aren't inventions; they're just brain farts with money behind them. They might not be trolls, but they went to the toilet, had some random idea I had 20000 times in my life already, but they patent it genuinely thinking it's anything original. There are many none trolls, like the famous Amazon one-click buy one; everyone in web dev invented that in the 90s by themselves; they patented it. How is it worth protecting? If you did invent and put the time and effort, how about selling your products; if someone else does it better, that's life. Especially in software; the pain is in the development and finishing, not the invention. The idea is absolutely worthless, outside this broken patent system.
- rockbruno 3y ago>had some random idea I had 20000 times in my life already, Aren't patent systems already supposed to reject "inventions" that are common sense? Perhaps the problem is not the system itself but rather the humans who are approving these.
- acdha 3y agoThat’s definitely part of it: in the 90s you saw a ton of “on the internet” patents which looked a lot like the examiners not having had enough experience to say that something was either an obvious adaptation of an existing concept to the web or that the two systems had almost nothing in common other than using a computer (I remember a patent troll hitting a customer with a 1980s patent for cash registers connected to a minicomputer using a phone line, claiming it covered their web store). A younger generation of patent clerks hired with more experience seems to have helped there. The other problem is funding: look at the patent examiner listings right now and think about how many people they’re going to be able to get with the federal pay scale having been prevented from keeping pace with the market for years: https://www.usajobs.gov/Search/Results?l=&l=&a=CM56&hp=public&k=patent%20examiner&p=1 https://www.usajobs.gov/Search/Results?l=&l=&a=CM56&hp=publi...
- Laaas 3y agoWhat would be required to get a court to order Sable pay the legal fees Cloudflare incurred?
- delfinom 3y agoCourts only order that in cases the lawsuit is in bad faith by one party.
- ceejayoz 3y agoQuite a bit. https://en.wikipedia.org/wiki/American_rule_(attorney%27s_fees) https://en.wikipedia.org/wiki/American_rule_(attorney%27s_fe... Versus https://en.wikipedia.org/wiki/English_rule_(attorney%27s_fees) https://en.wikipedia.org/wiki/English_rule_(attorney%27s_fee... in much of the rest of the world.
- jotaen 3y agoIs this still true, considering how the Supreme Court has decided a similar case against patent trolls[1][2] in the past? [1]: https://en.wikipedia.org/wiki/Octane_Fitness,_LLC_v._ICON_Health_%26_Fitness,_Inc https://en.wikipedia.org/wiki/Octane_Fitness,_LLC_v._ICON_He.... [2]: https://www.forbes.com/sites/danielfisher/2014/04/29/patent-trolls-face-higher-risks-as-supreme-court-loosens-fee-shifting-rule/ https://www.forbes.com/sites/danielfisher/2014/04/29/patent-...
- ceejayoz 3y agoAs the second link notes, that helps only in "the most egregious cases of misconduct".
- Laaas 3y agoIn the opinion it says that it merely has to be "exceptional", I would think Cloudflare has a good chance at winning their case. They ought to do so, if only to discourage patent trolls. Link: https://web.archive.org/web/20140429231129/http://www.supremecourt.gov/opinions/13pdf/12-1184_gdhl.pdf https://web.archive.org/web/20140429231129/http://www.suprem... Relevant part on page 10.
- duped 3y agoThere needs to be a "use it or lose it" doctrine/law around technological IP. I get all the arguments around creating a market for the patent rights, but it just leads to these bottom feeders creating no value and increasing costs for the industry and consumers.
- lukan 3y agoThere are research companies who only do research and get money by licencing their patents. I mean, I really would like to live in a world without patents, but currently those companies do provide value, but cannot exist, without guarding their IP. Yet they would cease to exist, with your proposal.
- anonymouskimmer 3y agoGreat point. And then if one of those companies sold a patent that wasn't immediately licensable to an IP firm for an immediate infusion of funds should the IP firm be considered a patent troll?
- lukan 3y agoMaybe the patent system could work, without the possibility of selling patents at all? Have not thought it out, but I know musicians also seldom profit of selling their IP to the major labels. But they are pushed into it.
- anonymouskimmer 3y agoBased on the text of the IP clause of the US Constitution I have wondered whether selling or licensing of IP (or even assigning it to a corporation) is technically allowable. https://constitution.congress.gov/browse/article-1/section-8/clause-8/ https://constitution.congress.gov/browse/article-1/section-8... : To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; "Exclusive Right" means exclusive right. And I don't think the definition has changed much since the US Constitution was written. https://www.etymonline.com/word/exclusive https://www.etymonline.com/word/exclusive I think it must at least be licensable, or authors couldn't sell copies of their works. But whether the IP rights can be sold is another question.
- fuhrtf 3y agoCloudflare is like Google early days. They could spend resources on things for the good of the all. In this case they’re spending millions when they could have settled for much cheaper. Thanks Cloudflare.
- hsuduebc2 3y agoHope they wouldn't end like google. But you are right. Thank you Cloudflare.
- toomuchtodo 3y agoMay their future noble side quests be successful.
- aftbit 3y agoYou either die a hero or you live long enough to become a villain.
- spaceguillotine 3y ago[flagged]
- hsuduebc2 3y agoYou got a point. Yesterday this post which was trending on hacker news mentioned that cloudflare was defending not revealing identity of people at court that were stalking and literally destroying someones live with swatting. I wouldn't say they are soulles corporation like google. Their attitude is somehow problematic yet admirable. https://www.independent.co.uk/news/world/americas/crime/swatting-nikki-haley-trump-fbi-stalkers-b2494097.html https://www.independent.co.uk/news/world/americas/crime/swat...
- Exoristos 3y agoSince when were internet companies part of law enforcement?
- jwr 3y agoWorth mentioning: Newegg is another company that doesn't blink and goes after patent trolls with a vengeance, at least they used to: https://www.newegg.com/insider/newegg-vs-patent-trolls-when-we-win-you-win/ https://www.newegg.com/insider/newegg-vs-patent-trolls-when-...
- adabyron 3y agoI don't believe they still do this & not sure their culture is the same. They were purchased by a company based out of China years ago. Lee Cheng I believe is responsible for a lot of that effort. He no longer works there.
- fargle 3y agoAwesome job! Thank you cloudflare. maybe this is the path to kill the trolls. tech companies could fund an insurance-like mutual scheme to defend instead of pay off the trolls and then drive them out of business. it can also research and invalidate their ridiculous patents.
- hsuduebc2 3y agoSomehow Sable reminds me of a wart. A big ugly wart with a few hairs and just as useless. It's not much of a problem but you would be better without it.
- kloch 3y agoWasn't one of the key purposes of Patents to catalog inventions (not just to encourage their creation)? Today we have Wikipedia and other free open databases for that.
- schmichael 3y ago> One of our outstanding engineers described what it’s like to create a new product This is a good reminder to enthusiastically help out your legal team if your company is the target of trolls! I had the opportunity to do it once. Our legal team was helpful, patient, and curious. The work was pretty annoying because you have to try to help them work out whether some bizarrely worded unrelated thing could possibly be construed to be part of our product. In our case the troll went away as soon as we made it clear we were serious about taking it to court. I cannot tell you how thankful I am for Cloudflare taking it as far as they can. The cost and risk must be considerable to them.
- drcongo 3y agoThis was a great write-up and getting a win like that in West Texas is no mean feat. Thanks for fighting for it Cloudflare.
- Havoc 3y agoDoesn’t this just mean trolls will sue everyone except CF going forward? Seems like a valiant stance but still short of what is needed something industry wide - something to invalidates this “business model” entirely
- withinboredom 3y agoIf you don’t enforce a patent as soon as you become aware of it, it becomes much harder to sue (similar to trademark I believe). I could be wrong, IANAL
- ark4579 3y ago@CloduFlare Sell Movie rights to this story to cover legal fees please! That would be so funny.
- hnburnsy 3y ago>The patents relied on by Sable were filed around the turn of the century, and they addressed the hardware-based router technology of the day. At first I was wondering what routers existed back in 1900, then realized it was not that turn of the century. I think this is the first time I have see 'turn of the century' refer to 1999->2000. Chicago Manual of Style has some good usage suggestions on this... https://www.chicagomanualofstyle.org/qanda/data/faq/topics/Usage/faq0076.html https://www.chicagomanualofstyle.org/qanda/data/faq/topics/U... >A: Instead, write “at the beginning of the twentieth century,” or “at the end of the nineteenth century,” or “in the years around 1900.” “The turn of the century” is useful only when the context makes it obvious which turn you’re talking about. Of course when talking routers I guess the context was clear.
- saintfire 3y agoFWIW I also defaulted to 1900 and think mentioning the millennium is far less ambiguous than the century.
- patrickhogan1 3y agoThis is great. It’s very expensive to take these cases to trial. Cloudflare could have just settled and spent less.
- AlbertCory 3y agothis is an excellent summary of how the system works. Every month HN has a thread like this, and every month the usual suspects rant about how patents are fucked up, and there needs to be this, that, or the other. And nothing changes. Ask your local candidates for Congress if they'll support removing patentability for software. That's how you solve this problem.
- ronsor 3y agoThey won't. The reason patents (and copyright) have gotten so bad is a mixture of corrupt lobbying activity and a quagmire of questionable international treaties.
- AlbertCory 3y agoPolitics happen. Things that were previously unthinkable suddenly become thinkable. It only seems "suddenly" because all the behind-the-scenes activity was going on when no one was looking.
- baobabKoodaa 3y ago> Ask your local candidates for Congress if they'll support removing patentability for software. That's how you solve this problem. That's not how any of this works. You don't think some people have already "asked their local candidates for Congress" about this? Surely you have personally done that? If you have, then how come the problem still exists? Clearly your action of "asking your local candidate for Congress" did not solve the problem...
- AlbertCory 3y ago> You don't think some people have already "asked their local candidates for Congress" about this? Actually, no, I don't think they have. Judging by the lack of ANY bills in Congress, even bills that get shitcanned by the leadership -- no, no one has. I was going to quote the rest of your post, but it's all ignorant. I know how the lobbying in Congress goes; I personally helped hire one of Google's DC political representatives. Do you know anything? The way it goes is, the big pharma companies block any patent reforms. The way to get them out of the picture is to remove software from the patent system. As for "Clearly your action of "asking your local candidate for Congress" did not solve the problem" you have some warped idea of how representative politics works. You don't just talk to someone and your wishes get magically carried out. Rather it's a sustained struggle where the enemy gets to have their say, too.
- shmerl 3y agoIt should go beyond invalidating patents. Patent abusers should be persecuted for racketeering. Because it's exactly what they are doing.
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- creeble 3y agoNo mention of Cloudflare’s own large portfolio of software patents. Wonder when they’ll start enforcing their patent on CNAME flattening, for example: https://patents.justia.com/patent/11159479 https://patents.justia.com/patent/11159479 Edit; clarity
- rs_rs_rs_rs_rs 3y agoWhy should there be a mention about their patents?
- creeble 3y agoSo that one can begin to judge how duplicitous their claims in defence of another's 'invalid' patent my be.
- patmcc 3y agoIf Cloudflare starts trying to sue or shake down folks with their patents, this will be a very valid point. Until then it's a little silly; everybody holds patents for (at least) defensive reasons.
- MetaWhirledPeas 3y agoExactly. As long as that's how the game is played you must play it or you will be sued out of existence.
- creeble 3y agoBut that’s generally where the trolls get their patents from - what were once large companies (like, in Cloudflare’s recent case, Caspian Networks). My point (if any) is that while we pat Cloudflare on the back for “taking down a troll”, they are complicit (as are many companies these days) in assisting the creation of future trolls who will mine their own, more general, perhaps “obvious to someone familiar with the art”, patents like CNAME flattening.
- zoobab 3y ago"stop the trolls through prior art" Use Alice instead. Using prior art is a waste of time.
- udev4096 3y agoReminds me of the patent troll from Silicon Valley
- jokoon 3y agoImagine I'm a small software company, and I can't fight a patent troll, and I don't want to pay them or go bankrupt in legal costs. Can't I short-circuit that by just selling services elsewhere? Aren't there companies that just refuse to abide or negotiate with patent trolls, out of spite, what happens then? Can a patent troll shut down a company? At some point, wouldn't that make the news? What are the risks? What allows patent trolls to have legitimacy? I can understand that it's mostly a scam operation to extort money to those who want them to go away, but that can't always work. I've heard it's mostly a few courts in Texas or elsewhere. Isn't it possible to just not interact with the states where those patent trolls are?
- yashap 3y agoNice to see Cloudflare fighting the good fight, but patent trolls aren’t the only issue with software patents. A major issue that people talk about way less is well funded/large companies getting bullshit patents, and using them to sue their small startup competitors into the ground. It doesn’t even matter if they win - when a company with billions in the bank sues a company with millions in the bank, the small company is basically just screwed no matter what because they can’t afford the legal fees. It’s a cheap way for big, bloated, slow moving companies to eliminate fast moving, lean, disruptive competition. A major source of this problem IMO is the granting of bullshit patents in the first place - patents that should never have been granted because they’re obvious and/or there was prior art. Patent clerks aren’t actually subject matter experts in the field, and there’s little incentive for them to deny bullshit patents. They maybe deny them once or twice, but dedicated companies just keep applying and eventually get them granted, because the applicant has a major incentive to get the bullshit patent, and the patent office has only minor incentives to deny bullshit patents. I think these incentives need to be changed - for example, if company A sues company B over patent C, company B spends $10 million on their defence, and wins with the patent being deemed invalid, I think company B should get MAJOR financial rewards from BOTH company A and the patent office, on the order of 10x+ what they spent on their defence. If granting a bullshit patent was a $100 mil mistake, patent offices would be WAY more careful with the patents they grant, and applying for patents would be WAY more expensive, and those are both good things! The right incentives could keep the good parts of the patent system while eliminating the (currently pretty massive, out of control) downsides. Patents are currently a mediocre idea implemented incredibly poorly.
- joshuaissac 3y agoI think this is the main problem, rather than companies owning patents they do not implement, and suing the ones that do without a licence. There are so many bogus patents being granted. Prior art search done by patent clerks, from what I have read, can just be searching existing patents. So if something was invented long ago but never patented, then that might not even be caught in a search, even if there are many web pages or academic papers that describe that prior art. And like you said, they may not be able to realise that the invention is actually obvious, because they are not subject matter experts. There is another problem where the patent is valid but the defendant's product does not violate it. It is often too expensive for the victim to litigate it in court. Depending on the jurisdiction, the plaintiff may not even have to tell you exactly which patents they are alleging that you have violated, until they sue you. So you cannot even check whether their claim is reasonable. It needs to be easier and cheaper to challenge bad patents and false claims of infringement.
- t43562 3y agoThere's obviously inefficiency in the system - a big cost every time a decision involves lawyers and even more if there are juries. So we should understand that we don't have a way to be perfect and think about where to balance the trade-offs. We want to give people a chance to make money before they are wiped out by those that copy them but I don't think we have an interest in someone "cornering the market" indefinitely. We could reduce their lifetime - that would cut a lot of decisions. We could limit the amount of money a patent is allowed to return based on an estimate of what it cost to create plus a reasonable profit rather like a kickstarter campaign. We could cancel software patents altogether.
- errantmind 3y agoThere is no evidence patents increase innovation. I suggest reading 'The Case Against Patents': https://files.stlouisfed.org/files/htdocs/wp/2012/2012-035.pdf https://files.stlouisfed.org/files/htdocs/wp/2012/2012-035.p...
- thih9 3y ago> the jury went further and found that Sable’s old and broadly-written patent claim was invalid and never should have been granted in the first place–meaning they can no longer assert the claim against anyone else Perhaps people/institutions that grant overly broad patents should be held responsible in a scenario like this?
- Aeolun 3y agoI don’t think it’s possible to hold the patent office responsible for these cases without making it impossible to run it.
- cloogshicer 3y agoSerious question: What if you run a small blog with a newsletter and some troll comes along and sues you - how do you defend yourself? Even if the troll's claims are completely ridiculous, if you don't have a few $100k lying around for legal fees, you might not even have the option of going to trial. What do you do in such a case?
- jackblemming 3y agoYou bend the knee. The legal system exists to serve the rich.
- pjerem 3y agoI’m not in the US so, YMMV, but in France, I subscribed a "legal insurance". It will cover enough fees to at least give you enough insight about what is happening, if you should defend your case, if you are faulty or if you should just ignore the threat. Also, even if our judiciary system isn’t perfect, I doubt you will find a judge that wouldn’t be comprehensive of a random being attacked by a corporation. Especially if there is no obvious malicious intent or personal benefit, you only risk some symbolic fine and the order to stop. So, I would probably ask for judiciary advice and either ignore or comply to the troll.
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- pulse7 3y agoHow can it be, that the US legal system derailed so much that such trolls can exist? A regular person or small business >>can't afford<< to go to trail and is therefore willing to settle... and patent trolls are living on this situation like parasites...
- janpieterz 3y agoIt would be an interesting idea to fund a company (probably best as a non-profit) that takes patent trolls to court selecting cases based on what trolls are suing and where we can find prior art. Troll the trolls.
- rexreed 3y agoPatent trolls are a wart on the tumor that is software patents.
- tharakam 3y agoLove this extract: "Cloudflare’s hard fought victory, the culmination of three years of litigation, is a strong warning to all patent trolls–we will not be intimidated into playing your game." Thank you CloudFlare for doing your part!
- esilverberg2 3y agoOn the basis of prior blog posts written by Cloudflare on this topic, our firm hired Charhon Callahan Robson & Garza PLLC. I can personally recommend Steven Callahan for this sort of patent defense, their work product and results for us have been excellent.
- LuciBb 3y ago[flagged]
- shortsunblack 3y agoIf a patent officer denies a patent, the patentee can resubmit the patent. Then by procedure other patent officer needs to review the application. They do this ad infinitum until they get their patent granted. It's a denial of service attack. The service here being "skilled employees" and the denial being "we annoyed the organization into submission". This is how most ridiculous, say Red Digital Camera's, patents get granted.
- Donaldbendo 3y ago[dead]