As a former patent examiner, I was struck by how low the payout for Project Jengo was. $125,000 for all people submitting prior art? (There were hundreds of submissions, so it's split among many people.) I would like to help out with such things and I think I have the experience to do it well, but even being a GS-7 patent examiner making $75,000 per year is a better deal! That's especially true given that Cloudflare's not only expecting people to find prior art, but to also write the legal arguments about why it reads on Sable's claims.
If they're serious about their prior art bounty program, they're going to need to increase the bounties. Actual patent search firms charge a lot more money, and even lowly paid bureaucrats make a lot more.
Having talked with several of them, most of the people who submit the prior art as part of Project Jengo would do so even if there were no payout. Several winners have actually asked that the payout be donated back to other organizations fighting patent trolls. This isn't intended to be anyone's full time job. It is intended to reward technical people with industry knowledge who may be able to help surface prior art and are as sick of patent trolls as we are.
Personally, I value my own time well above my job's hourly rate, so I would expect to be paid more, not less, in the situation you describe. I suspect the same is true for many others as well.
> most of the people who submit the prior art as part of Project Jengo would do so even if there were no payout
I'd say this is due to selection bias. People who wanted a bigger payout didn't participate.
You all's program is basically over now, but I think anyone considering a prior art bounty program in the future should check best practices for bug bounty programs. The two seem similar to me. Paying more will get more and better submissions, and it doesn't seem to be particularly expensive to me.
Paying more doesn't always motivate people more or get more (quality) people to do a thing. Compensation and associated psychology is complicated, because people are complicated.
e.g. I am willingly working very hard at a job where I could make 10x or perhaps even 100x elsewhere with equal or less effort. And I often spend my time on things that are completely irrational by your types of economic measures or even "pay to work."
I always thought of it as a way to get input from people who can see the patent application and say “hey that’s just the same as X” off the top of their head.
Think of this more of as public service than a job, with the cash prize being there to generate media excitement.
I'll still pick up litter when I'm walking through a rich neighborhood, even though those people have groundskeepers to take care of it for them. No one is doing this with the goal of a profit.
If the patent trolls were only harming CloudFlare then I would not be so concerned. But it is my impression that they mostly try to go after very small, independent companies because those can be guaranteed to not have enough funds to fight in court, so they will either pay up or go out of business.
I consider it a public service to try and drive these patent trolls out of business because the harm they do is done to the the entire industry, especially the most vulnerable companies in that industry.
Of course, I would much prefer to change the law so that patent trolling was not allowed or was not profitable.
For what it's worth, and I know this won't be popular here, the entire patent troll narrative is overblown. Patent trolls are not as big a problem as big tech companies want you to believe. See what people working in patent law actually think, for instance, I found this blog post in a minute or so:
I think it's good that Cloudflare didn't pay this particular troll, but even if they had, it's not that big a deal.
And the best way to stop patent trolls would be to prevent bad patents from being granted in the first place by giving examiners more time. The USPTO is funded solely by fees, not taxes, creating a perverse incentive to grant invalid patents. Fix that, increase patent fees, and give examiners more time.
Fair enough. Replace "I" with "someone" in my previous comment. I can see why people would do these patent searches, but I still think it's a bad idea for those folks do these patent searches for so little.
No amount of money can provide that satisfaction. Heck, I’m not even impacted and I’m gleefully happy. Whoever helped deserves a free beer. Patent trolls are a blight.
It is the same with programmers who writes open source programs just for fun of it. And I remember in 2000x there were people who thought that it is a bad idea. There were even lawsuits filled by programmers who couldn't sell their programs because they were left without customers due to open source solutions.
from the viewpoint you've presented it's a bad idea to volunteer for basically anything.
even something like enlisting in a nation's armed forces is a bad idea since the risk is so high vs the monetary reward, and the only way people would become soldiers is to join mercenary armies where there is a price exacted that matches the performance.
for many people, they value the intangible more than the money.
Okay, I think appreciate your perspective and that of some others here more. If you all think it's a good use of your time, go ahead. Personally, I have more pressing concerns. And for what it's worth, (and I know this won't be popular here) the entire patent troll narrative is overblown, which seems to be the consensus opinion of people working in patent law. For example, see this blog post:
Why should a company that is doing a public service for the rest of us, at their own expense, pay more than it needs to to do that service?
If Cloudflare was to behave rationally, it would simply pay the troll to go away. Trolls are very good at making that the logical choice, which is why virtually everyone else just pays up. Cloudflare fights because the act of taking a stand fits with their values.
You're clearly not civic minded enough to appreciate why Cloudflare does what it does. And so you don't understand why other people, who share Cloudflare's values, would be motivated to help them accomplish their good deeds.
> Why should I do a "public service" for a company with a market cap measured in the tens of billions of dollars? They can pay for it.
It's right there in the name: public service. Yeah, it benefits cloudflare, but it also benefits nearly everyone else. Some people just want to improve the world, even if they're not fairly compensated for it. Some people see living in a world with one less patent troll as compensation enough.
The alternative is that Cloudflare pays a patent search firm to get the same result, albeit at a higher cost to Cloudflare. That would benefit everyone else too as the prior art would be on legal record. Why can't Cloudflare do a "public service" by paying a patent search firm like most other companies would?
As someone who didn't participate (because I didn't have any prior art), I'd donate a few hours of my time (a few thousand dollars' value) to fight patent trolls.
That’s cool and all but don’t lowball people. This was the first thing Cloudflare has done in years that I didn’t associate with something shitty until I saw this.
Just for once do the right thing rather than what you think you can get away with because overall this is a genuinely something to be celebrated.
While I don’t disagree with any of your points, it seems like they are using a “platform/UGC/crowd” model to change the economics of the business model.
In the same way that TV networks find/vet/pay for the supply of shows and take on the risk per-show, YouTube (at its core) doesn’t do any of that and all of the content creators do those things with the hope it will take off and a share of the ad revenue, while YouTube’s risks are related to the opex cost of the incoming supply/demand.
Instead of cloudflare paying per examiner, they give a non-guaranteed slice to a bigger group of people.
Gene Quinn (in 2015) estimated that patent search with the attorney's opinion on patentability for software costs around $2500 to $3000 [1]. Obviously the cost is going to be higher now. Compare that alone against the $1000 ("at least") per winner that Cloudflare's offering.
But Cloudflare isn't asking for an opinion on a particular invention. A patent searcher could come back and say there is no prior art that reads on the invention in that case and still be paid. Instead, Cloudflare's asking for invalidating prior art, which I think sets the bar even higher and should increase the payout to account for the fact that much of the time there won't be invalidating prior art and thus won't be a payout.
If the platform is not taking on as much risk, the payouts should be higher.
I doubt the program’s aimed at patent lawyers. They’re probably casting a wide net hoping to reach people who happen to be close to invalidating prior art to begin with, skipping the search. Or maybe people who’s sued by the same patent troll, in which case the program serves to pool findings. If I can write up something I already know in less than an hour and possibly win $1k, why not.
At Google we did a comparison of many, many "patent search" firms: giving them all the same task. Unfortunately I couldn't tell you the results even if I remembered them (which I don't). Most were garbage but a couple were spot-on.
It's more than $3,000; I can tell you that.
Secondly, it's detective work; you might get the answer right away, and you might spend days searching fruitlessly. Making a claim chart is what take the time: you have to hit every single element.
But is there any potential disproportionate upside for any of the group of people who are searching? The sued company avoids paying $100 million in damages, and my upside as a searcher is $1000? Correct? Like, I don't have a potential super high upside like a YouTube content creator.
After I quit the USPTO, I tried using ChatGPT 3.5 for some basic patent examining activity out of curiosity, and I can say that it did an absolutely horrendous job. This wasn't prior art search, just analyzing the text to do a rejection based on the text alone (35 USC 112).
And the AI search technologies I used tended to not be particularly good. They typically find "background" documents that are related but can't be used in a rejection.
I don't anticipate LLMs being able to examine patents in general well. Many times a detailed understanding of things not in the text is necessary to examine. For the technologies I examined, often search was basically flipping through drawings. I'd love to see an AI search technology focus specifically on patent drawings. This can be quite difficult. Often I'd have to understand the topology of a circuit (electrical or flow) and find a specific combination of elements. Of course, each drawing could be laid out differently but be topologically equivalent... this surely can be handled with computers in some way, but it's going to require a big effort right now.
Similar to the way in which software developers are terrible at delivering quality software on-time and on-budget, so I suppose ChatGPT has already reached human level performance on this task!
Then you need to go over each item with just as much care as you would any probably-irrelevant item pulled from a keyword search, because the LLM is incapable of evaluating it in any way other than correlation.
Also, you don't necessarily have a real dataset to begin with: prior art doesn't need to be patented, it just needs to be published/public/invented sufficiently before the patent. Searching the existing patent database is insufficient.
> Also, you don't necessarily have a real dataset to begin with: prior art doesn't need to be patented, it just needs to be published/public/invented sufficiently before the patent. Searching the existing patent database is insufficient.
I would caution against making assumptions with regards to dataset access and size. I agree effectiveness of the effort I mention would be a function of not only gen AI engineering, but also dataset size and scope.
There is an aspect of collective contribution to a collective good here. Patent trolls impose costs on everyone, not just Cloudflare. Making life difficult, expensive and unprofitable for patent trolls benefits everyone, not just Cloudflare. I expect that many of these people didn't see themselves as helping Cloudflare, but the community of everyone who might be targeted by patent trolls.
Cloudflare is shrewdly calculating that there is a lot of latent, unexpressed hate toward patent trolls but that most people don't want to make a career out of it, but might very well make a little hobby out of it, and so they get to take advantage of people who are motivated by something other than money.
More deeply, the very idea of a "patent examiner" has never made sense to me. It requires being expert in all things, which is impossible. It makes more sense to take someone who is an expert in a field, and put a "patent examiner" hat on them for a little while. Ideally the patent system is not so complex that it itself requires as much or more study to be expert in than the actual subjects of the patents -- this would be a very bad sign.
Patent Examiners do specialize in their fields. It isn't something that is just a common pool subject to any patent that comes into the pipe.
From the USPTO[1]
What kind of degree do I need to apply, and which vacancy do I need to apply to?
The minimum degree required to be a utility patent examiner is a bachelor’s degree. There are dozens of STEM-related bachelor’s degree types that qualify, even if they are not the exact discipline listed in the title of the job vacancy.
For example, professionals with bachelor’s degrees ranging from engineering, mathematics, astronomy, space science, geophysics, oceanography, or hydrology could all apply to the "Patent Examiner (Physics)" vacancy when it is open. To see more details about which degrees best fit with which patent examiner vacancies, view this chart[1].
You can also attend one of our upcoming webinars or office hours to chat with a current patent examiner, or email us at JoinUSPTO@uspto.gov with your specific question.
> Cloudflare is shrewdly calculating that there is a lot of latent, unexpressed hate toward patent trolls but that most people don't want to make a career out of it, but might very well make a little hobby out of it, and so they get to take advantage of people who are motivated by something other than money.
I don't think this is a good strategy. These folks tend to have a poor understanding of patent law in my experience, and you need to understand the basics to do this right. (You fortunately don't need to know too much law to handle 90% of cases.) And these folks probably aren't very effective at patent searching even if they understand the legal parts. I think most people overestimate their own search abilities. I certainly did. Examining patents didn't level me up as much as humble me in that regard.
> More deeply, the very idea of a "patent examiner" has never made sense to me. It require being expert in all things, which is impossible. [...]
As saratogacx pointed out, at the USPTO, the vast majority of examiners have a specific technology they are assigned to. While the matching of examiners to their "art unit" is often pretty bad (I could go on a rant...), the situation is not as bad as you described. There are some generalist examiners, but as I understand it, they are in (basically) QA roles and don't need to know the technologies as much. Unfortunately, USPTO upper management seems to want to make examiners into generalists, which I doubt will work out as they want.
I agree that periodic rotations of industry folks into patent examiner positions is a great idea. It would help the patent system and give the industry folks some appreciation for what examiners do.
If you're worried about lack of expertise, you should be more worried about the courts. Judges and juries almost never have a background in the technology of the case they are working on.
Proof is in the pudding, as they say. I've been astonished by the quality of the submissions we've received the times we've fired up Project Jengo. And it's helped us successfully beat — and literally put out of business — the two patent trolls that have come after us.
Did you all pay for a normal invalidation search as well? I'm glad it worked for you all, but I think "spray and pray" is typically not a good strategy. I suppose you all had enough scale to reach the right people.
>It would help the patent system and give the industry folks some appreciation for what examiners do.
The examiners regularly approve absolute bullshit patents in my field that either obviously have prior work, and shouldn't be patentable anyway such as game mechanics. They clearly don't understand the work they're meant to be doing. Either patent law is horribly designed and needs to be razed to the ground, or it's being horribly applied.
If you go to a hospital that lacks the resources to provide proper treatment, should you be surprised to receive poor treatment even if your doctor was highly competent? That's basically the situation the USPTO is in. Examiners are on a quota system and they don't get enough time to do a good quality job.
With that being said, the majority of the time, the examiner made the right decision. You should check whether a patent was actually granted, for instance. Often when people are complaining about a dumb patent they're actually complaining about a dumb patent application that the USPTO rightly rejected. You should be complaining about the people writing such applications, not the USPTO.
Further, the USPTO is funded purely by fees, not taxes. Applicants want patents. That creates a perverse incentive to reduce patent quality to make it easier to get patents.
Look for "Notice of Allowance and Fees Due (PTOL-85)" and click on "PDF" on the right. Scroll to page 10 and look for the "Reasons for Allowance" section where the examiner describes in detail why it differs from the prior art.
I was more looking for your opinion on the patent in general.
While there are minor technical differences in exactly how rANS has been encoded/decoded before, and how Microsoft does it, the fact that Microsoft was granted this means they now have a weapon with which they can cause fear, uncertainty and doubt around ANS, much to the chagrin of the ANS's actual inventor, Jarek Duda, who wanted it to be public domain and implementable by anyone.
It seems to me like Microsoft got a patent on "doing ANS a little bit different" - they didn't have to, they could just do it the normal way, but this little bit of difference lets them secure a patent, and now they can pursue anyone who implements ANS to intimidate them with "how sure are you don't do ANS like we do? Let's get our multi-billion legal team, and your legal team, and find out. You have a legal team, don't you?"
In particular, this patent already had a final rejection in 2020. But Microsoft then took advantage of the "After Final Consideration Pilot" program, which sounds more like the USPTO trying to drum up trade, to get it re-re-re-examined.
> Microsoft was granted this means they now have a weapon with which they can cause fear, uncertainty and doubt around ANS
This is due more to people not understanding what the patent covers. The right response in my view is to educate people. Just because someone has a patent on a particular variation of X, doesn't mean that working on X is risky or what not. Just don't infringe their variation. When I was at the USPTO, I examined a lot of little variations of common things in my area (water heaters and car air vents, mostly) and I never worried that it would stop innovation as usually the point of novelty was not particularly groundbreaking, or even necessarily of interest to anyone aside from the applicant.
The parent clearly said that approved parents were bullshit, and I agree. I have several patents, and have seen how nonsense the process is. When lawyers obfuscate the text enough to confuse the patent examiner, the patent gets approved. I can't tell if an individual patent examiner is competent or knowledgeable, but patent decisions have nothing to do with factuality or novelty.
I do remember your comments from past threads too. It really interesting to hear the perspective from the patent office's side, but the idea that the patent office had some secret and specialized method of evaluating novelty is ridiculous. Any expert can read a sample of granted patents and tell you that. I'd estimate maybe 5% of patents in my field have any novelty, and that's being generous.
I'm sure this has more to do with incentives and the overall system, and that individual patent examiners would prefer to do a good job. But you have to admit that the results are atrocious.
> The parent clearly said that approved parents were bullshit, and I agree.
Just because they said it was granted, doesn't mean that it was. A lot of people here don't seem able to distinguish between a granted patent and a rejected patent application. Here are two examples that I bothered to reply to in the past:
> the idea that the patent office had some secret and specialized method of evaluating novelty is ridiculous
I don't think they do and I never said they do. The USPTO follows some legal standard that I personally don't agree with. I agree with you that too few granted patents have genuine novelty.
> But you have to admit that the results are atrocious.
No, I don't. You've seen a small selection of what the USPTO outputs. Only the bad cases appear in the news. In contrast, I've seen a far larger and unbiased selection and know that the majority is fine. Most applications are rejected. I probably rejected over 75% myself.
I have seen the results from searches of patents in my field, and the patents that my colleagues get granted. It's hard to find even a single good patent in the bunch.
Is there a way to sample 5 random ML patents? I'd be surprised if half were any good.
I think the quality of examination and search is excellent given how little time examiners have. But mistakes still happen too frequently, and the mistakes can be highly costly. Better to stop problems upstream in my opinion by giving examiners more time.
Patent quality is related but different. I agree that patent quality is awful, but there's only so much an examiner can do to influence that. Attorneys have basically gamed the system to write vague legalese that's patentable but basically useless. And to paraphase a supervisor I knew at the USPTO, "Just because it's stupid doesn't mean that it's not patentable". I can't reject them if it meets the legal standards but is stupid.
> Ideally the patent system is not so complex that it itself requires as much or more study to be expert in than the actual subjects of the patents
Unfortunately, "patent law" is a complex body of laws, legal decisions, and specialized procedures large enough to be its own distinct specialization for lawyers. While it's not impossible to become an expert in it without years of study, it is definitely not possible to be excellent at it.
Just to put it in perspective, the Manual of Patent Examining Procedure alone weighs in at over 4K pages of text.
Heard an interesting counterpoint to this from a patent attorney. In the IP ecosystem patent trolls serve as a sort of check on the big companies - the apex predators - to stop them from willfully infringing on your patents and then bankrupting you in litigation.
While you as a startup may not have the resources to go after them in court; your IP assets in the hands of a competent and aggressive patent troll could be a very big problem for Big Co.
So in that sense they are also kind of like a parasite that infects the apex predators who eat tainted meat.
Don't think I've ever worked for a startup that had any patents whatsoever. I think I consulted with one IIRC, and they folded largely due to their hyperfocus on tech to the detriment of building something people actually wanted to pay for. Filing a patent was probably a symptom of that problem.
Its more like smaller public companies trying to keep bigger public companies in check.
Nice idea, except no one you mentioned spends their time doing patents. It's just big companies who are told by consultants to beef up their patent portfolio, and when they fail like Caspian, the remains are snatched up by bottom feeders who go around harassing others, preferably of course startups and others with no real resources.
it's what they don't do. a troll doesn't play any role in developing the tech they hold patents for, they just extract rent when someone stumbles into a similar solution
if a company doesn't develop products, but they actively license their patents to those that do, that's still patents working as intended, and not trolling. they're still helping to get the tech developed, rather than stifling it
(i think there are a lot of problems with software patents even when used as intended by real companies. mainly, they last too long)
I dunno, this line of reasoning doesn’t feel right to me. A company making products did develop the technology. They were awarded a patent. That patent was an asset. That asset was sold presumably for the benefit of the people behind the original company. That the resulting asset owner wasn’t the originator doesn’t feel like it should make any difference here?
Software patents are a scourge, I’m just not sure the reasoning there holds.
The reason is because they aren't being used as they were intended: patents are _supposed_ to be a way to give inventors/entrepreneurs a window to build a market with their idea. Let's say that you have some truly amazing invention that frobnicates foos 50x faster than anyone else, and you plan to take it to market. What would prevent the likes of Amazon from copying your idea with all the resources at their disposal? Patents.
Patents as an asset is exactly the problem. Your entire first paragraph is built on this faulted perspective - the assumption that how we actually use patents is aligned with how they were designed to be used. They are supposed to foster small businesses, not destroy them.
Software patents are a scourge only because patents as a whole have become a scourge.
> The reason is because they aren't being used as they were intended: patents are _supposed_ to be a way to give inventors/entrepreneurs a window to build a market with their idea.
If I invent something, I should surely be able to license its production if I don’t want to be in the production game myself. The alternative reduces to the absurd very quickly. If I invent a better system for making ball bearings, it’s not reasonable to say I should only benefit from it if I then personally raise the capital and experience to start a ball bearing manufacturing plant.
The issue is widespread bad behavior from patent trolls, given that the cost of mass filing patent infringement claims that barely apply is so much lower than the expected settlement, and the cost of a successful defense is likely higher than the request settlement. The incentive is to get a portfolio of overly broad patents and then shake down almost entirely unrelated companies.
if a company sells the patent to a "troll", but retains a license as part of the deal, i would consider that to be working as intended. it's basically a way to outsource the legal protection
if a company sells it to a broker, and it eventually gets traded or licensed to a company that develops it, i'd also consider that working as intended
if patents keep finding their way to companies that have no intention to either develop it themselves, or license it to others, and keep suing companies that do develop things, i'd consider it a failure of the system
pharma patents get traded to non-developers all the time, but pharma patents mostly do their job of incentivizing innovation. there's still flaws, but the troll problem isn't a big issue in that space
the issue is that there's no knowledge transfer from the patent holder to the developer, in these cases. there's no causal link from the patent to the development
the (forced) licensing deal comes after the development, and hinders it. and it's not to protect development of a related idea, either
That line of thinking is the problem. A patent is intended as a protection to spur development, not an asset to be traded.
The spirit of a patent is to protect a novel solution while a company develops and monetizes their innovation. It keeps bigger fish with deeper pockets from quickly copying your invention and monetizing it before you.
What's happened however is that Large companies with deep pockets are filing patents for anything and everything they can. These patents generally come from their R&D efforts but are not necessarily linked to any product specifically. They're also usually unenforceable junk that wouldn't hold up in court.
The value of these junk patents isn't in the viability to be developed into a product, rather their value is that it will take time and money to invalidate them in court.
When these companies are hit with a lawsuit for violating someone else's patent, their defense is to counter sue with as many junk patents as possible. The purpose of the counter suit is to make a settlement preferable to the protracted legal fight necessary to invalidate all of the junk patents. It's the path of least expense. You could argue this allows large companies to steal innovations from smaller players by forcing cross licensing agreements.
Often these patent portfolios are transferred to companies with no interest in developing products or protecting their business. These companies sole purpose are to weaponize the patents, they're Patent Trolls.
Using the same strategy as companies with defensive patent portfolios, Patent Trolls seek to extract settlements (extort money) from companies by suing them with all the junk patents they can. The patent trolls are immune to counter suit because they produce nothing. Thus companies must either invalidate each junk patent or settle. Often settling is the path of least expense.
>Are these patent trolls doing anything that normal companies with patents that try to monetize them don't do?
The important distinction here, in my opinion, is that investors bought a dead company along with it's IP for the explicit purpose of suing companies as that was their profit motive.
Had there been an existing company that was actively building/selling routers, then yes they would have been using the patents as intended - to protect their business. In this case the company who owns the patents, was using them in a weaponized fashion.
1. Patent trolls don't actually produce anything. They just extract rent from other companies.
2. The patents they choose tend to be extremely bad -- overly broad, should never have been granted, had prior art, the tech never existed, .... They use the fact that they're able to sue cheaply to bully people into settling on bogus claims.
Point (1) doesn't seem bad to me. It's kind of like how truck driving is separate from truck insurance. Having specialists capable of monetizing patents allows, in theory, inventors to invent and immediately sell for estimated lifetime patent value, minus a discount associated with the troll's costs and desired profits. Without trolls, in theory, you'd have fewer inventors because they'd also need to be/hire experts in marketing, litigation, ....
Point (2) is the one that bothers me the most, and my impression is that it's a very common problem.
Oh, and to your question, most companies use patents for mutually assured destruction and as a form of signalling that important people should want to work there, not to directly monetize. Monetizing patents is less common.
The argument against your argument in (1) is that if the incentive is to patent and sell to someone who will not market the patented invention either, it still isn't promoting the development of the product. It is actually _hindering_ the development of the product, because now whoever does develop the product has to pay an additional tax. Its literally antithetical to the concept of patents (I am _assuming_ they exist to spur R&D development primarily).
Another argument against your argument in (1), is to allow the scenario to exist only where the purchaser of the patent can prove they are marketing and selling it. That is still not ideal imho, but at least it eliminates outright patent trolls.
HN is I think particularly sensitive because it has a lot of programmers and product development folks, who know that a good idea or even plan on its own isn't very valuable. I'd guess most of us have more good ideas floating around than we'll ever have the time or money to develop on our own. Its the execution and delivery of good ideas that is valuable; patents in our eyes make the easy part easier and the hard part harder.
You would hope companies have patents based on something actually innovative. For software this is never the case. I think all software patents are bs.
This is great. I do worry that a future more sinister malicious patent troll could read all the wonderful strategy Cloudflare used and work around them. Hopefully Cloudflare legal team got stronger!
Kudos to the likes of Cloudflare and (yesteryears’) Newegg that fought these trolls.
I shudder at the thought of how many of the existing legacy industries outside the computer space are still riddled with these patent portfolio companies :(
> I do worry that a future more sinister malicious patent troll could read all the wonderful strategy
The "good" news is that patent trolling is, more or less by definition, a get-rich-quick scheme - they want to make a lot of money by sending a few dozen letters every year. It does not attract people who are interested in anything approaching due diligence.
But also, the whole point of all of this is to get the trolls to leave Cloudflare alone, right? This is a very deliberate strategy; this announcement says "don't try that stuff here ... but feel free to try Cisco or Juniper instead."
Hopefully the powers that be will look at it from a national security perspective, in that other countries do not respect US copyright law and may be pulling ahead
Patents are explicitly open for anyone to see. I don't know that we need more help there: you can get a product banned from import if someone uses your patent without recompense.
As someone in a place without pure software patents (algorithms can't be patented, but software/hardware combination systems can be), I'm willing to let US users use an overseas hosted instance instead of locally running it.
Though keeping US entities from importing copies against US patents isn't really something I could stop.
Why should they respect it? Software patents are and have always been a bad idea, blatant parasitism. They should never have been established, must never be taken seriously, and ought to be abolished.
The excerpts from the Borchers testimony are a riot.
> The responsible business people in this business actually sit down and talk to folks before they sue them, fair?
> Fair.
> And you don't do that, do you, sir?
> No.
I'm not a fan of Cloudflare in general. I think "Browser Integrity Check" is banal malware, the McAfee of the Web 2.0 era. But this? I love this. Settling with a patent troll out of court is cowardly.
I've read the article but I'm not sure I understand :
1. Why / how did sable give up its patent portfolio? It's handwaved as "lots of post trial stuff" but what's the nutshell of it? Is it because they're marked invalid? Is it punitive ruling? Something else?
2. There were 4 patents brought up against cloud flare, but sable gave up "its entire portfolio". Does that mean these 4 were their entire portfolio? Or did they have to give up patents outside of suit itself? If so, how and why? Did sable hang up the hat as a business?
Reading between the lines, my uneducated guess is that Sable knew they were going out of business either way and had to chose between paying ALL of Cloudflare's legal fees (possibly in the millions) or paying a token amount and giving up their (now or soon-to-be worthless) patents. The latter results in fewer financial loses for Sable and makes for excellent Cloudflare PR.
Edit: Also, it's entirely likely that Sable still made a tidy profit overall when it settled with the other big networking companies and decided to quit while they were ahead.
There's a picture of the "Dedication to the Public and Royalty Free License Agreement between Sable and Cloudflare" at the end of the article. [1]
Not a lawyer, but it seems to be part of the court ruling. Maybe CF didn't see a chance to get their costs back and made a deal so Sable needed to only pay a part, but also release the patents?
Sable's patents are from a company that stopped operations in 2006, so most patents are probably from well before then, and likely either expired or will very soon.
Take a look at the legal doctrine of collateral estoppel. Once a party gets its day in court on a specific issue of fact, it can't keep relitigating that issue in later legal actions. It's possible that Cloudflare was the first to take Sable's claims all the way to a verdict (versus settling early), so Sable might have finally gotten its day in court.
Did Sable give up ALL its patents, or only the patents involved in the Cloudflare case? The picture of the document refers to the "Sable Patents", which I would suspect are defined in the context of the court case and therefore are only the ones relevant to that case?
Why are patent trolls allowed to exist? A company that only holds patents and does no productive job with them (research, production, ...) should not be allowed to exist. It stifles development and innovation for the short-lived monetary gain of a few people.
The naive explanation is that it helps inventors, because speculative investors (the trolls!) buy up patents.
One analogy is pharma research. Rights for a promising candidate molecule are purchased by "big pharma" and they will do the grunt work to validate it and extract the big money from its therapeutic value.
Substitute "FDA market authorization after successful clinical trials" with "that infamous East Texas court district and picking the right targets" (picking a too big target might backfire, picking a too small doesn't really worth the costs, etc.)
Of course the questions are: does this really help inventors? do inventors need help? is it good for society that inventors get help? is the cost of helping inventors this way not unreasonable to the economy? and even if the cost is "low", how fucking fair is it that a lot of businesses are using a given invention but only a lucky few get dragged to court? can we do better? what kind of people patent trolls are? what do they do with the money?
I worked at a small biotech company whose business model was (in part) to do early stage drug discovery research and then sell promising leads to bigger companies, who would take the leads through the FDA approval process. Actually taking a drug through to approval is a $1 billion+ endeavor (with a high probability that it just won't work; e.g. stage 3 trials just fail). Small companies cannot do this.
So a naive solution like "don't allow patents to be sold" actually restricts a bunch of reasonable businesses.
Its a pure failure of the Patent office issuing dubious patents.
The patent office is financially encouraged to keep issuing patents no matter the quality because it keeps the patent fees and those are payed by the applicants. The patent office seems to be protected financially from issuing bad patents as well (I can't find any record of them being sued by companies that have licensed patents that have been invalidated).
The patent laws does not require such thing. If it were, there may be some unforseen consequences.
For example, during the late 1800s, a number of companies bandied together to pool their patents together for a commercially viable sewing machine. No single company had been able to develop and file patents that resulted in a working sewing machine. As such, they pooled the patents and negotiated a portion of royalties for everyone who contributed. That would probably have been set up as its own legal entity. With a requirement to be an operating company, such a legal vehicle would not have worked.
You could argue that such an entity is considered “productive”, but then you would have to define what that means and write it into the law. Any lawsuit involving patents would require demonstrating that.
Another example is trademarks. In order to have a registered trademark, you must show that it is in active use, and it is distinct. That means that in order to keep a registered trademark, you must sue anyone who is infringing upon it.
There is an indie author who came up on a litrpg genre concept combining it with a post-apocalypse setting. His book exploded upon the niche, progressive fantasy scene. People loved the idea and other authors wrote books for it. The original author tried to brand it and protect it with a registered trademark. Because the term had rapidly genericized, that author started sending cease & desist letters to other authors, because he was required to in order to keep the registered trademark.
I don’t know if he knew he had do that when he registered it, but doing so drained the goodwill he had in the community. Progressive fantasy is a small indie community, and the authors who can, gather at Dragoncon to talk, exchange ideas. This is similar to sending cease and desist to your neighbors. You will quickly find yourself locked out of the community.
I am thinking of the inventor of the bear suit. Making something to protect yourself from a grizzly bear seems like it has low value for society. It is also this off the wall perspective that allowed him to invent a gel that can absorb heat (probably a non-Newtonian fluid). If we’re trying to protect the livelihood of an indie inventor like that, would a requirement to demonstrate productivity help the Bear Suit inventor? Or would it have a chilling effect?
It’s an unfortunate byproduct of allowing patents to be bought and sold. Let’s say you had a patent: you worked hard on your invention and you deserve to reap the financial benefits of it. But you do not have the legal resources to protect your right as the inventor. It feels fair and reasonable to me that you can sell your patent to a third party to license and protect as they see fit, so you can reap some financial reward.
Now, how do you make sure that these companies buying patents don’t become trolls? I don’t think it’s fair to require them to use the patent, because that limits who the inventor can sell to. Personally I think the way IP lawsuits are filed and considered needs significant reform.
Submarine patents is a different issue, effectively ended by changes in 2000 that require (most) patent applications to be published, and changes in 1995 that changed the term of patents to start from date of filing rather than date of issuance. There could possibly be a few unpublished patent applications from before 1995 that are still in the examination process; but case law from 2005 [1][2] makes it difficult to enforce patents if there has been 'unreasonable and unjustified' delay in the claims, and I'd suspect it would be hard to justify a delay of 30 years.
Then you get will into issues of what use actually is. What is a reasonable timeline for filing a patent, and getting it to market? What is a slow and methodical development program vs. footdragging? What if the market for your product doesn't support profitable operation for your company, but someone else claims they can do it?
IMO patents should not be transferable. And maybe they shouldn't be assignable to corporate entities, only to people. Multiple people at once if they all contributed to the invention.
This would massively disenfranchise small inventors, and force all inventive work into large companies. There is no reason that the person who does the inventing should also be the person developing and selling a product.
It is weird and unfortunate that the longstanding deficiencies with patent law (chiefly: issuing patents for things that are too obvious or numerous) are being blamed on transferability of property rights. It’s the same broken intuition as over regulating housing construction and then blaming high housing costs on ownership by Chinese nationals.
In a perfect world this is arbitrage. Arbitrage helps making markets more efficient. However we don't live in a perfect world. Judgment is too expensive and risky. If it were quick, cheap and safe then patent trolls won't have the chance to do extortion. They would be limited to ... um... arbitrage!
I really wish this settlement included disclosing what the other trolled parties ("including Cisco, Fortinet, Check Point, SonicWall, and Juniper Networks") paid.
With the verdict in-hand, Sable was probably voluntold by Cloudflare.
If Cloudflare thought they had a shot at recovering costs, $225k and a patent-portfolio could be substantially less than whatever Cloudflare (or their insurance) had paid in defense-costs.
They had those patents only to sue other companies and get money, now some of those patents were invalidated by prior art and to Sable are essentially toilet paper.
The action is unlikely to be goodwill, more likely admitting defeat and closing the patent troll company.
Could a part of the motivation perhaps be quick, clean liquidation, before any of the companies who settled before cloudflare chose resistance might try to claw back some of the settlement?
Cloudflare has negotiating power. They would prefer to give up some of the legal cost recoup in exchange for the public crucifixion of the trolling firm. It's intentionally painting a very scary picture of what happens when you sue Cloudflare, as a deterrent.
As I read this, all but one of Sable's patent claims got invalidated in an IPR (a patent proceeding), and the last one got invalidated by a jury at trial. When your patents have no claims left, you aren't doing anything by releasing the patents to the public. It's been defanged anyway.
In a sane law system, the existence of a company as a mere "box of patents" without any real product currently or previously on the market would be illegal, and these patent trolls won't exist...
Where would you draw a line for "any real product" ? ARM for example doesn't actually produce any "real" (physical) product, but they certainly do research and produce technology for other companies to build products on.
There's a lot of "on paper" companies around the world who actually do produce novel technologies even if they don't themselves create the end product, but instead sell their inventions to other parties.
I don't think they should be illegal... companies that don't "produce" anything are useful for lots of different legitimate reasons. But the bar for suing for damages should be a lot higher than just, "we happen to own the patents."
I consider this a victory for creativity, freedom and technological progress. Let the entrepreneurs innovate and execute without fear of legal suffocation!
Good news! There should be a rule that you have to use a patent in X years (much less than the lifetime) so its harder to do this behavior of hoarding a patent.
So Cisco, Fortinet, Check Point, SonicWall, and Juniper Networks paid millions to Sable. Sable paid $225k to Cloudflare, and won't use them again against anyone.
Sounds like they don't need to. Well played Sable. Enjoy your money.
I really wish we could publicly shame the people behind these abuses or provide some other incentive to correct bad behavior other than speeding-ticket sized fines.
In other news, as an investor, this tells me Cloudflare is technologically ahead of the other older companies who apparently were not sure they could defend against the claims.
> I really wish we could publicly shame the people behind these abuses or provide some other incentive to correct bad behavior other than speeding-ticket sized fines.
>In other news, as an investor, this tells me Cloudflare is technologically ahead of the other older companies who apparently were not sure they could defend against the claims.
That feels like a highly specious takeaway from this court case. Companies settle against trolls because litigation isn't free to fight. It can make very good financial sense (and even be encouraged by investors who don't want to see a company in the courts for years, as Cloudflare was.)
I would be highly interested to see the breakdown of what it cost in manhours, fees, prizes to Project Jengo, etc. versus the payout from Sable to fight this particular case for Cloudflare, and whether they even came close to breaking even just on this case alone. Likely their decision somewhat hinged on an estimate of what it might cost to settle all other patent disputes in the future, and the belief that fighting this case is actually saving them much more money down the line (but how much?).
On the flip side, there's some napkin math to be done about the costs saved by any future patent trolls who are averted by going all scorched earth this time around...
> I really wish we could publicly shame the people behind these abuses or provide some other incentive to correct bad behavior other than speeding-ticket sized fines.
They are beyond shame, believe me. There have already been TV news segments about how their "place of business" in West Texas is just a PO Box.
A lot of patent trolls have no assets, and don't own anything except the patents they're currently milking. Then they go out of business, and there's nothing to sue. Sable apparently made the mistake of building up a portfolio and living on.
> Proving invalidity to a jury is hard. The burden on the defendant is high: Cloudflare needed to prove by clear and convincing evidence that claim 25 is invalid. And, proving it by describing how the claim is obvious in light of the prior art is complicated.
You're not kidding.
> Sable’s damages expert, Stephen Dell, told the jury that Sable was owed somewhere between $25 million and $94.2 million in damages.
"damages experts" == nice work if you can get it. The damage expert in the Apple v. Samsung trial that I went to was paid $2 million. "How much are you getting paid?" is always one of the first things they get asked on cross-examination.
> Sable has agreed to dedicate its entire patent portfolio to the public. This means that Sable will tell the U.S. Patent and Trademark Office that it gives up all of its legal rights to its patent portfolio
Left unsaid is whether this includes anything other than the patents that they already lost on.
> Sable agreed to pay Cloudflare $225,000, ... and to dedicate its patents to the public, ensuring that Sable can never again assert them against another company.
Makes me wonder if Cloudflare could have sued to "life the corporate veil" and go after the people who owned / operated the company. (IE, sue them so they loose their homes.)
Also makes me wonder if this is in the playbook the next time a patent troll comes sniffing around.
Somewhat related: In MA, to fight NIMBY-ism, we passed a law that people suing new housing developments can be forced to put up a deposit, without requiring proof that the case has merit. I wonder if a similar law could help with patent trolls: IE, making it easier that the plantiff put up a deposit when suing for violating their patent.
From TFA: "Sable has agreed to dedicate its entire patent portfolio to the public. This means that Sable will tell the U.S. Patent and Trademark Office that it gives up all of its legal rights to its patent portfolio. Sable can never again use these patents to sue for infringement; they can never again use these patents to try to make a quick buck."
> Are they going to an open source patent pool or something?
All patents are "open for public access" [1]. And once they age past their "expiration date" (currently twenty years from earliest date of filing) they become "public property".
What Sable is doing is giving up the ability to restrict others based on the patents content's before those patents would normally have expired anyway. So in effect they are having the patents "expire early" -- which makes the contents of each become "public property".
The patent troll buys patents from inventors and then spend money enforcing it. Not much different from Cloudfare paying salaries to the inventors to become the patent holders and then enforcing it against third-parties.
Tech patents exist because companies like Clouldflare want to because they make money with them (suing people). If companies like Cloudfare did want all tech patents to be gone, they would be gone and no patent troll would be able to do anything about.
And they try lure you with $5.000 to do the work to get them off the hook? They are cheap and bunch hypocrites.
Do you have any evidence of Cloudflare suing people for violating their patents. Seems like you'd be able to back up this claim since it's a core component of your argument.
Also, your reasoning seems to leave out a world of possibilities for why someone would hold a patent - its worth looking up the thinking around defensive patent portfolios.
These exist for a few reasons.... patents might be strategically filed to:
* have prior art on the record to keep a market open... e.g. preventing a competitor from monopolizing a space.
* have patents available for counter-suit against competitors suing over patent violation of some bit of tech that uses both.
* impress investors
* provide recognition to employees. At least in the US patents are filed by individuals, and the rights of the patent are then assigned to the company. Granted patents usually come with bonuses, as well as a nice resume padding that helps the engineers involved get higher salaries in the future.
Looks like it. Not all patents are the same - sometimes a patent is erroneously granted for something that is not a novel invention. The judge and jury ruled that the patents involved in this case were in that category... and therefore invalid patents.
There is no hypocrisy in holding patents (presumably ones you believe are valid) while pointing out that some other patents are invalid. I don't understand how this could equate to hypocrisy in any scenario short of the patent holder declaring all patents except theirs must be invalid on the principle that all patents are bad.
> Don't they enforce them?
Feel free to prove me wrong, but I've never seen anything about Cloudflare going after people for patent violations. I believe they subscribe to the modern tech patent strategy of having a big patent portfolio that only really gets used as part of a counter-suit if someone sues them for patent infringement.
Additionally, I presume Cloudflare's patents are related to the tech they develop and sell, which is categorically and qualitatively different than a law firm that does literally nothing of value buying up old patents and suing everyone who has ever used a word that also is present in the patent.
Given that the usage, purpose, and means of obtaining a patent are different between cloudflare and the troll - I don't understand how a hypocrisy claim can be leveled here... it defies all reason and logic to do so.
Well, it's nice to know that Sable's entire portfolio is going into the public domain, it's a shame that the likely 50-100 other shell companies owned by this troll still have an arsenal of useless, but incredibly complicated, patents to use to extort money.
A just world would involve piercing the corporate veil and imposing personal consequences on the owner of this company.
Patents should have a triviality clause in them, so if you can prove that they're trivial to create and implement and be thus invalid if they are.
On one hand, you have patents where someone needed to do thousands of experiments, often costly, years of research to invent some kind of procedure to do X and thus should have some protections from others just taking the implementation and doing it cheaper, because they don't have the development costs. On the other, you can patent "Page down button on the keyboard moves the screen down one full page (A4) instead of one screen size"
> A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.
The problem is that unless the USPTO can find the requisite publications to prove the "obvious" part above from the statute, that then knocking down the resulting issued patent in a court case can be a very expensive effort.
> On the other, you can patent "Page down button on the keyboard moves the screen down one full page (A4) instead of one screen size"
Applicant's get patents because the USPTO can't find the publications necessary to prove they do not deserve to get the patent (there's also lack of time problems that I'm ignoring at the moment).
For your premise, often the reason why "Page Down moves by 'printed page'" might get patented is the lack of any findable publication of anything stating such. The USPTO examiner's don't have the ability to just say "but this is the way it works....", they have to find some publication, somewhere, that said "this is the way it works...".
For things like "how much movement 'PageDown' means", finding publications that state "how much" is extremely difficult.
Exactly. But to "prove" it in the USPTO process, they need that "written down" item. And if it is never "written down" because it is too trivial to write down, then the USPTO' examiner's hand are very much tied.
You can see why, though. Even in this case where they thoroughly won, and got damages, the damages were just $225K, and they probably spent millions on legal fees, employee/founder time, etc.
Ultimately, the American legal system is pretty broken. If someone brings a frivolous lawsuit against you, and you defend yourself in court, nearly 100% of the time you’ll be losing money, often a lot of money. This is the core reason why patent trolls exist, why companies normally settle out of court - it’s cheaper to do so.
How much does it cost to argue in court that a particular entity is an abuser though? Someone has to be willing to cover those costs up front, otherwise people will just keep settling if they don't want to go through that process.
It's not just cost, it's cost x uncertainty of outcome. A settlement is very tempting from cost x uncertainty alone. But it also has other merits: when the rich, powerful incumbent gives in and settles, the fragile thrifty upstart won't see the slightest chance of winning and either beg the troll for an affordable licence (but they won't get a good offer) or look for a completely different line of business. To the incumbent, the settlement is a fee paid for moat-as-a-service provided by the troll.
If more companies let patent trolls go to court their repeated losses would fall under the first part of California's definition, but since they settle, trolls are technically not even litigants.
I couldn't tell from the article but it seems the $225k was a settlement, and the release of all patents was additionally part of the settlement - I doubt the court could have awarded that directly. So they took $225k + the release of the patents, and I assume that the trolls would only have agreed to that if they felt the court awarded cash value would have been significantly higher.
Agreed, it’s a lose-lose situation really. But the reason most companies just settle is that going to trial is so expensive, and the American legal system allows these frivolous lawsuits while generally awarding either no compensatory damages, or damages far below the cost of the defence.
As a former patent examiner, I was struck by how low the payout for Project Jengo was. $125,000 for all people submitting prior art? (There were hundreds of submissions, so it's split among many people.) I would like to help out with such things and I think I have the experience to do it well, but even being a GS-7 patent examiner making $75,000 per year is a better deal! That's especially true given that Cloudflare's not only expecting people to find prior art, but to also write the legal arguments about why it reads on Sable's claims.
If they're serious about their prior art bounty program, they're going to need to increase the bounties. Actual patent search firms charge a lot more money, and even lowly paid bureaucrats make a lot more.
Having talked with several of them, most of the people who submit the prior art as part of Project Jengo would do so even if there were no payout. Several winners have actually asked that the payout be donated back to other organizations fighting patent trolls. This isn't intended to be anyone's full time job. It is intended to reward technical people with industry knowledge who may be able to help surface prior art and are as sick of patent trolls as we are.
Thanks for your comment.
Personally, I value my own time well above my job's hourly rate, so I would expect to be paid more, not less, in the situation you describe. I suspect the same is true for many others as well.
> most of the people who submit the prior art as part of Project Jengo would do so even if there were no payout
I'd say this is due to selection bias. People who wanted a bigger payout didn't participate.
You all's program is basically over now, but I think anyone considering a prior art bounty program in the future should check best practices for bug bounty programs. The two seem similar to me. Paying more will get more and better submissions, and it doesn't seem to be particularly expensive to me.
It was obviously sufficient ;)
Paying more doesn't always motivate people more or get more (quality) people to do a thing. Compensation and associated psychology is complicated, because people are complicated.
e.g. I am willingly working very hard at a job where I could make 10x or perhaps even 100x elsewhere with equal or less effort. And I often spend my time on things that are completely irrational by your types of economic measures or even "pay to work."
I'm remembering the time I spent $40,000 worth of time saving maybe a couple grand on bike parts.
(I spent a couple months between gigs building a bicycle from parts, and sourcing the parts was the biggest timesink.)
What did you build?
A 29er with a continuously variable transmission in the rear hub, mustache handlebars, wood fenders, and a crank made by a mill in Petaluma.
That sounds great. Any pictures anywhere? I need to get out of the ‘bike must go faster’ rut.
https://bikeindex.org/bikes/1035
I always thought of it as a way to get input from people who can see the patent application and say “hey that’s just the same as X” off the top of their head.
Think of this more of as public service than a job, with the cash prize being there to generate media excitement.
I'll still pick up litter when I'm walking through a rich neighborhood, even though those people have groundskeepers to take care of it for them. No one is doing this with the goal of a profit.
Why should I do a "public service" for a company with a market cap measured in the tens of billions of dollars? They can pay for it.
And this is a much bigger ask than picking up litter.
If the patent trolls were only harming CloudFlare then I would not be so concerned. But it is my impression that they mostly try to go after very small, independent companies because those can be guaranteed to not have enough funds to fight in court, so they will either pay up or go out of business.
I consider it a public service to try and drive these patent trolls out of business because the harm they do is done to the the entire industry, especially the most vulnerable companies in that industry.
Of course, I would much prefer to change the law so that patent trolling was not allowed or was not profitable.
For what it's worth, and I know this won't be popular here, the entire patent troll narrative is overblown. Patent trolls are not as big a problem as big tech companies want you to believe. See what people working in patent law actually think, for instance, I found this blog post in a minute or so:
https://ipwatchdog.com/2017/06/22/myths-patent-trolls-preven...
I think it's good that Cloudflare didn't pay this particular troll, but even if they had, it's not that big a deal.
And the best way to stop patent trolls would be to prevent bad patents from being granted in the first place by giving examiners more time. The USPTO is funded solely by fees, not taxes, creating a perverse incentive to grant invalid patents. Fix that, increase patent fees, and give examiners more time.
Nobody's trying to tell you that you have to do this. They're trying to help you understand why other people want to do it.
Is there a name for the fallacy "I don't see why people do X", "they do it because Y", "but I don't care about Y!" ?
Fair enough. Replace "I" with "someone" in my previous comment. I can see why people would do these patent searches, but I still think it's a bad idea for those folks do these patent searches for so little.
For a patent search? Too little.
Screwing over a patent troll? That’s priceless.
No amount of money can provide that satisfaction. Heck, I’m not even impacted and I’m gleefully happy. Whoever helped deserves a free beer. Patent trolls are a blight.
It is the same with programmers who writes open source programs just for fun of it. And I remember in 2000x there were people who thought that it is a bad idea. There were even lawsuits filled by programmers who couldn't sell their programs because they were left without customers due to open source solutions.
isn't this exactly the point?
from the viewpoint you've presented it's a bad idea to volunteer for basically anything.
even something like enlisting in a nation's armed forces is a bad idea since the risk is so high vs the monetary reward, and the only way people would become soldiers is to join mercenary armies where there is a price exacted that matches the performance.
for many people, they value the intangible more than the money.
Okay, I think appreciate your perspective and that of some others here more. If you all think it's a good use of your time, go ahead. Personally, I have more pressing concerns. And for what it's worth, (and I know this won't be popular here) the entire patent troll narrative is overblown, which seems to be the consensus opinion of people working in patent law. For example, see this blog post:
https://ipwatchdog.com/2017/06/22/myths-patent-trolls-preven...
Why should a company that is doing a public service for the rest of us, at their own expense, pay more than it needs to to do that service?
If Cloudflare was to behave rationally, it would simply pay the troll to go away. Trolls are very good at making that the logical choice, which is why virtually everyone else just pays up. Cloudflare fights because the act of taking a stand fits with their values.
You're clearly not civic minded enough to appreciate why Cloudflare does what it does. And so you don't understand why other people, who share Cloudflare's values, would be motivated to help them accomplish their good deeds.
> Why should I do a "public service" for a company with a market cap measured in the tens of billions of dollars? They can pay for it.
It's right there in the name: public service. Yeah, it benefits cloudflare, but it also benefits nearly everyone else. Some people just want to improve the world, even if they're not fairly compensated for it. Some people see living in a world with one less patent troll as compensation enough.
The alternative is that Cloudflare pays a patent search firm to get the same result, albeit at a higher cost to Cloudflare. That would benefit everyone else too as the prior art would be on legal record. Why can't Cloudflare do a "public service" by paying a patent search firm like most other companies would?
As someone who didn't participate (because I didn't have any prior art), I'd donate a few hours of my time (a few thousand dollars' value) to fight patent trolls.
That’s cool and all but don’t lowball people. This was the first thing Cloudflare has done in years that I didn’t associate with something shitty until I saw this.
Just for once do the right thing rather than what you think you can get away with because overall this is a genuinely something to be celebrated.
While I don’t disagree with any of your points, it seems like they are using a “platform/UGC/crowd” model to change the economics of the business model.
In the same way that TV networks find/vet/pay for the supply of shows and take on the risk per-show, YouTube (at its core) doesn’t do any of that and all of the content creators do those things with the hope it will take off and a share of the ad revenue, while YouTube’s risks are related to the opex cost of the incoming supply/demand.
Instead of cloudflare paying per examiner, they give a non-guaranteed slice to a bigger group of people.
Gene Quinn (in 2015) estimated that patent search with the attorney's opinion on patentability for software costs around $2500 to $3000 [1]. Obviously the cost is going to be higher now. Compare that alone against the $1000 ("at least") per winner that Cloudflare's offering.
But Cloudflare isn't asking for an opinion on a particular invention. A patent searcher could come back and say there is no prior art that reads on the invention in that case and still be paid. Instead, Cloudflare's asking for invalidating prior art, which I think sets the bar even higher and should increase the payout to account for the fact that much of the time there won't be invalidating prior art and thus won't be a payout.
If the platform is not taking on as much risk, the payouts should be higher.
[1] https://ipwatchdog.com/2015/04/04/the-cost-of-obtaining-a-pa...
I doubt the program’s aimed at patent lawyers. They’re probably casting a wide net hoping to reach people who happen to be close to invalidating prior art to begin with, skipping the search. Or maybe people who’s sued by the same patent troll, in which case the program serves to pool findings. If I can write up something I already know in less than an hour and possibly win $1k, why not.
At Google we did a comparison of many, many "patent search" firms: giving them all the same task. Unfortunately I couldn't tell you the results even if I remembered them (which I don't). Most were garbage but a couple were spot-on.
It's more than $3,000; I can tell you that.
Secondly, it's detective work; you might get the answer right away, and you might spend days searching fruitlessly. Making a claim chart is what take the time: you have to hit every single element.
But is there any potential disproportionate upside for any of the group of people who are searching? The sued company avoids paying $100 million in damages, and my upside as a searcher is $1000? Correct? Like, I don't have a potential super high upside like a YouTube content creator.
FOSS has almost unlimited upside and is based on contributors who are barely paid anything.
Strangely, this sounds like a great use case for LLMs? To just grind through entire datasets attempting to surface prior art.
Edit: Found this with a search, so it can be done: https://xlscout.ai/novelty-checker-llm/
(also, thanks Cloudflare! Keep on grinding patent trolls!)
After I quit the USPTO, I tried using ChatGPT 3.5 for some basic patent examining activity out of curiosity, and I can say that it did an absolutely horrendous job. This wasn't prior art search, just analyzing the text to do a rejection based on the text alone (35 USC 112).
And the AI search technologies I used tended to not be particularly good. They typically find "background" documents that are related but can't be used in a rejection.
I don't anticipate LLMs being able to examine patents in general well. Many times a detailed understanding of things not in the text is necessary to examine. For the technologies I examined, often search was basically flipping through drawings. I'd love to see an AI search technology focus specifically on patent drawings. This can be quite difficult. Often I'd have to understand the topology of a circuit (electrical or flow) and find a specific combination of elements. Of course, each drawing could be laid out differently but be topologically equivalent... this surely can be handled with computers in some way, but it's going to require a big effort right now.
The patent office is also horrendous at evaluating novelty, so I suppose ChatGPT has already reached human level performance on this task!
Similar to the way in which software developers are terrible at delivering quality software on-time and on-budget, so I suppose ChatGPT has already reached human level performance on this task!
ChatGPT is a mirror where we don't look too good ...
My point was more that just because humans are terrible at something doesn't mean ChatGPT can't be much worse.
Then you need to go over each item with just as much care as you would any probably-irrelevant item pulled from a keyword search, because the LLM is incapable of evaluating it in any way other than correlation.
Also, you don't necessarily have a real dataset to begin with: prior art doesn't need to be patented, it just needs to be published/public/invented sufficiently before the patent. Searching the existing patent database is insufficient.
> Also, you don't necessarily have a real dataset to begin with: prior art doesn't need to be patented, it just needs to be published/public/invented sufficiently before the patent. Searching the existing patent database is insufficient.
I would caution against making assumptions with regards to dataset access and size. I agree effectiveness of the effort I mention would be a function of not only gen AI engineering, but also dataset size and scope.
Going over a better curated list is a significant upgrade and time saver.
Let’s not pretend that “correlation” isn’t very powerful
There are, in fact, startups working on using AI for legal matters. I know one of the principals in one personally.
I don't know if they're tackling this issue, though.
There is an aspect of collective contribution to a collective good here. Patent trolls impose costs on everyone, not just Cloudflare. Making life difficult, expensive and unprofitable for patent trolls benefits everyone, not just Cloudflare. I expect that many of these people didn't see themselves as helping Cloudflare, but the community of everyone who might be targeted by patent trolls.
It seems like it worked out quite well for Cloudflare. You typically only increase bounties if you aren't seeing the results you want.
Cloudflare is shrewdly calculating that there is a lot of latent, unexpressed hate toward patent trolls but that most people don't want to make a career out of it, but might very well make a little hobby out of it, and so they get to take advantage of people who are motivated by something other than money.
More deeply, the very idea of a "patent examiner" has never made sense to me. It requires being expert in all things, which is impossible. It makes more sense to take someone who is an expert in a field, and put a "patent examiner" hat on them for a little while. Ideally the patent system is not so complex that it itself requires as much or more study to be expert in than the actual subjects of the patents -- this would be a very bad sign.
Patent Examiners do specialize in their fields. It isn't something that is just a common pool subject to any patent that comes into the pipe.
From the USPTO[1]
What kind of degree do I need to apply, and which vacancy do I need to apply to? The minimum degree required to be a utility patent examiner is a bachelor’s degree. There are dozens of STEM-related bachelor’s degree types that qualify, even if they are not the exact discipline listed in the title of the job vacancy.
For example, professionals with bachelor’s degrees ranging from engineering, mathematics, astronomy, space science, geophysics, oceanography, or hydrology could all apply to the "Patent Examiner (Physics)" vacancy when it is open. To see more details about which degrees best fit with which patent examiner vacancies, view this chart[1]. You can also attend one of our upcoming webinars or office hours to chat with a current patent examiner, or email us at JoinUSPTO@uspto.gov with your specific question.
[1] https://www.uspto.gov/jobs/become-patent-examiner [2] https://www.uspto.gov/sites/default/files/documents/patent-e...
There aren't any consequences to their decisions though.
Patent examiner shouldn't be a civil servant's job.
Rather, it should be a "bond" process given to private, accredited individuals / organizations.
If your issued patents are found invalid, your bond (which would be in the millions) is raided to pay back damages.
> Cloudflare is shrewdly calculating that there is a lot of latent, unexpressed hate toward patent trolls but that most people don't want to make a career out of it, but might very well make a little hobby out of it, and so they get to take advantage of people who are motivated by something other than money.
I don't think this is a good strategy. These folks tend to have a poor understanding of patent law in my experience, and you need to understand the basics to do this right. (You fortunately don't need to know too much law to handle 90% of cases.) And these folks probably aren't very effective at patent searching even if they understand the legal parts. I think most people overestimate their own search abilities. I certainly did. Examining patents didn't level me up as much as humble me in that regard.
> More deeply, the very idea of a "patent examiner" has never made sense to me. It require being expert in all things, which is impossible. [...]
As saratogacx pointed out, at the USPTO, the vast majority of examiners have a specific technology they are assigned to. While the matching of examiners to their "art unit" is often pretty bad (I could go on a rant...), the situation is not as bad as you described. There are some generalist examiners, but as I understand it, they are in (basically) QA roles and don't need to know the technologies as much. Unfortunately, USPTO upper management seems to want to make examiners into generalists, which I doubt will work out as they want.
I agree that periodic rotations of industry folks into patent examiner positions is a great idea. It would help the patent system and give the industry folks some appreciation for what examiners do.
If you're worried about lack of expertise, you should be more worried about the courts. Judges and juries almost never have a background in the technology of the case they are working on.
Proof is in the pudding, as they say. I've been astonished by the quality of the submissions we've received the times we've fired up Project Jengo. And it's helped us successfully beat — and literally put out of business — the two patent trolls that have come after us.
The proof is not in the pudding. The proof of the pudding is in the eating.
Did you all pay for a normal invalidation search as well? I'm glad it worked for you all, but I think "spray and pray" is typically not a good strategy. I suppose you all had enough scale to reach the right people.
>It would help the patent system and give the industry folks some appreciation for what examiners do.
The examiners regularly approve absolute bullshit patents in my field that either obviously have prior work, and shouldn't be patentable anyway such as game mechanics. They clearly don't understand the work they're meant to be doing. Either patent law is horribly designed and needs to be razed to the ground, or it's being horribly applied.
If you go to a hospital that lacks the resources to provide proper treatment, should you be surprised to receive poor treatment even if your doctor was highly competent? That's basically the situation the USPTO is in. Examiners are on a quota system and they don't get enough time to do a good quality job.
With that being said, the majority of the time, the examiner made the right decision. You should check whether a patent was actually granted, for instance. Often when people are complaining about a dumb patent they're actually complaining about a dumb patent application that the USPTO rightly rejected. You should be complaining about the people writing such applications, not the USPTO.
Further, the USPTO is funded purely by fees, not taxes. Applicants want patents. That creates a perverse incentive to reduce patent quality to make it easier to get patents.
I've elaborated on these issues at length on HN before: https://news.ycombinator.com/item?id=36563611
What is your opinion on US20200413106A1, which was granted?
https://en.wikipedia.org/wiki/Asymmetric_numeral_systems#Pat...
https://www.theregister.com/2021/03/13/microsoft_ans_patent/
I have no personal opinion. If you want the opinion of the examiner, you can go here:
https://patentcenter.uspto.gov/applications/16456602/ifw/doc...
Look for "Notice of Allowance and Fees Due (PTOL-85)" and click on "PDF" on the right. Scroll to page 10 and look for the "Reasons for Allowance" section where the examiner describes in detail why it differs from the prior art.
I was more looking for your opinion on the patent in general.
While there are minor technical differences in exactly how rANS has been encoded/decoded before, and how Microsoft does it, the fact that Microsoft was granted this means they now have a weapon with which they can cause fear, uncertainty and doubt around ANS, much to the chagrin of the ANS's actual inventor, Jarek Duda, who wanted it to be public domain and implementable by anyone.
I'm not an expert but Duda and fellow compression experts looked at the claims themselves: https://encode.su/threads/2648-Published-rANS-patent-by-Stor...
It seems to me like Microsoft got a patent on "doing ANS a little bit different" - they didn't have to, they could just do it the normal way, but this little bit of difference lets them secure a patent, and now they can pursue anyone who implements ANS to intimidate them with "how sure are you don't do ANS like we do? Let's get our multi-billion legal team, and your legal team, and find out. You have a legal team, don't you?"
In particular, this patent already had a final rejection in 2020. But Microsoft then took advantage of the "After Final Consideration Pilot" program, which sounds more like the USPTO trying to drum up trade, to get it re-re-re-examined.
> Microsoft was granted this means they now have a weapon with which they can cause fear, uncertainty and doubt around ANS
This is due more to people not understanding what the patent covers. The right response in my view is to educate people. Just because someone has a patent on a particular variation of X, doesn't mean that working on X is risky or what not. Just don't infringe their variation. When I was at the USPTO, I examined a lot of little variations of common things in my area (water heaters and car air vents, mostly) and I never worried that it would stop innovation as usually the point of novelty was not particularly groundbreaking, or even necessarily of interest to anyone aside from the applicant.
The parent clearly said that approved parents were bullshit, and I agree. I have several patents, and have seen how nonsense the process is. When lawyers obfuscate the text enough to confuse the patent examiner, the patent gets approved. I can't tell if an individual patent examiner is competent or knowledgeable, but patent decisions have nothing to do with factuality or novelty.
I do remember your comments from past threads too. It really interesting to hear the perspective from the patent office's side, but the idea that the patent office had some secret and specialized method of evaluating novelty is ridiculous. Any expert can read a sample of granted patents and tell you that. I'd estimate maybe 5% of patents in my field have any novelty, and that's being generous.
I'm sure this has more to do with incentives and the overall system, and that individual patent examiners would prefer to do a good job. But you have to admit that the results are atrocious.
> The parent clearly said that approved parents were bullshit, and I agree.
Just because they said it was granted, doesn't mean that it was. A lot of people here don't seem able to distinguish between a granted patent and a rejected patent application. Here are two examples that I bothered to reply to in the past:
https://news.ycombinator.com/item?id=38766101
https://news.ycombinator.com/item?id=36563425
> the idea that the patent office had some secret and specialized method of evaluating novelty is ridiculous
I don't think they do and I never said they do. The USPTO follows some legal standard that I personally don't agree with. I agree with you that too few granted patents have genuine novelty.
> But you have to admit that the results are atrocious.
No, I don't. You've seen a small selection of what the USPTO outputs. Only the bad cases appear in the news. In contrast, I've seen a far larger and unbiased selection and know that the majority is fine. Most applications are rejected. I probably rejected over 75% myself.
I have seen the results from searches of patents in my field, and the patents that my colleagues get granted. It's hard to find even a single good patent in the bunch.
Is there a way to sample 5 random ML patents? I'd be surprised if half were any good.
I think I haven't been clear on a few things.
I think the quality of examination and search is excellent given how little time examiners have. But mistakes still happen too frequently, and the mistakes can be highly costly. Better to stop problems upstream in my opinion by giving examiners more time.
Patent quality is related but different. I agree that patent quality is awful, but there's only so much an examiner can do to influence that. Attorneys have basically gamed the system to write vague legalese that's patentable but basically useless. And to paraphase a supervisor I knew at the USPTO, "Just because it's stupid doesn't mean that it's not patentable". I can't reject them if it meets the legal standards but is stupid.
Anyhow, I think there might be a random sort feature that can do what you want in the USPTO's public search (no time to check, though): https://www.uspto.gov/patents/search/patent-public-search
>If you go to a hospital that lacks the resources to provide proper treatment
I don't have the energy to diffuse false analogies. We're not talking about a hospital.
> Ideally the patent system is not so complex that it itself requires as much or more study to be expert in than the actual subjects of the patents
Unfortunately, "patent law" is a complex body of laws, legal decisions, and specialized procedures large enough to be its own distinct specialization for lawyers. While it's not impossible to become an expert in it without years of study, it is definitely not possible to be excellent at it.
Just to put it in perspective, the Manual of Patent Examining Procedure alone weighs in at over 4K pages of text.
https://www.uspto.gov/web/offices/pac/mpep/index.html
These patent trolls are greedy, extractive, and contribute nothing to society while wasting vast public and private legal resources.
Fuck. Them. Excellent work to the entire litigation team at Cloudflare.
Heard an interesting counterpoint to this from a patent attorney. In the IP ecosystem patent trolls serve as a sort of check on the big companies - the apex predators - to stop them from willfully infringing on your patents and then bankrupting you in litigation.
While you as a startup may not have the resources to go after them in court; your IP assets in the hands of a competent and aggressive patent troll could be a very big problem for Big Co.
So in that sense they are also kind of like a parasite that infects the apex predators who eat tainted meat.
Don't think I've ever worked for a startup that had any patents whatsoever. I think I consulted with one IIRC, and they folded largely due to their hyperfocus on tech to the detriment of building something people actually wanted to pay for. Filing a patent was probably a symptom of that problem.
Its more like smaller public companies trying to keep bigger public companies in check.
That kind of reminds me of people that short stock. Nearly everyone hates them, but they do provide a check on companies that are doing something bad.
Nice idea, except no one you mentioned spends their time doing patents. It's just big companies who are told by consultants to beef up their patent portfolio, and when they fail like Caspian, the remains are snatched up by bottom feeders who go around harassing others, preferably of course startups and others with no real resources.
Are these patent trolls doing anything that normal companies with patents that try to monetize them don't do?
it's what they don't do. a troll doesn't play any role in developing the tech they hold patents for, they just extract rent when someone stumbles into a similar solution
if a company doesn't develop products, but they actively license their patents to those that do, that's still patents working as intended, and not trolling. they're still helping to get the tech developed, rather than stifling it
(i think there are a lot of problems with software patents even when used as intended by real companies. mainly, they last too long)
I dunno, this line of reasoning doesn’t feel right to me. A company making products did develop the technology. They were awarded a patent. That patent was an asset. That asset was sold presumably for the benefit of the people behind the original company. That the resulting asset owner wasn’t the originator doesn’t feel like it should make any difference here?
Software patents are a scourge, I’m just not sure the reasoning there holds.
> Software patents are a scourge,
The reason is because they aren't being used as they were intended: patents are _supposed_ to be a way to give inventors/entrepreneurs a window to build a market with their idea. Let's say that you have some truly amazing invention that frobnicates foos 50x faster than anyone else, and you plan to take it to market. What would prevent the likes of Amazon from copying your idea with all the resources at their disposal? Patents.
Patents as an asset is exactly the problem. Your entire first paragraph is built on this faulted perspective - the assumption that how we actually use patents is aligned with how they were designed to be used. They are supposed to foster small businesses, not destroy them.
Software patents are a scourge only because patents as a whole have become a scourge.
> The reason is because they aren't being used as they were intended: patents are _supposed_ to be a way to give inventors/entrepreneurs a window to build a market with their idea.
If I invent something, I should surely be able to license its production if I don’t want to be in the production game myself. The alternative reduces to the absurd very quickly. If I invent a better system for making ball bearings, it’s not reasonable to say I should only benefit from it if I then personally raise the capital and experience to start a ball bearing manufacturing plant.
I personally agree with this, but its more difficult to delineate. I suppose the key is that the patent is being used.
from a strict logic perspective, you're right.
The issue is widespread bad behavior from patent trolls, given that the cost of mass filing patent infringement claims that barely apply is so much lower than the expected settlement, and the cost of a successful defense is likely higher than the request settlement. The incentive is to get a portfolio of overly broad patents and then shake down almost entirely unrelated companies.
For sure, the whole thing sucks
if a company sells the patent to a "troll", but retains a license as part of the deal, i would consider that to be working as intended. it's basically a way to outsource the legal protection
if a company sells it to a broker, and it eventually gets traded or licensed to a company that develops it, i'd also consider that working as intended
if patents keep finding their way to companies that have no intention to either develop it themselves, or license it to others, and keep suing companies that do develop things, i'd consider it a failure of the system
pharma patents get traded to non-developers all the time, but pharma patents mostly do their job of incentivizing innovation. there's still flaws, but the troll problem isn't a big issue in that space
> no intention [to] license it to others
The companies that are doing the suing here are — as I understand it here — are suing to force a licensing deal.
the issue is that there's no knowledge transfer from the patent holder to the developer, in these cases. there's no causal link from the patent to the development
the (forced) licensing deal comes after the development, and hinders it. and it's not to protect development of a related idea, either
> That patent was an asset.
That line of thinking is the problem. A patent is intended as a protection to spur development, not an asset to be traded.
The spirit of a patent is to protect a novel solution while a company develops and monetizes their innovation. It keeps bigger fish with deeper pockets from quickly copying your invention and monetizing it before you.
What's happened however is that Large companies with deep pockets are filing patents for anything and everything they can. These patents generally come from their R&D efforts but are not necessarily linked to any product specifically. They're also usually unenforceable junk that wouldn't hold up in court.
The value of these junk patents isn't in the viability to be developed into a product, rather their value is that it will take time and money to invalidate them in court.
When these companies are hit with a lawsuit for violating someone else's patent, their defense is to counter sue with as many junk patents as possible. The purpose of the counter suit is to make a settlement preferable to the protracted legal fight necessary to invalidate all of the junk patents. It's the path of least expense. You could argue this allows large companies to steal innovations from smaller players by forcing cross licensing agreements.
Often these patent portfolios are transferred to companies with no interest in developing products or protecting their business. These companies sole purpose are to weaponize the patents, they're Patent Trolls.
Using the same strategy as companies with defensive patent portfolios, Patent Trolls seek to extract settlements (extort money) from companies by suing them with all the junk patents they can. The patent trolls are immune to counter suit because they produce nothing. Thus companies must either invalidate each junk patent or settle. Often settling is the path of least expense.
>Are these patent trolls doing anything that normal companies with patents that try to monetize them don't do?
The important distinction here, in my opinion, is that investors bought a dead company along with it's IP for the explicit purpose of suing companies as that was their profit motive.
Had there been an existing company that was actively building/selling routers, then yes they would have been using the patents as intended - to protect their business. In this case the company who owns the patents, was using them in a weaponized fashion.
The two normal arguments are:
1. Patent trolls don't actually produce anything. They just extract rent from other companies.
2. The patents they choose tend to be extremely bad -- overly broad, should never have been granted, had prior art, the tech never existed, .... They use the fact that they're able to sue cheaply to bully people into settling on bogus claims.
Point (1) doesn't seem bad to me. It's kind of like how truck driving is separate from truck insurance. Having specialists capable of monetizing patents allows, in theory, inventors to invent and immediately sell for estimated lifetime patent value, minus a discount associated with the troll's costs and desired profits. Without trolls, in theory, you'd have fewer inventors because they'd also need to be/hire experts in marketing, litigation, ....
Point (2) is the one that bothers me the most, and my impression is that it's a very common problem.
Oh, and to your question, most companies use patents for mutually assured destruction and as a form of signalling that important people should want to work there, not to directly monetize. Monetizing patents is less common.
The argument against your argument in (1) is that if the incentive is to patent and sell to someone who will not market the patented invention either, it still isn't promoting the development of the product. It is actually _hindering_ the development of the product, because now whoever does develop the product has to pay an additional tax. Its literally antithetical to the concept of patents (I am _assuming_ they exist to spur R&D development primarily).
Another argument against your argument in (1), is to allow the scenario to exist only where the purchaser of the patent can prove they are marketing and selling it. That is still not ideal imho, but at least it eliminates outright patent trolls.
HN is I think particularly sensitive because it has a lot of programmers and product development folks, who know that a good idea or even plan on its own isn't very valuable. I'd guess most of us have more good ideas floating around than we'll ever have the time or money to develop on our own. Its the execution and delivery of good ideas that is valuable; patents in our eyes make the easy part easier and the hard part harder.
You would hope companies have patents based on something actually innovative. For software this is never the case. I think all software patents are bs.
No, but the argument would be that normal companies are doing something that patent trolls are: selling a product besides patents
yes
This is great. I do worry that a future more sinister malicious patent troll could read all the wonderful strategy Cloudflare used and work around them. Hopefully Cloudflare legal team got stronger!
Kudos to the likes of Cloudflare and (yesteryears’) Newegg that fought these trolls.
I shudder at the thought of how many of the existing legacy industries outside the computer space are still riddled with these patent portfolio companies :(
> I do worry that a future more sinister malicious patent troll could read all the wonderful strategy
The "good" news is that patent trolling is, more or less by definition, a get-rich-quick scheme - they want to make a lot of money by sending a few dozen letters every year. It does not attract people who are interested in anything approaching due diligence.
But also, the whole point of all of this is to get the trolls to leave Cloudflare alone, right? This is a very deliberate strategy; this announcement says "don't try that stuff here ... but feel free to try Cisco or Juniper instead."
Hopefully the powers that be will look at it from a national security perspective, in that other countries do not respect US copyright law and may be pulling ahead
copyrights are different from patents.
Copyright, patents, it doesn't matter. It's all IP and our enemies do not respect it. We need to move forward with that reality.
The US used to ignore IP laws when we were an underdog.
Patents are explicitly open for anyone to see. I don't know that we need more help there: you can get a product banned from import if someone uses your patent without recompense.
As someone in a place without pure software patents (algorithms can't be patented, but software/hardware combination systems can be), I'm willing to let US users use an overseas hosted instance instead of locally running it.
Though keeping US entities from importing copies against US patents isn't really something I could stop.
Why should they respect it? Software patents are and have always been a bad idea, blatant parasitism. They should never have been established, must never be taken seriously, and ought to be abolished.
The excerpts from the Borchers testimony are a riot.
> The responsible business people in this business actually sit down and talk to folks before they sue them, fair?
> Fair.
> And you don't do that, do you, sir?
> No.
I'm not a fan of Cloudflare in general. I think "Browser Integrity Check" is banal malware, the McAfee of the Web 2.0 era. But this? I love this. Settling with a patent troll out of court is cowardly.
I've read the article but I'm not sure I understand :
1. Why / how did sable give up its patent portfolio? It's handwaved as "lots of post trial stuff" but what's the nutshell of it? Is it because they're marked invalid? Is it punitive ruling? Something else?
2. There were 4 patents brought up against cloud flare, but sable gave up "its entire portfolio". Does that mean these 4 were their entire portfolio? Or did they have to give up patents outside of suit itself? If so, how and why? Did sable hang up the hat as a business?
Reading between the lines, my uneducated guess is that Sable knew they were going out of business either way and had to chose between paying ALL of Cloudflare's legal fees (possibly in the millions) or paying a token amount and giving up their (now or soon-to-be worthless) patents. The latter results in fewer financial loses for Sable and makes for excellent Cloudflare PR.
Edit: Also, it's entirely likely that Sable still made a tidy profit overall when it settled with the other big networking companies and decided to quit while they were ahead.
There's a picture of the "Dedication to the Public and Royalty Free License Agreement between Sable and Cloudflare" at the end of the article. [1]
Not a lawyer, but it seems to be part of the court ruling. Maybe CF didn't see a chance to get their costs back and made a deal so Sable needed to only pay a part, but also release the patents?
[1] https://cf-assets.www.cloudflare.com/slt3lc6tev37/4rpPZkNJBZ...
Sable's patents are from a company that stopped operations in 2006, so most patents are probably from well before then, and likely either expired or will very soon.
Could it be that the Cloudflare victory would basically give anyone in the future a very strong case to fight Sable with?
And so this portfolio of patents has lost most of its value because of that?
Maybe Cloudflare agreed to reduced damages in exchange for this?
I agree it's unclear.
Take a look at the legal doctrine of collateral estoppel. Once a party gets its day in court on a specific issue of fact, it can't keep relitigating that issue in later legal actions. It's possible that Cloudflare was the first to take Sable's claims all the way to a verdict (versus settling early), so Sable might have finally gotten its day in court.
https://en.wikipedia.org/wiki/Collateral_estoppel
Did Sable give up ALL its patents, or only the patents involved in the Cloudflare case? The picture of the document refers to the "Sable Patents", which I would suspect are defined in the context of the court case and therefore are only the ones relevant to that case?
Good on ya!
> the Western District of Texas against patent trolls
That means they had really good lawyers.
I had a friend that lived in that area, many moons ago.
He showed me a few of their local newspapers. They were filled with stories about "plucky innovators," fighting against "corporate vested interests."
It seems they have a fairly well-prepped jury pool, thereabouts.
Why are patent trolls allowed to exist? A company that only holds patents and does no productive job with them (research, production, ...) should not be allowed to exist. It stifles development and innovation for the short-lived monetary gain of a few people.
The naive explanation is that it helps inventors, because speculative investors (the trolls!) buy up patents.
One analogy is pharma research. Rights for a promising candidate molecule are purchased by "big pharma" and they will do the grunt work to validate it and extract the big money from its therapeutic value.
Substitute "FDA market authorization after successful clinical trials" with "that infamous East Texas court district and picking the right targets" (picking a too big target might backfire, picking a too small doesn't really worth the costs, etc.)
Of course the questions are: does this really help inventors? do inventors need help? is it good for society that inventors get help? is the cost of helping inventors this way not unreasonable to the economy? and even if the cost is "low", how fucking fair is it that a lot of businesses are using a given invention but only a lucky few get dragged to court? can we do better? what kind of people patent trolls are? what do they do with the money?
Yeah, I think pharma is the really tricky case.
I worked at a small biotech company whose business model was (in part) to do early stage drug discovery research and then sell promising leads to bigger companies, who would take the leads through the FDA approval process. Actually taking a drug through to approval is a $1 billion+ endeavor (with a high probability that it just won't work; e.g. stage 3 trials just fail). Small companies cannot do this.
So a naive solution like "don't allow patents to be sold" actually restricts a bunch of reasonable businesses.
Its a pure failure of the Patent office issuing dubious patents.
The patent office is financially encouraged to keep issuing patents no matter the quality because it keeps the patent fees and those are payed by the applicants. The patent office seems to be protected financially from issuing bad patents as well (I can't find any record of them being sued by companies that have licensed patents that have been invalidated).
Its gotten a little better with the Alice ruling.
https://en.wikipedia.org/wiki/Alice_Corp._v._CLS_Bank_Intern...
The patent laws does not require such thing. If it were, there may be some unforseen consequences.
For example, during the late 1800s, a number of companies bandied together to pool their patents together for a commercially viable sewing machine. No single company had been able to develop and file patents that resulted in a working sewing machine. As such, they pooled the patents and negotiated a portion of royalties for everyone who contributed. That would probably have been set up as its own legal entity. With a requirement to be an operating company, such a legal vehicle would not have worked.
You could argue that such an entity is considered “productive”, but then you would have to define what that means and write it into the law. Any lawsuit involving patents would require demonstrating that.
Another example is trademarks. In order to have a registered trademark, you must show that it is in active use, and it is distinct. That means that in order to keep a registered trademark, you must sue anyone who is infringing upon it.
There is an indie author who came up on a litrpg genre concept combining it with a post-apocalypse setting. His book exploded upon the niche, progressive fantasy scene. People loved the idea and other authors wrote books for it. The original author tried to brand it and protect it with a registered trademark. Because the term had rapidly genericized, that author started sending cease & desist letters to other authors, because he was required to in order to keep the registered trademark.
I don’t know if he knew he had do that when he registered it, but doing so drained the goodwill he had in the community. Progressive fantasy is a small indie community, and the authors who can, gather at Dragoncon to talk, exchange ideas. This is similar to sending cease and desist to your neighbors. You will quickly find yourself locked out of the community.
I am thinking of the inventor of the bear suit. Making something to protect yourself from a grizzly bear seems like it has low value for society. It is also this off the wall perspective that allowed him to invent a gel that can absorb heat (probably a non-Newtonian fluid). If we’re trying to protect the livelihood of an indie inventor like that, would a requirement to demonstrate productivity help the Bear Suit inventor? Or would it have a chilling effect?
It’s an unfortunate byproduct of allowing patents to be bought and sold. Let’s say you had a patent: you worked hard on your invention and you deserve to reap the financial benefits of it. But you do not have the legal resources to protect your right as the inventor. It feels fair and reasonable to me that you can sell your patent to a third party to license and protect as they see fit, so you can reap some financial reward.
Now, how do you make sure that these companies buying patents don’t become trolls? I don’t think it’s fair to require them to use the patent, because that limits who the inventor can sell to. Personally I think the way IP lawsuits are filed and considered needs significant reform.
We could require someone to use it - get rid of submarine patents.
Submarine patents is a different issue, effectively ended by changes in 2000 that require (most) patent applications to be published, and changes in 1995 that changed the term of patents to start from date of filing rather than date of issuance. There could possibly be a few unpublished patent applications from before 1995 that are still in the examination process; but case law from 2005 [1][2] makes it difficult to enforce patents if there has been 'unreasonable and unjustified' delay in the claims, and I'd suspect it would be hard to justify a delay of 30 years.
[1] http://cafc.uscourts.gov/opinions-orders/04-1451.pdf
[2] https://www.pinsentmasons.com/out-law/news/appeals-court-con...
Then you get will into issues of what use actually is. What is a reasonable timeline for filing a patent, and getting it to market? What is a slow and methodical development program vs. footdragging? What if the market for your product doesn't support profitable operation for your company, but someone else claims they can do it?
IMO patents should not be transferable. And maybe they shouldn't be assignable to corporate entities, only to people. Multiple people at once if they all contributed to the invention.
This would massively disenfranchise small inventors, and force all inventive work into large companies. There is no reason that the person who does the inventing should also be the person developing and selling a product.
It is weird and unfortunate that the longstanding deficiencies with patent law (chiefly: issuing patents for things that are too obvious or numerous) are being blamed on transferability of property rights. It’s the same broken intuition as over regulating housing construction and then blaming high housing costs on ownership by Chinese nationals.
In a perfect world this is arbitrage. Arbitrage helps making markets more efficient. However we don't live in a perfect world. Judgment is too expensive and risky. If it were quick, cheap and safe then patent trolls won't have the chance to do extortion. They would be limited to ... um... arbitrage!
I really wish this settlement included disclosing what the other trolled parties ("including Cisco, Fortinet, Check Point, SonicWall, and Juniper Networks") paid.
Could someone explain to me why it was decided that Sable will release the patents to the public?
With the verdict in-hand, Sable was probably voluntold by Cloudflare.
If Cloudflare thought they had a shot at recovering costs, $225k and a patent-portfolio could be substantially less than whatever Cloudflare (or their insurance) had paid in defense-costs.
They had those patents only to sue other companies and get money, now some of those patents were invalidated by prior art and to Sable are essentially toilet paper. The action is unlikely to be goodwill, more likely admitting defeat and closing the patent troll company.
Could a part of the motivation perhaps be quick, clean liquidation, before any of the companies who settled before cloudflare chose resistance might try to claw back some of the settlement?
Cloudflare has negotiating power. They would prefer to give up some of the legal cost recoup in exchange for the public crucifixion of the trolling firm. It's intentionally painting a very scary picture of what happens when you sue Cloudflare, as a deterrent.
As I read this, all but one of Sable's patent claims got invalidated in an IPR (a patent proceeding), and the last one got invalidated by a jury at trial. When your patents have no claims left, you aren't doing anything by releasing the patents to the public. It's been defanged anyway.
So they can't use them to sue anyone else ever again. Basically they're hosed.
In a sane law system, the existence of a company as a mere "box of patents" without any real product currently or previously on the market would be illegal, and these patent trolls won't exist...
Where would you draw a line for "any real product" ? ARM for example doesn't actually produce any "real" (physical) product, but they certainly do research and produce technology for other companies to build products on.
There's a lot of "on paper" companies around the world who actually do produce novel technologies even if they don't themselves create the end product, but instead sell their inventions to other parties.
I don't think they should be illegal... companies that don't "produce" anything are useful for lots of different legitimate reasons. But the bar for suing for damages should be a lot higher than just, "we happen to own the patents."
I consider this a victory for creativity, freedom and technological progress. Let the entrepreneurs innovate and execute without fear of legal suffocation!
Good news! There should be a rule that you have to use a patent in X years (much less than the lifetime) so its harder to do this behavior of hoarding a patent.
So Cisco, Fortinet, Check Point, SonicWall, and Juniper Networks paid millions to Sable. Sable paid $225k to Cloudflare, and won't use them again against anyone.
Sounds like they don't need to. Well played Sable. Enjoy your money.
I really wish we could publicly shame the people behind these abuses or provide some other incentive to correct bad behavior other than speeding-ticket sized fines.
In other news, as an investor, this tells me Cloudflare is technologically ahead of the other older companies who apparently were not sure they could defend against the claims.
> I really wish we could publicly shame the people behind these abuses or provide some other incentive to correct bad behavior other than speeding-ticket sized fines.
Right? This seems like out-and-out fraud to me.
>In other news, as an investor, this tells me Cloudflare is technologically ahead of the other older companies who apparently were not sure they could defend against the claims.
That feels like a highly specious takeaway from this court case. Companies settle against trolls because litigation isn't free to fight. It can make very good financial sense (and even be encouraged by investors who don't want to see a company in the courts for years, as Cloudflare was.)
I would be highly interested to see the breakdown of what it cost in manhours, fees, prizes to Project Jengo, etc. versus the payout from Sable to fight this particular case for Cloudflare, and whether they even came close to breaking even just on this case alone. Likely their decision somewhat hinged on an estimate of what it might cost to settle all other patent disputes in the future, and the belief that fighting this case is actually saving them much more money down the line (but how much?).
On the flip side, there's some napkin math to be done about the costs saved by any future patent trolls who are averted by going all scorched earth this time around...
> I really wish we could publicly shame the people behind these abuses or provide some other incentive to correct bad behavior other than speeding-ticket sized fines.
They are beyond shame, believe me. There have already been TV news segments about how their "place of business" in West Texas is just a PO Box.
Cloudflare's redeemed themselves, bigtime.
A lot of patent trolls have no assets, and don't own anything except the patents they're currently milking. Then they go out of business, and there's nothing to sue. Sable apparently made the mistake of building up a portfolio and living on.
> Proving invalidity to a jury is hard. The burden on the defendant is high: Cloudflare needed to prove by clear and convincing evidence that claim 25 is invalid. And, proving it by describing how the claim is obvious in light of the prior art is complicated.
You're not kidding.
> Sable’s damages expert, Stephen Dell, told the jury that Sable was owed somewhere between $25 million and $94.2 million in damages.
"damages experts" == nice work if you can get it. The damage expert in the Apple v. Samsung trial that I went to was paid $2 million. "How much are you getting paid?" is always one of the first things they get asked on cross-examination.
> Sable has agreed to dedicate its entire patent portfolio to the public. This means that Sable will tell the U.S. Patent and Trademark Office that it gives up all of its legal rights to its patent portfolio
Left unsaid is whether this includes anything other than the patents that they already lost on.
Anyhow: great work, Cloudflare.
Someone messed with the wrong guy.
If you don't mind the language, the first minute of https://www.youtube.com/watch?v=rLLt9bnRdlE comes to mind for how to deal with incompetent trolls. Comedy gold.
> Sable agreed to pay Cloudflare $225,000, ... and to dedicate its patents to the public, ensuring that Sable can never again assert them against another company.
Makes me wonder if Cloudflare could have sued to "life the corporate veil" and go after the people who owned / operated the company. (IE, sue them so they loose their homes.)
Also makes me wonder if this is in the playbook the next time a patent troll comes sniffing around.
Somewhat related: In MA, to fight NIMBY-ism, we passed a law that people suing new housing developments can be forced to put up a deposit, without requiring proof that the case has merit. I wonder if a similar law could help with patent trolls: IE, making it easier that the plantiff put up a deposit when suing for violating their patent.
Has Cloudflare stated anywhere how much their defense cost them (or their insurance)?
What does "to the public" mean in this instance? Are they going to an open source patent pool or something?
From TFA: "Sable has agreed to dedicate its entire patent portfolio to the public. This means that Sable will tell the U.S. Patent and Trademark Office that it gives up all of its legal rights to its patent portfolio. Sable can never again use these patents to sue for infringement; they can never again use these patents to try to make a quick buck."
> Are they going to an open source patent pool or something?
All patents are "open for public access" [1]. And once they age past their "expiration date" (currently twenty years from earliest date of filing) they become "public property".
What Sable is doing is giving up the ability to restrict others based on the patents content's before those patents would normally have expired anyway. So in effect they are having the patents "expire early" -- which makes the contents of each become "public property".
[1] https://www.uspto.gov/patents/search
Are there useful patents (i.e. worth using) in the Sable portfolio, or is it all trivial bullshit and obsolete hardware?
Thank you Cloudflare (there, I said it for you)
Hum... Doesn't clouldfare have patents of their own? Don't they enforce them? Did they turn them to the public domain? You have to love hypocrites.
I don't know, do they?
There's an important difference between patenting something that you've invented and built, and a patent troll which has done neither.
The patent troll buys patents from inventors and then spend money enforcing it. Not much different from Cloudfare paying salaries to the inventors to become the patent holders and then enforcing it against third-parties.
Tech patents exist because companies like Clouldflare want to because they make money with them (suing people). If companies like Cloudfare did want all tech patents to be gone, they would be gone and no patent troll would be able to do anything about.
And they try lure you with $5.000 to do the work to get them off the hook? They are cheap and bunch hypocrites.
Do you have any evidence of Cloudflare suing people for violating their patents. Seems like you'd be able to back up this claim since it's a core component of your argument.
Also, your reasoning seems to leave out a world of possibilities for why someone would hold a patent - its worth looking up the thinking around defensive patent portfolios.
These exist for a few reasons.... patents might be strategically filed to:
* have prior art on the record to keep a market open... e.g. preventing a competitor from monopolizing a space.
* have patents available for counter-suit against competitors suing over patent violation of some bit of tech that uses both.
* impress investors
* provide recognition to employees. At least in the US patents are filed by individuals, and the rights of the patent are then assigned to the company. Granted patents usually come with bonuses, as well as a nice resume padding that helps the engineers involved get higher salaries in the future.
> Doesn't clouldfare have patents of their own?
Looks like it. Not all patents are the same - sometimes a patent is erroneously granted for something that is not a novel invention. The judge and jury ruled that the patents involved in this case were in that category... and therefore invalid patents.
There is no hypocrisy in holding patents (presumably ones you believe are valid) while pointing out that some other patents are invalid. I don't understand how this could equate to hypocrisy in any scenario short of the patent holder declaring all patents except theirs must be invalid on the principle that all patents are bad.
> Don't they enforce them?
Feel free to prove me wrong, but I've never seen anything about Cloudflare going after people for patent violations. I believe they subscribe to the modern tech patent strategy of having a big patent portfolio that only really gets used as part of a counter-suit if someone sues them for patent infringement.
Additionally, I presume Cloudflare's patents are related to the tech they develop and sell, which is categorically and qualitatively different than a law firm that does literally nothing of value buying up old patents and suing everyone who has ever used a word that also is present in the patent.
Given that the usage, purpose, and means of obtaining a patent are different between cloudflare and the troll - I don't understand how a hypocrisy claim can be leveled here... it defies all reason and logic to do so.
patent trolls have a special place in hell, next to the boiler room
Well, it's nice to know that Sable's entire portfolio is going into the public domain, it's a shame that the likely 50-100 other shell companies owned by this troll still have an arsenal of useless, but incredibly complicated, patents to use to extort money.
A just world would involve piercing the corporate veil and imposing personal consequences on the owner of this company.
Patents should have a triviality clause in them, so if you can prove that they're trivial to create and implement and be thus invalid if they are.
On one hand, you have patents where someone needed to do thousands of experiments, often costly, years of research to invent some kind of procedure to do X and thus should have some protections from others just taking the implementation and doing it cheaper, because they don't have the development costs. On the other, you can patent "Page down button on the keyboard moves the screen down one full page (A4) instead of one screen size"
> Patents should have a triviality clause in them, so if you can prove that they're trivial to create and implement and be thus invalid if they are.
That's already there (https://www.law.cornell.edu/uscode/text/35/103)
> A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.
The problem is that unless the USPTO can find the requisite publications to prove the "obvious" part above from the statute, that then knocking down the resulting issued patent in a court case can be a very expensive effort.
> On the other, you can patent "Page down button on the keyboard moves the screen down one full page (A4) instead of one screen size"
Applicant's get patents because the USPTO can't find the publications necessary to prove they do not deserve to get the patent (there's also lack of time problems that I'm ignoring at the moment).
For your premise, often the reason why "Page Down moves by 'printed page'" might get patented is the lack of any findable publication of anything stating such. The USPTO examiner's don't have the ability to just say "but this is the way it works....", they have to find some publication, somewhere, that said "this is the way it works...".
For things like "how much movement 'PageDown' means", finding publications that state "how much" is extremely difficult.
> For things like "how much movement 'PageDown' means", finding publications that state "how much" is extremely difficult.
Yes .. because it's too trivial to write down.
Exactly. But to "prove" it in the USPTO process, they need that "written down" item. And if it is never "written down" because it is too trivial to write down, then the USPTO' examiner's hand are very much tied.
It is really sad to see kost companies refused to fight. Congrats on that one Cloudflare, may that serve as an example to destroy those grifters.
You can see why, though. Even in this case where they thoroughly won, and got damages, the damages were just $225K, and they probably spent millions on legal fees, employee/founder time, etc.
Ultimately, the American legal system is pretty broken. If someone brings a frivolous lawsuit against you, and you defend yourself in court, nearly 100% of the time you’ll be losing money, often a lot of money. This is the core reason why patent trolls exist, why companies normally settle out of court - it’s cheaper to do so.
A few states have passed laws to ban abusers from the legal system:
https://en.wikipedia.org/wiki/Vexatious_litigation#United_St...
How much does it cost to argue in court that a particular entity is an abuser though? Someone has to be willing to cover those costs up front, otherwise people will just keep settling if they don't want to go through that process.
It's not just cost, it's cost x uncertainty of outcome. A settlement is very tempting from cost x uncertainty alone. But it also has other merits: when the rich, powerful incumbent gives in and settles, the fragile thrifty upstart won't see the slightest chance of winning and either beg the troll for an affordable licence (but they won't get a good offer) or look for a completely different line of business. To the incumbent, the settlement is a fee paid for moat-as-a-service provided by the troll.
Usually a "vexatious litigant" is not one of these patent trolls, but some nut job who spends his days at the courthouse.
If more companies let patent trolls go to court their repeated losses would fall under the first part of California's definition, but since they settle, trolls are technically not even litigants.
I couldn't tell from the article but it seems the $225k was a settlement, and the release of all patents was additionally part of the settlement - I doubt the court could have awarded that directly. So they took $225k + the release of the patents, and I assume that the trolls would only have agreed to that if they felt the court awarded cash value would have been significantly higher.
But if we'd given in to one of these trolls, others would have targetted us.
Agreed, it’s a lose-lose situation really. But the reason most companies just settle is that going to trial is so expensive, and the American legal system allows these frivolous lawsuits while generally awarding either no compensatory damages, or damages far below the cost of the defence.
At Google I did a piece of research, along with a statistician, of whether it's better to settle or fight.
"Better" would mean you don't get sued as much in the future, because you're a hard target and not easy money.
They haven't released this study, AFAIK.
your definition of "better" implies the results of the study, although you did not specifically say it.
That's because it's not published, plus a conclusion without any supporting data and methodology is pretty worthless.