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

https://techcrunch.com/2017/07/11/the-hunted-becomes-the-hunter-how-cloudflares-fight-with-a-patent-troll-could-alter-the-game/

by Stanleyc23 • 9 years ago

723 273 9 years ago

techcrunch.com

ovi256• 9 years ago

I've noticed a Techcrunch comment that makes this fight about software patents and states that forbiding them would be a good solution. I think that's a very wrong view to take. The software patent fight is worth fighting, but do not conflate the two issues. Abuse by patent trolls or non-practicing entities can happen even without software patents.

The law patch that shuts down patent trolls will have no effect on software patents, and vice-versa.

sqeaky5• 9 years ago

I don't think many do conflate the two, I think most people just don't see value in software patents.

Software is great because it has no cost to copy, so when someone creates a new algorithm it can be put in use everywhere applicable rapidly. This pace of advancement is so awesomely powerful that many do not appreciate how much positive change it can bring or how different the world was just a few years ago. An advancement in algorithms becomes and advancement for humanity pretty quickly.

Software patents are the exact opposite of this.

I will take it one step further and claim that patents on the whole are bad. I don't think they do what most Americans think they do in terms of incentivizing inventors or protecting small business.

EDIT - Also software is already covered by copyright, why does this IP deserve two kinds of protection and most other IP gets 1 or 0 kinds of protection.

frenchie4111• 9 years ago

I agree. Even "hardware" patents are too hard to defend to really be worth it most of the time (ex: fidget cube and other chinese kickstarter clones). You can't rely on patents to ensure defensibility to your business model, so they really just end up being money-sinks.

felipeko• 9 years ago

Just a nitpick, by definition what does not have protection is not IP.

int_19h• 9 years ago

It's not clear to me why such a hard distinction is drawn between software and hardware patents.

The usual argument for this separation is that "software patents are just math", but then aren't hardware patents are just physics (which, ultimately, is also just math)?

It feels like there's no clear line here, and whatever benefits, if any, are to be derived from patents, they apply equally to either side of it. Basically, either it's a net benefit to society, and then both kinds are valid; or it's a net drain on society, and then we should just get rid of them altogether. Or maybe set the bar for what is patentable much higher wrt to novelty and value (but, again whether it's hardware or software feels irrelevant).

pnw_hazor8• 9 years ago

You copyright your source code. You patent your engineering innovations.

The ease of duplicating software based inventions is an argument why patents are important for such inventions.

Many tech startup companies that would have been steam rolled by IBM, and friends, have been protected by their patent portfolios.

kuschku4• 9 years ago

Software patents should have the same requirements as real patents: you have to provide the full knowledge required to create the concept that is patented in them.

You want to patent sticky scrolling? Then put the entire source code required for it into the patent.

You want to patent your AI tech? Then put the entire code into the patent.

Additionally, we should make sure that trade secrets are not protected in any way, and decompiling code to find out what it does, and replicate it, is legal, as long as it doesn’t violate patents.

These measures would provide reasonable measures for companies wanting to protect their secret sauce, but also ensure that this technology is all public and available for research, and that after a few years it becomes available to competitors.

Otherwise we’ll end up with Google, Amazon, etc piling up knowledge and patents, without ever giving anything back to society.

And if you now try to argue with Google being "good", please take a look at ReCaptcha, where they take captcha associations given by users, but never publish the resulting recognition data (which then could be used by open source projects or researchers), or look at Android, where Google has now closed everything they could.

CalChris2• 9 years ago

Then put the entire source code required for it into the patent

Some do. But patents already have an enablement requirement. This means that they must teach in sufficient detail for a person skilled in the art to carry out the claimed invention. That's what the whole Detailed description of the invention section is. Skip the claims and read the description. You might want the code; me, I want the design doc. That section should be clear and if it isn't, chances are it isn't enabling.

If you don't enable, you'll probably get an office action (rejection) and if you don't (lazy examiner), you'll definitely lose when the patent gets challenged.

curun1r4• 9 years ago

we should make sure that trade secrets are not protected in any way

That's a little extreme. Trade secrets still need protection from outright theft (e.g. Waymo's allegations against Lewandowski) by those that get them as a part of their job. Similarly, trade secrets acquired through any other illegal act (breaking and entering, hacking, corporate espionage, etc) should also be protected. I agree that trade secrets arrived at through reverse engineering should be okay, but that's very different from saying that they should receive protection in any way.

pnw_hazor8• 9 years ago

All US patents have the same standard. Among other things, they must enable one of ordinary skill in the art to practice the claimed invention without undue experimentation.

For SW patents, if your invention uses machine learning but is not inventing a new kind of machine learning, there is no need to describe how the ML package works. It is a black box.

Similarly, a gadget patent does not need to describe the metallurgy necessary to make aluminum sheet metal or how to make plastic.

The same standard applies to biotech patents. Though, some biotech patents require proof or disclosure of experimental results (e.g., gene sequence listings, etc.) this is because some bio inventions would be very difficult to reproduce without the extra information.

Trade secrets are not protected from independent discovery. Reverse engineering is generally fine, though it may violate your license or the DCMA depending on the details.

unityByFreedom2• 9 years ago

Software is already protected by copyright. It was never meant to be patented. In fact, I believe you're not even supposed to use the word algorithm in your patents. You have to say something else, like system.

Software patents are pointless and the only reason we still have them is it takes Congress forever to catch up with innovation. Patent trolls know this and are capitalizing on the period where they can shake down others while they still can.

realusername• 9 years ago

Copyright is enough, software patents do not exist in Europe and it works as well as in the US. I never saw a single patient which I would define myself as justified, most patents are something I could come up myself with in less than an hour of reflexion.

ivanbakel2• 9 years ago

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

ChuckMcM• 9 years ago

I believe they were implying that by going after the firm through legislative attacks, ethics evaluations, and also working to invalidate patents that they were not sued for violating, as opposed to just showing up in court and defending the suit as filed, constitutes "game changing".

I think it would be more accurate to say that they are fighting back more creatively than you might think they could at first glance.

wglb2• 9 years ago

Then perhaps you missed one of the novel ideas Cloudflare is also filing a complaint with the ethics committee. And their talking to reporters.

ivanbakel2• 9 years ago

That's a one-sentence action that's brushed over in the article. I see nothing suggesting it's novel or effective, and I don't have enough knowledge of patent suits to decide that.

CodeWriter23• 9 years ago

The novel approach here will become apparent when CloudFlare makes it crystal clear that Blackbird inadvertently volunteered to be Prenda Law 2.0 with their dissembling contracts ($1 plus "other consideration") intended to skirt the letter of the law/ethical regulations. That being that attorneys can't seek to acquire causes of action.

FussyZeus3• 9 years ago

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

pedrocr• 9 years ago

Patents are not about damages. A patent is a limited-time monopoly to an idea that you can then extract value from. Inventing something, patenting it, and then licensing it out is exactly the business model patents are supposed to enable. Companies that don't make anything are perfectly valid under this model. The real solution is to either make sure prior art and non-obviousness requirements are properly enforced or just dismantle the whole thing as unworkable.

dboreham2• 9 years ago

The real solution is to either make sure prior art and non-obviousness requirements are properly enforced or just dismantle the whole thing as unworkable.

Obviousness is the key issue for me. I suspect most people, even those who work in the technology fields, are not aware that it is considered essentially impossible to prove obviousness (source: I have worked as a consultant on several patent litigation cases). So you have the ridiculous situation that almost everyone in the relevant field believes that almost all patents granted are obvious, but almost no litigation succeeds in finding that same conclusion.

learc832• 9 years ago

A patent is a limited-time monopoly to an idea that you can then extract value from

That's the incentive given to the inventor. In exchange society is supposed to eventually get access to an idea that anyone can make use of.

There's a huge breakdown with this system though--the majority of software patents aren't written in a way that would allow someone to reproduce them. Or as you've pointed out they're so obvious that they would have existed without the patent monopoly grant.

If society isn't benefiting, there's no point.

CobrastanJorji• 9 years ago

Let's say I invent something really useful but also very difficult for an individual to take advantage of, like a new kind of airplane nosecone that shaves 10% off fuel costs for very large airplanes. Now, I'm not in the airplane business, and getting into it would take many, many millions of dollars. Probably the only way for me to make money on this would be to go to Boeing or some similar company and license my patent to them. Boom, I get my millions and everybody's happy.

If I were required to show actual loss, Boeing would see my new patent, just implement it without even bothering to talk to me, and when I tried to sue them, they'd say "you don't make anything, you have no losses," and they'd be right.

FussyZeus3• 9 years ago

I feel like this could be easily covered by an NDA though, and documenting the visit to Boeing. Plus, this is a physical product, I'm speaking more in terms of software patents where the friction to use is much, much lower. Perhaps my idea wouldn't work for general patents, but that's also not what I believe is horribly broken at the moment.

Thanks for the insight either way, great thought.

cstejerean• 9 years ago

You could still sell your patent to an actual airline, and it could then use that patent exclusively and prevent airlines from doing so. In a sufficiently competitive market that might be enough. Boeing might buy your patent to prevent Airbus from using that tech and therefore gaining an advantage. Or if Boeing ignores your patent and just builds that tech anyway then they would expose themselves to future liability if Airbus later buys your patent.

Or you could sell the patent to an existing supplier of airline parts (and I'm sure there are plenty) which can then commercialize it. Or as a last resort if none of the existing players are interested in buying your patent, you could raise funding and open up a shop that manufacturers and sells nosecones, and then sue everyone for lost sales.

Ultimately I think it's much more useful to protect entities that actually make products and give them incentives to bring innovative products to market than it is to protect entities that simply want to invent things and extract fees from others. To me it would be a perfectly acceptable compromise.

adekok2• 9 years ago

Good point. This is why legal issues are complicated. :(

But the counter is that if you're offering the technology for sale, then lack of sales is an actual loss. The thieves could have paid your price, but instead chose to steal it.

At that point, penalties, etc. apply,

jacques_chester4• 9 years ago

The law of remedies is very broad and most of it has roots in Equity, which gives judges broad discretion to make orders against litigants who fail to "come with clean hands".

I am not a lawyer, of course, but I dropped out of law school late enough to realise that you should always consult one before forming opinions about what is and isn't legally plausible.

eridius2• 9 years ago

The trivial answer against that is to say the actual, quantifiable loss is the licensing fees that the plaintiff would have otherwise been able to extract from the defendant.

siliconc0w2• 9 years ago

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

tracker13• 9 years ago

Frankly, if it weren't for the stupidity of the patent system, I don't know that Cloudflare would even have the patents. Has Cloudflare ever initiated patent litigation against anyone?

The fact is that most patents for things that are "invented" but entirely virtually don't really deserve patent protection. Rarely is there significant research, expense or tooling to implement. Patents on software, processes and most extension patents are ridiculous in premise. That's what trade secrets are for.

jgrahamc3• 9 years ago

Has Cloudflare ever initiated patent litigation against anyone?

No, we have not.

siliconc0w2• 9 years ago

Even if the companies only hoard these to defend themselves when they go under their patents get picked up by NPEs. It's like nuclear weapons, MAD kinda works but then a state fails and now you have terrorists with nukes. The answer is disarmament. If you want to enlist the help of the community you should have to pull a Tesla and open your patents or at the very least advocate for the abolishment of software and process patents. By crying foul and appealing to the community Cloudflare, like Blackbird, wants to have it both ways. They continue to advocate for and benefit from the ridiculous status quo but don't want to be subject to it when it inevitably goes awry.

calafrax• 9 years ago

Everyone is a "troll" when they are suing you. When you are suing other people they are thieves stealing your innovation.

These lawyers are doing great work by creating a market that allows innovators to profit from their work even if they don't have the capital to commercialize their innovations themselves.

The incumbents can cry about this but even if they have never sued anyone for infringement their valuations are still based on their portfolios and they still use the threat to suppress competition and when they are over a barrel for cash they will monetize those patents either themselves or by selling to another "troll."

Individual software engineers who invent new technologies deserve to get compensated the same as anyone else for their inventions.

KnoopKnoop• 9 years ago

That's all well and good, but it's impossible to argue that point when people are awarded patents where previous work exists that the patent office failed to investigate enough.

fapjacks• 9 years ago

But these aren't "individual software engineers who invent new technologies", now are they, shill? As stated in the article -- which I'm sure, based on what you've said here, you haven't read -- the "individual software engineer who invented new technology" made his one United States dollar in selling it to these vampires. Get a job.

notyourday8• 9 years ago

It is all about finding a correct pressure point.

Long time ago certain Philadelphia area law firms decided to represent vegan protesters that created a major mess in a couple of high end restaurants.

A certain flamboyant owner of one the restaurants targeted decided to have a good time applying his version of asymmetric warfare. The next partners from those law firm showed up to wine and dine their clients in the establishment, the establishment(s) politely refused the service to the utter horror of the lawyers.

Needless to say, the foie gras won...

[Edit: spelling]

tareqak2• 9 years ago

This account seems more like poor planning on part of the lawyers. I would assume representing a client would imply a sort of temporary boycott on the part of the lawyers towards the client's legal adversary.

learc832• 9 years ago

In a large firm, a lawyer isn't going to go through the active cases for every partner in the firm when choosing where to take clients for dinner.

frandroid3• 9 years ago

That's pretty weak.

PhasmaFelis4• 9 years ago

How so?

draw_down3• 9 years ago

Mmm, charming.

shmerl• 9 years ago

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

dsfyu404ed• 9 years ago

By prison you mean jobs in state government, right?

Welcome to Massachusetts.

draw_down3• 9 years ago

They're way too rich for that to ever actually happen. I agree, though.

subhrm• 9 years ago

Long live patents !

sctb• 9 years ago

Please comment civilly and substantively on Hacker News or not at all.

https://news.ycombinator.com/newswelcome.html

https://news.ycombinator.com/newsguidelines.html

kelukelugames• 9 years ago

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

snug• 9 years ago

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

mabbo• 9 years ago

“[Is Blackbird] doing anything thing that is illegal or unethical?” continues Cheng. “For the most part, it’s unethical. But it’s probably not illegal.”

If it's not illegal, more work needs to be done to make it illegal. Inventors always have avenues, moreso today than ever before.

adekok2• 9 years ago

While I agree it should likely be illegal, the solution to bad laws isn't more laws.

A better solution would be to

* do better examination of patents so that BS ones don't get issued

* allow third-parties to invalidate patents by showing prior art to the patent office for a nominal fee

* punish patent applicants who know about, or should have known about prior art

* if a patent is invalidated, force them to return all of the money they were paid for licenses and/or fees

See the lawsuits around the "Happy Birthday" song for similar problems:

http://www.latimes.com/local/lanow/la-me-ln-happy-birthday-l...

IIRC, the settlement came about because the plaintiffs were able to prove that the song had been published and put in the public domain. They had found a copy of a songbook which was the definitive proof.

How did they find the songbook? They were given a scanned copy in discovery... with most things clear, and the date suspiciously blurred. After a few months of looking, they found a print copy which confirmed their suspicions.

i.e. it looks like Warner Brothers deliberately fudged the evidence. If the plaintiffs hadn't noticed, or hadn't been able to find a print copy, people would still be paying license fees.

When there is no punishment for lawyers who break the law, I think that "ignorance of the law" is an excuse. There is just no way that ignorance isn't a defence for me, while at the same time the lawyers use the law to attack me, and aren't punished for their violations.

criddell4• 9 years ago

allow third-parties to invalidate patents by showing prior art to the patent office for a nominal fee

I think there should be a punitive part to this as well. If you apply for a patent that is later invalidated, then those that licensed the patent should be made repaid. And yes there should be a fee for trying to invalidate a patent, but there should also be a reward if they are successful.

Paul-ish• 9 years ago

do better examination of patents so that BS ones don't get issued

The patent in this case is 18 years old. Some claim things are stricter now, others don't.

allow third-parties to invalidate patents by showing prior art to the patent office for a nominal fee

This is possible[1] and the article mentions cloudflare is doing it.

[1] https://en.wikipedia.org/wiki/Reexamination

digitalzombie• 9 years ago

If it's not illegal, more work needs to be done to make it illegal.

President Obama tried to reform patent trolls but Mitch McConell stopped that. Most of the patent troll shell corp are in Eastern Texas.

the_watcher• 9 years ago

Did he? I don't remember that, but maybe I missed it. Also, the relationship between Eastern Texas and patent trolls is related to the branch of the Fifth Circuit court, whose justices are appointed by the President (currently, 3 Obama appointees, 2 GW Bush appointees, 1 Clinton appointee, and one Reagan appointee), not anything that Mitch McConnell has any influence over.

danschumann• 9 years ago

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

oskarth2• 9 years ago

So-called non-practicing entities — or holders of a patent for a process or product that they don’t plan to develop — often use them to sue companies that would sooner settle rather than pay what can add up to $1 million by the time a case reaches a courtroom.

Why on earth aren't non-practicing entity patent lawsuits outlawed? Seems like a no-brainer, and I can't imagine these firms being big enough to have any seriously lobbying power.

dangrossman• 9 years ago

Why on earth aren't non-practicing entity patent lawsuits outlawed?

The NPE category includes universities and researchers. Many inventions can't be brought to market without significant capital, and not all inventors are interested in commercializing their inventions themselves. Just because you're not personally going to build a billion dollar chip fabrication facility to implement the new silicon etching process your research group patented shouldn't prevent you from licensing it to Intel and suing someone else that uses your invention without a license, IMO.

oskarth2• 9 years ago

The NPE category includes universities and researchers.

Good point. Aren't they more likely to develop patents rather than buy them, though? Or are there more edge cases missing?

raverbashing• 9 years ago

But an exception could be made for these

Or another idea, make patents non transferrable.

lightedman2• 9 years ago

"The NPE category includes universities and researchers."

That seems utterly stupid. Universities and researchers by definition are constantly practicing, what's what academia is all about.

coldpie• 9 years ago

Just because you're not personally going to build a billion dollar chip fabrication facility to implement the new silicon etching process your research group patented shouldn't prevent you from licensing it to Intel and suing someone else that uses your invention without a license, IMO.

I completely disagree. You're now squatting on a useful technique and preventing someone else from using it even if they invented it in parallel without your help. That is extremely unethical.

kbenson• 9 years ago

Because there's a Grey area. As an inventor, you might develop something for the express purpose of licensing it to other companies, or sell it to a company that does that for a business for a nice up front sum.

The problem is when patents last too long or thing are patented that are obvious and should have failed that criteria.

patrickmay2• 9 years ago

The problem is when patents last too long or thing are patented that are obvious and should have failed that criteria.

This. Particularly in software, if someone who doesn't know about the patent comes up with the idea independently, that should be prima facie evidence that the patent doesn't meet the criteria of not being obvious.

Of course, the lack of knowledge of the patent may be subject to challenge, but this would eliminate a lot of ridiculous patents.

pbhjpbhj7• 9 years ago

IMO the system needs to work on getting a better deal for the public in exchange for granting the monopoly that a patent holder gets.

For example after 5 years the renewal fees could relate to gross revenue from any device including that patent, or actual licensing fees. I like the former as it seems harder to work around [though you'll get components sold as products to companies residing in the same factory, I guess] and means that patents that don't contribute considerably to revenue will be dropped. This means people can still profit from useful inventions.

You could also underpin renewal fees with an exponentially growing base cost.

mcbits• 9 years ago

I think that would have a significant impact on how research universities are funded. The University of Wisconsin recently won a $200m patent lawsuit against Apple, coincidentally (?) just as they were losing $200m of state funding.

blowski• 9 years ago

IANAL.

However, if a university invents something, it can sell that patent. It won't itself commercialise it. Therefore they are a non-practising entity, but you can see how that encourages innovation.

criddell4• 9 years ago

Wouldn't that basically eliminate groups like the MPEG? They don't create software or hardware, but they license the technology to everybody else. Should they be forced to compete with their licensees?

corobo2• 9 years ago

There should be a "sh*t or get off the pot" clause in patents, if you've not done anything with the patent in the 5 years since filing for it, it gets opened up to the public. In that case the MPEG group has done something (licensed it out to people doing something with it) so would be fine

If you have, standard patent rules

jgrahamc3• 9 years ago

More detail on what we are doing from three blog posts:

Standing Up to a Dangerous New Breed of Patent Troll https://blog.cloudflare.com/standing-up-to-a-dangerous-new-b...

Project Jengo https://blog.cloudflare.com/project-jengo/

Patent Troll Battle Update: Doubling Down on Project Jengo https://blog.cloudflare.com/patent-troll-battle-update-doubl...

saagarjha4• 9 years ago

Umm…I think you mean Jango Fett, not "Jengo" Fett, in the caption for the first image in the second article.

acobster• 9 years ago

The idea of using the name Jango is probably patented.

0x1BADBABE• 9 years ago

additionally:

The Patent scam intro by Austin Meyer https://www.youtube.com/watch?v=sG9UMMq2dz4

eru2• 9 years ago

[...] Blackbird combines both a law firm and intellectual property rights holder into a single entity. In doing so, they remove legal fees from their cost structure and can bring lawsuits of potentially dubious merit without having to bear any meaningful cost.

Don't the lawyers have opportunity costs?

chii• 9 years ago

if they couldn't really do anything else, then this is the best opportinity they are going to get!

josaka• 9 years ago

This argument by in the article is silly. One of the founders of Blackbird came from Kirkland. Kirkland's profit per partner is $4m per year in the last year. So the Blackbird lawyer is forgoing the opporunity to participate in this income to pursue this case (and may others). (Granted, income is not distributed equally in most firms, but to imply that the next best alternative for these lawyers is zero income doesn't help the article's credibility.)

awkward• 9 years ago

Opportunity costs don't get written on a ledger. Raising the risk to starting a patent troll company might be strategic in stopping other lawyers from starting, but it won't win this case.

redm• 9 years ago

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

SaturateDK• 9 years ago

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

tracker13• 9 years ago

I think that this is absolutely brilliant. I've been against the patent of generalistic ideas, and basic processes for a very long time. Anything in software should not really be patentable, unless there is a concrete implementation of an invention, it's not an invention, it's a set of instructions.

Let software work under trade secrets, but not patents. Anyone can implement something they think through. It's usually a clear example of a need. That said, I think the types of patent trolling law firms such as this deserve every bit of backlash against them that they get.

mjevans• 9 years ago

Software is already covered by /copyright/ law. It does not need patents.

MatthewWilkes2• 9 years ago

Copyright covers implementations, not ideas. I have no moral objection to truly novel inventions in computer science being protected by patents. An innovative search algorithm, a compression scheme, etc. Its shit when MP3s and GIFs were encumbered, but they were genuine inventions whose sharing publicly genuinely advanced the public good.

The kind the patent trolls use are not innovative in the same way. We need a stricter definition of obvious to one versed in the art, not a ban throughout the field.

greedy_buffer• 9 years ago

Interestingly, Blackbird has a patent portfolio that is not exclusive to software, although Cloudflare intends to invalidate them all.

protomyth2• 9 years ago

although Cloudflare intends to invalidate them all.

Scorched earth doesn’t allow for half measures, plus leaving them with any patents would leave them with hope and we can’t have that.

pas• 9 years ago

Someone comes up with a very amazing compression, chemical, medicine, foreign language learning trick? (Not like H.264, which is basically a patent on a lot of prior art [1], because they put the "video" word in the title instead of data.) Yeah, sure, you get a patent on that. But it has to be so outlandishly out of the box innovative, that it should be pretty much in the same league as Einstein's tensor equations compared to Newton's F= G (M1 M2) / r^2 .

It shouldn't be the next iterative step in the field, that comes naturally in the context, after looking at the latest few interesting papers. It should be a leap, an invention to change the world.

Innovation, research/development/engineering, the process of understanding problems and (partially) solving them itself become a lot better understood as we see fundamental sciences, theoretical limits, progress over time, as we have a better mental toolkit, full of amazingly powerful concepts (information, data, power consumption, space-time trade offs, threat model, probability/statistics/risk/incentives/microeconomics).

Or, of course, make the term shorter and field based (based on the speed of adaptation and change of ideas/technologies/methods in fields), and/or mandate reasonable licencing fees (and licensing frameworks).

[1] https://news.ycombinator.com/item?id=2349585

JumpCrisscross5• 9 years ago

I've used Latham & Watkins. Just made a call to let a partner there know what I think about his firm's alumna and how it colors my opinion of him and his firm.

Encourage everyone to check with your firm's General Counsel about this. If you use Latham, or Kirkland or Weil, encourage your GC to reach out and make your views heard. It's despicable that these lawyers are harassing their firms' former and potential clients.

cortesoft• 9 years ago

What exactly are they supposed to do about that, though? They left the firm?

Bartweiss5• 9 years ago

Well, law firms commonly do some amount of pro bono work as a public service and reputation builder. I'd be interested to see a firm or two donate legal support to smaller companies fighting trolls - it'd be a show of good faith and might immediately knock out low-powered trolls.

Newegg has showed what happens when these cases actually get fought, and that's something a firm could offer to build popularity and support.

JumpCrisscross5• 9 years ago

It's less about them doing something ex post facto and more that this reflects on the type of people Latham hires and retains. If a bunch of people leaving an investment bank run out and commit fraud, the bank doesn't (necessarily) look bad for failing to stop it. It looks bad by association. We assume, rightly or wrongly, likeness in peoples' voluntary associations.

atomical• 9 years ago

Law is a very social profession. It could have some impact.

seibelj2• 9 years ago

Lawyers I know are extremely risk adverse. It starts with law school, where it is the default, safe path for a lot of people who think "I want to be really important and make money" but have a degree in English, philosophy, etc. and don't know how to translate that into a high powered job without more schooling.

Then the grind of law school, where they all obsess over class rank, who gets the best internship, who gets the best job. It's a very reputation based industry, where even trying to switch to another firm could get you blackballed if done improperly and without tact.

If a lot of tech people make a big stink about this to the partners, it will quickly make this path dangerous for employees and it will stop fast.

Bartweiss5• 9 years ago

This is an interesting point.

Obviously these firms don't have much power over their ex-attorneys, but a culture that opposed this sort of thing might be a disincentive to strike out as a troll (what if you want to go back to respectable practice some day?). And, more dramatically, a firm that wanted to clear its name could easily volunteer some hours to fighting trolls - that's the sort of thing that could make an immediate difference.

JumpCrisscross5• 9 years ago

There's also the plain-and-simple risk that lawyers at a firm I've handed the keys to know a lot about my company. That they may use this to profit against me, in a personal capacity, is all kinds of wrong. It's akin to an investment firm, doing confidential diligence on Company X, having an employee, who may or may not have been on the diligence team, run out and start a hedge fund that shorts Company X.

It's not, by itself, necessarily unethical. But it smells fishy and deserves to be dug into.

kevin_thibedeau• 9 years ago

All it requires is DAs with enough backbone to start enforcing barratry laws against abusive lawyers.

protomyth2• 9 years ago

Let’s say that a firm’s alumna of a firm you have used sue you for patent infringement. Is there some insider-style laws that may be violated?

monochromatic• 9 years ago

It could potentially violate conflict rules. (The idea being that the lawyer might have been privy to your secret information while his old firm represented you.)

mankash666• 9 years ago

Disagree! Both ethics and the law make it clear that the (negative) actions of former employees have no bearing on the institution.

For instance, yelling at the average american for Donald Trump colluding with Russia is both pointless, and detrimental to the average person.

TeMPOraL3• 9 years ago

Like all forms of punishment, it isn't (or at least shouldn't be) about hurting the people involved after the fact - it's about raising perceived costs of a deed so it doesn't get committed again in the future.

draw_down3• 9 years ago

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

unityByFreedom2• 9 years ago

Blackbird is a new, especially dangerous breed of patent troll... Blackbird combines both a law firm and intellectual property rights holder into a single entity. In doing so, they remove legal fees from their cost structure and can bring lawsuits of potentially dubious merit without having to bear any meaningful cost

That's not new. It's exactly what Intellectual Ventures was (or is?) doing.

fhrow4484• 9 years ago

What is the state of "anti-patent trolls" laws in different state? I know for instance Washington state has a law like this effective since July 2015 [1][2]. What is it like in other states, specifically California?

[1] http://www.atg.wa.gov/news/news-releases/attorney-general-s-...

[2] http://app.leg.wa.gov/RCW/default.aspx?cite=19.350&full=true

pnw_hazor8• 9 years ago

The bad faith element is almost impossible to prove. It certainly isn't met in the Cloudflare case.

Certainly, experienced patent litigators are very unlikely to file a case that would be considered in bad faith.

avodonosov3• 9 years ago

I've read the patent. But what part of CloudFlare services it claims to cover?

Also, the patent applies the same way to almost any proxy server (ICAP and similar https://en.wikipedia.org/wiki/Internet_Content_Adaptation_Pr...)

arikrak• 9 years ago

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

avodonosov3• 9 years ago

It was late summer night when I noticed that article on HN. I immediately noticed it's organized like a novel - this popular lame style which often annoys me lately:

    Matthew Prince knew what was coming.
    The CEO of Cloudflare, an internet security
    company and content delivery network
    in San Francisco, was behind his desk
    when the emails began to trickle in ...

Was he really behind his desk?

Hesitated a little before posting - am I trying to self-assert by deriding others? But this "novel" article style is some new fashion / cliche which might be interesting to discuss. Let's see what others think.

bubblethink• 9 years ago

The recent WaPo article about Russian interference in the US election where stuff arrived in envelopes with top secret written on them, and people huddling around it, was also off putting.

Zyst• 9 years ago

I like it. I really enjoy the overly dramatic and/or expositional style is something I greatly enjoy in general.

xattt• 9 years ago

It's emulating the style of writing that Wired pioneered in tech. When Joe Blow tries their hand at it, it's overdone and nuances that makes it great are in all the wrong places.

nstart• 9 years ago

It's a matter of personal taste. The only cautionary advice to writers who employ this style would be to tell them that not all exaggerations are equal.

Sitting behind the desk when the email came in is a harmless exaggeration. It doesn't matter if he was really in bed or at dinner. The dramatic embellishment does little or nothing to change the facts or perceptions in a meaningful way.

If it's ok, we can point to NYT's article on Trump and his aides from some time ago. Aides stumbling in the darkness unable to find light switches type line. Something like that is damaging and deserves proof before writing. Doesn't matter which way you lean, that's dangerous waters since that's been written with an intent to alter perceptions in a meaningful way. To cast a group of people as confused and befuddled.

If this article (the TC cloudflare one) was to write about the patent trolls in a dramatic style that vilified them, that too would be wrong. Something like

"In the photo, Freeman can be seen standing on a bridge with a wry smile as if imagining the future in which the lawyers control the game."

Would be very dangerous and should not be encouraged.

Thankfully this article seems to follow a simple expositional style (somewhat third person narrative of cloudflare's perspective) with a little droplet of drama that just enhances the story rather than manipulating perceptions or reality.

mnm1• 9 years ago

Since you asked ... As both a writer and reader, I fucking hate it. I think it's fucking piss-poor writing by journalists who don't know how to be journalists and don't even know how to write an article, all in the name of attracting simple-minded readers with a one of the lamest prose techniques possible. I'm here to read an article about patents. I'm not interested in the opening few paragraphs of a bad novel. If I wanted to read a bad novel, I'd pick up a bad novel. If these "journalists" want to write a novel, then they should do that and stop writing "journalism" articles.

This is one of the worst scourges of online "journalism" and frankly, I'm tired of having to skip the first few paragraphs of every article because I don't want to read some fucking stupid little story over and over again and want to get to the content. What ever happened to traditional journalism, where the facts are laid out at the top and the details come in later? It seems that "journalism" nowadays can't even get that right. If they want to put a stupid story, at least put it at the end where it belongs, where few or none will read it.

You could say this is a little pet peeve of mine. Thanks for asking.

TeMPOraL3• 9 years ago

The reason is simple - they (people responsible for the form of articles, which may not always include the original journalist) don't care about you. They're not here to deliver you value. They're here to extract value from you.

My rule of thumb is simple: I look at a service and ask myself, is what I see a good, efficient way to deliver the value the service says it delivers? If the answer is no, I know that they don't give a shit about delivering value, they're only there to extract it.

In the concrete example of journalism: inverted pyramid, TL;DR of the facts at the top, no useless prose - those are signs of trying to deliver value. Prose, multi-page articles, ads, auto-playing videos (be it ads or "content") - those are signs they don't give a shit about you.

And yes, some may say that companies seek balance between profitability and value. Sure, maybe companies think they do that. But the choices they make matter. If they're making money literally on wasting my time, the most precious resource any human being has, then I don't want to have anything to do with them.

Which is why I don't read the news. The state of the journalism is so bad here, that casual browsing of comment sections of Reddit and HN is a more efficient way to stay up-to-date on the world events than actually reading the articles.

raleighm2• 9 years ago

Yeah, headings merely referencing Updike novels in an article about a patent troll is an annoyance I didn't expect today.

avodonosov3• 9 years ago

Can the Decorator design pattern be considered a prior art?

mgleason_3• 9 years ago

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

pnw_hazor8• 9 years ago

Baloney.

Innovation is also driven by people trying to work around patents or otherwise discover alternative ways to solve problems.

I didn't notice the Amazon One-Click patent slowing innovation down while it was still valid.

Scea91• 9 years ago

Do you feel that there is a difference in innovation between software and other fields?

The obvious next steps you are talking about are usually only obvious in hindsight.

TeMPOraL3• 9 years ago

The difference that comes to my mind is costs. I suspect software "inventions" are usually very cheap to make (a person with a laptop is enough), compared to other industries.

y0ssar1an• 9 years ago

Go Cloudflare Go!

bluejekyll• 9 years ago

Something needs to give on this stuff. It's probably going to be hard to get a significant change done, such as getting rid of software patents (following from no patents on Math).

I've wondered if one way to chip away at them, would be to make Patents non-transferable. This would preserve the intent, to protect the inventors R&D costs, but not allow the patents to be exploited by trolls. This would have the effect of devaluing patents themselves, but it's not clear that patents were ever intended to carry direct value rather they exist to grant temporary monopolies for the inventor to earn back the investment.

anonjuly12• 9 years ago

It’s for this reason that Prince sees Cloudflare’s primary mission as figuring out how to increase Blackbird’s costs. Explains Prince, “We thought, if it’s asymmetric,” because it’s so much cheaper for Blackbird to sue than for a company to defend itself, “how can we make it more symmetric? And every minute that they spend having to defend themselves somewhere else is a minute they aren’t suing us or someone else.”

They should take it a step further and apply the Thiel strategy of finding people with grievances against the founders of the patent troll and support individual lawsuits against them.

tragomaskhalos• 9 years ago

This reminds me of an altercation in the street that my neighbour reported overhearing some years ago:

Aggressive Woman: You need to watch your step, my husband is a criminal lawyer

Woman she was trying to intimidate: (deadpans) Aren't they all ?

corobo2• 9 years ago

I'm hoping their fight actually leads to a defeat rather than a submission. I have faith that Cloudflare will see this through but I also had faith that Carolla would too.

https://www.eff.org/deeplinks/2014/08/good-bad-and-ugly-adam...

bluesign• 9 years ago

Tbh I dont think there is a practical solution for patent trolls.

Patents are basically assets, and they are transferable.

Making then non-transferable is not a solution at all. Basically law firms can represent patent owners.

System needs different validity for patents, which should be set after an evaluation, and can be challenged at the courts.

Putting all patents in the same basket is plain stupid.

drtillberg• 9 years ago

This is a dysfunction in the patent and legal processes that cannot be fixed by even more dysfunctional tactics deployed against the NPE. The rules against champterty (buying a cause of action) have been relaxed considerably to the extent in many jurisdictions of being a dead letter, and the litigation financing industry seems to have a better sound bite.

At least half of the problem is the "American Rule" of rarely shifting legal fees, which if you dig a bit you will find is of recent vintage. Back in time, for example in Massachusetts, there actually is a law for shifting legal fees as costs as a matter of course; the catch is that the fee is very low (even at the time it was enacted) of about $2.50 per case, which partly reflects inflation and partly antagonism toward legal fees.

I wonder whether a compromise solution would be to require a deposit for costs of a percentage of the demand for recovery like 2.5% of $34mm, which post-suit you could figure how to divvy up. That would make the demand more meaningful, and provide a tangible incentive to the plaintiff to think a little harder about pricing low-probability lottery-ticket-type litigation.

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

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