Cloudflare defeats another patent troll with crowd-sourced prior-art army

When it comes to defeating patent trolls with crowd-sourced prior art, Cloudflare is now two-for-two after winning its latest case against Sable Networks. Sable Networks, which owns patents originally given to defunct "flow-based router" company Caspian Networks, sued Cloudflare and five other companies in 2021 alleging a …

[DS999]

More companies should do this

Maybe get together to fund a single prior art search organization, so there is always a fresh stream of patents for amateurs interested in competing for bounties can have a look at! It would probably do better if it was a bit better funded so the bounties can be a bit higher.

[Dan 55]

Re: More companies should do this

Maybe patent offices should do this instead of waving patent applications through.

[DS999]

Re: More companies should do this

While I agere, they don't have incentive to deny patents. In fact, some (at least in the US) have an incentive to approve them. They also aren't subject matter experts down to the level of detail decently sized bounties would get.

I could imagine when some huge company like Google or Apple is fighting some patent troll with billions on the line, offering a bounty of a million per patent or $100K per claim or whatever would attract some of the top people in the field (way better than the patent office could ever hire) to look into on their behalf.

And if they have some guys like that looking and saying "well I was able to invalidate x and y, but z seems pretty solid" then that would inform their decision about whether to settle rather than try to fight it out in court.

[claimed]

Re: More companies should do this

That is so unbelievably easy to fix. Just make fees higher for patents that are denied. If you’ve got a real innovation that you think you can make money on, protect it! If it’s just bullshit, pay more for wasting everyone’s time. If you then want to fight, you’ve got a gold standard patent and free reign to go make money with it, otherwise it can’t be that good and just shut up and increase your marketing spend

[Doctor Syntax]

Re: More companies should do this

Even easier to fix. Make the patent office responsible for both party's costs if the patent is invalidated in court. At the slightest hint of a challenge they're almost certain to find a reason to invalidate it before the costs mount up.

[I could be a dog really]

Re: More companies should do this

So "Little Guy Co." has a genuine patent which is being ripped off by "Big Corp. Inc." and sues them - patent office turns round and invalidates your genuine patent because it doesn't want to risk a claim. So how does that help anyone ?

The only way I can see of avoiding the problem of patenting something with prior art would be to make the applicant liable for not disclosing prior art patents. But then that disadvantages the little guy as the big corporations will have on-staff patent experts who can do the trawling while little guy will either have to do what he can or pay someone more than he can afford to do searches. And in any case, it may well be that a prior art patent isn't filed with the right keywords to find it, or you simply turn up a gazzilion hits which would take you years to read through to see if they are actually even relevant.

[IGotOut]

Re: More companies should do this

@claimed.

The issue have with your idea is it favours the wealthy even more than it does now.

If I come up with a detailed method of creating nuclear fusion with a detailed explanation, but it cost £10,000 to file, it's unlikely to get filed unless I somehow convince someone to fund me. Chances are they may want a cut.

If mega corp files a crap patent for atoms hitting each other in a tube for £10,000 it just the money they made from that days vending machines.

Now take it to court. Like I could ever afford to do that. So mega court wins by default.

That's the real problem with the very broken patent system.

[claimed]

Re: More companies should do this

If it’s novel, truly novel, then little guy isn’t at a disadvantage as if it’s granted then it’s still cheap to file, you just get thwacked if it’s rejected. If they don’t have a backer then they can’t monetize anyway, so should be able to get a backer with patent application, and if your backer is scared off as they think it will be rejected - it isn’t novel!!!

[doublelayer]

Re: More companies should do this

When a system is broken because incentives are bad, you usually can't fix it by flipping the bad incentives to go the other way. If you made fees higher for rejecting patents than accepting them, the incentive is now to reject them. Prior art involves citing something, so it's a little harder, but the patent office has other reasons to reject a patent application, including the obvious idea standard. It would be easy for them to simply stamp every application obvious and wait for someone to challenge them. They won't have a major budget for dealing with challenges, so they'll probably settle with anyone who challenges meaning that your patent is now accepted if you are willing and able to pay a lawyer to file a challenge and rejected otherwise.

That's going to give you no useful patents until you try to patch another bad incentive on top to get rid of that. Usually, something that ends up being a stack of patches to fix the problems of the last patch is not a great option and, if we can redesign it from scratch, we'll get a better result.

[claimed]

Re: More companies should do this

This argument I accept. My suggestion was based on the idea that there are still rules in place for accepting and rejecting, so it’s still possible for little guy to be accepted if it’s a novel idea. I agree it would result in false negatives, but only in cases which are borderline (was my supposition). In my opinion it’s better to err on the side of: someone has probably thought of this, than, no one has thought of this. I don’t think my suggestion would be perfect, but it would be better vs what we have now… I still think that so I won’t back down completely :)

[Anonymous Coward]

Re: More companies should do this

This was always going to be a problem when patents are written in that weird incomprehensible hybrid of legalese and technobabble.

[claimed]

Re: More companies should do this

They could even get together into some kind of office! This kind of work could be funded by the fees paid when new patents come in, in fact, it would be more efficient to do this at the same time and then you wouldn’t have unpredictable workload related to legal cases, and it would only be linked to when funded applications come in.

[Doctor Syntax]

"Lawyers for Sable Networks didn't respond to questions for this story."

Too busy counting their fees. They wouldn't have lost.

[G.Y.]

fix

possible serious fix: a patent application should describe the prior art, PLUS the problem(s) the invention is to solve. This is published immediately. Anyone can then show obviousness (of solution, as of filimng fdate) by commenting online.

[Anonymous Coward]

Re: fix

The situation in Europe:

(1) European patent applications must describe the relevant prior art known to the applicant (Rule 42(1)(b) EPC).

(2) They must disclose the technical problem and its solution (Rule 42(1)(c) EPC).

(3) They are published not immediately but after 18 months (Article 93 EPC).

(4) Anyone can file observations, eg pointing out relevant prior art, arguing against novelty, inventive step or any other patentability requirement (Article 115 EPC). These observation are also made available to the public and, if the application is pending, they must be considered by the examining division.

Third party observations: https://tpo.epo.org/tpo/app/form/about

Inspect published European patent applications or patents, including all reports/opinions issued to the applicant and their replies: register.epo.org

Search for worldwide patent and patent applications, by eg keywords, classification or applicant/inventor name: espacenet.com

Articles and rules of the European Patent Convention (EPC): https://www.epo.org/en/legal/epc

[Anonymous Coward]

Re: fix

It was once considered normal to include a section on prior art in US applications. That fell by the wayside decades ago (along with the philosophy of "why should we grant the applicant these claims?" -- it became "why should we deny clients these claims?").

[Anonymous Coward]

Re: fix

The EPO also requests, but does not require, two-part claims. The first part contains the prior art and the second part contains the novelty. Unfortunately, it is too easy for applicants to argue that their claims are not suitable for two parts. The result is claims that resemble typical US claims -- a long list of clauses that jumble prior-art and novelty together.

[Anonymous Coward]

Re: fix

In my experience you can usually get the applicant to file a two-part claim (the first part -preamble- describing features that are known, and the second part -characterising portion- describing the features which are novel/inventive. Or the examiner can make the amendment themselves.

If not, then it has to be clear from the acknowledgement of the prior art in the description which features are known and which are novel.

[Anonymous Coward]

I guess I should check my gmail, which i never do any more.

I submitted a patent in response to their Jenga initiative many years ago. I wonder if they're holding onto $20k for me? I must have spent from 6pm-3am every day for three weeks, reading and re-reading patent applications back in the day until I found what I thought was a match for the patent they were litigating.

[Anonymous Coward]

Lawyers never lose

It’s the clients that do the losing bit.

[anonymous boring coward]

It's doing a disservice to trolls calling them patent trolls. Patent Slime might be more correct. But then, again, Slime might want to disagree.

[NightFox]

"Patent trolls create what we consider to be an unfair, unjust, and inefficient system that throttles innovation and threatens emerging companies,"

I'd argue that's the creation of a broken patent system; the trolls are merely exploiting it.

[I could be a dog really]

I can't help thinking that any patent system will be open to abuse. It does sound like the US system is broken by design, but even if it weren't, the fundamental issue is that the litigation is cripplingly expensive even if you win - I recall reading a few years back that it could cost you $250,000 (yes, 1/4 million $) if you successfully defended against a patent troll. Lose and the sky's the limit.

Of course,e ven if you fixed the "out of pocket even if you win" part - since you don't know if you'll win or lose until it's too late to decide whether you can afford the other side's costs, it's still risking massive amounts of money to defend a case. And that is why trolls often offer to settle for less than it might cost you so that many outfits will pay up as the least risky/expensive option. And that mean the troll now has more cash to go after someone else, plus is able to "show" that their patent is valid (after all, you coughed up didn't you ?) when attacking the next victim.