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."
I was wondering if Cisco or Juniper payed them anything to back off or just threaten them the same thing that Cloudflare actually did to them.
The fact that they thought they had a winnable case again Cloudflare makes me think that others actually paid up ... or that the troll was just getting desperate to finally earn anything.
I don't agree its always a get-rich-quick scheme, it can also be seen as a passive income stream. Its just another example of parasitic rent-seeking on which our economy is based.
They basically have a stranglehold on patents for haptic feedback in gaming for some unfathomable reason and they will have it for the foreseeable future.
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
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.
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.
This comment is an example of why people are hesitant to publicly do good things. If a company donates to open source and writes a blog post about it, but it's not "enough," then they get a bunch of hate. If they never donated to open source in the first place, then there'd be no hate. Likewise, I've never heard of a company paying random people on the Internet to help fight patent trolls, yet Cloudflare did, won, neutralized the patents, and it's still not enough.
Thanks. I upvoted your comment because it's a valid point that I had not considered that was stated without aggression. Many of the other comments here strike me as particularly aggressive or making false assumptions about what I believe and who I am.
The capitalistic view is that a company low-balled folks with knowledge to win a case.
Both views are valid. It mostly depends on the intent of the company and you can't know that for sure. As their interest in that program is quite obvious, it's understandable that some people interpret this in two ways.
Now it's not like they forced people into that program. You are free to not participate.
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.
> 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.
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.
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.
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.
"I could contribute to open source project that benefits millions, but I'm better off writing Java for a one mid sized company. I'm struck how corporate funded bounties for OS contributions are."
Valid stance to take but not exactly unique. That's just the world we are living in.
Note that this is the kind of reasoning that would also stop resources like wikipedia from existing. Why do for free what could be done for (good) pay instead? So it feels like you're telling people to not participate because a good payday is more important than doing good.
That reasoning might work for your dayjob (why put in effort that your employer doesn't reward?), but this is not an employment situation, that line of reasoning simply does not apply to volunteer work: these folks did not put in the work to draw a check, they put in the work to combat patent trolling. And it worked: everyone who helped won.
But then some folks even won an extra prize without any expectation of a reward beyond the one they did it for. How nice is that?
The fascinating thing for me about this comment, and why I find myself weirdly obsessing over it, is how wrong it is about human nature and why we do things. There’s a small set of things we get paid for. There are a lot of other things we do, and even derive value from, that we don’t get paid anything for. Does that mean they have no value? Absolutely not. Every job I’ve taken is not the one that, on paper, I’d make the most from. Every term sheet I’ve accepted didn’t have the highest implied market cap. Am I an idiot? Perhaps. But it’s worked out. Lots of reasons people do things. Sometimes it’s about money. But those tend to be the most boring. Certainly in the short/medium term. I used to think missions were bullshit. Now I can’t imagine how you could ever possibly run a company without one.
PS - we killed a patent troll. A bunch of you helped. How cool is that??! Thank you.
I think you're extrapolating a lot from my comment that wasn't intended.
You should try searching for prior art some time to get an idea about why I'm not happy about the payment being low. Patent examining's a real grind, and by far the hardest job I've ever done. It's boring and extremely time consuming. I doubt many people do it for pleasure or a higher calling.
If some people want to volunteer to find invalidating prior art, more power to them. I won't be joining them, though.
If it was about paying an examiner to dig up prior art, they could just do that privately. Crowdsourcing like this is typically much cheaper, but putting money aside, many people would be happy to help simply out of principal. There are lots of people who want to see patent trolls eliminated and they would spend their own time to do it without expecting to be paid for it.
If you would only consider doing this as a form of employment, so be it, but many others are happy to do this just to try and make the world a better place for us all.
Just a big company pretending to be the little guy being picked on so they play up the little guy with no resources except crowd sourcing aspect. Some people that don't value their time but want to help the little guy that's "protecting the web".
People here have an interesting duality of wanting the big 200k+ faang job, but also expect you to work for free on opensource projects.
The payments could increase in the future as this approach becomes more successful and the ROI is better understood. Before this most companies would give into the trolls. Now there may be an increasing incentive to fight back. Few companies have the time, capital and governance freedom to do so.
I have this stubborn cognitive bias that CloudFlare is a good thing, I think it’s because OG hackers from HN started it: jgrahamc and that lot are the real deal.
Time and time again it’s like: “CloydFlare discovers way to be evil that even Google didn’t figure out! News at 10.”
Dear Jesus, all I want for Hanukah is that fly.io doesn’t end up like that.
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.
>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?
Great Q and I don't know the answer. My best guess from the article is that Sable effectively agreed to settle rather than continue with post-trial legal procedures (whatever those are) that would have been necessary:
>A jury verdict is not the end of the road in a patent case ... there are post-trial motions, appeals, and other procedural hurdles to jump through before a case is truly over. Tired from the fight, and smarting from its loss, Sable decided it wanted to throw in the towel and end the fight once and for all.
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?
I read it as “giving up the patents in the portfolio that they acquired from that other company in 2006”.
Still not very clear to me either. Probably intentional, since CF seems to want to send the message that “mess with us and in the end you’ll give up all your patents somehow”
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.
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.
But in the settlement they got to ask for something the court can't grant them. Cloudflare could have settled in court and got more money but this is better, no?
I think parent comment is referring to the other companies before Cloudflare who settled out of court with Sable, not Cloudflare who just destroyed them in court.
Yeah, hats off to them. That was a great read, and I certainly appreciate their efforts to give these kinds of "businesses" the absolute kicking they deserve.
Somebody or some organisation had to start standing up to patent trolls for the situation to change and kudos to Cloudflare for choosing to be that organisation. Hopefully it will encourage others to do likewise.
I think companies small and large should pay for an insurance that will obliterate patent trolls with legal fees. They often win by bullying individual small companies. But if there’s a collective response then maybe they can’t get so far?
It used to be the Eastern District of Texas, with Justice Rodney Gilstrap. I never went to Marshall or Tyler, but I knew a lot of people who did. They're small towns.
I don't know when it shifted to the Western District. Waco is not nearly as rural as East Texas; it's halfway between Dallas and Austin.
Plaintiffs file in Waco to get Albright -- if they filed in Austin, they wouldn't get him. Then they make a motion to move it to Austin, which he grants if he can based on schedules, and if it can move there, he still presides over it.
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.
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?
I'm convinced that most of the problems inherent in patents can be resolved by replacing the monopoly they grant with compulsory licensing. It's important for patent holders to get paid of course, but the monopoly aspect stifles the very innovation that patents are supposed to protect. The monopoly is also bad for consumers because competition will be scarce, disincentivizing reasonable pricing.
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).
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.
> Now, how do you make sure that these companies buying patents don’t become trolls?
The problem with patents is that they prevent use by 3rd-parties, either by the license being too expensive or by the patentee refusing to grant one. The patentee actually using their patent has no bearing on this. The real solution to this mess is to make patent licensing compulsory. The patent office could decide that in lieu of a contract staying otherwise, a patentee is guaranteed 10% of profits or 5% of production costs, whichever is greater. Patents used to provide ongoing services could be 1% of profits. Non-commercial users should be exempt.
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!
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.
Readit News
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 :(
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."
The fact that they thought they had a winnable case again Cloudflare makes me think that others actually paid up ... or that the troll was just getting desperate to finally earn anything.
https://techcrunch.com/2024/02/14/meta-settles-lawsuit-over-...
They basically have a stranglehold on patents for haptic feedback in gaming for some unfathomable reason and they will have it for the foreseeable future.
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.
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.
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.
[0] (the original no longer loads for me, so here's an archive) https://web.archive.org/web/20230105070226/https://blog.jaib...
Both views are valid. It mostly depends on the intent of the company and you can't know that for sure. As their interest in that program is quite obvious, it's understandable that some people interpret this in two ways.
Now it's not like they forced people into that program. You are free to not participate.
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Dead Comment
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.
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...
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.
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
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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.
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...
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!)
Valid stance to take but not exactly unique. That's just the world we are living in.
That reasoning might work for your dayjob (why put in effort that your employer doesn't reward?), but this is not an employment situation, that line of reasoning simply does not apply to volunteer work: these folks did not put in the work to draw a check, they put in the work to combat patent trolling. And it worked: everyone who helped won.
But then some folks even won an extra prize without any expectation of a reward beyond the one they did it for. How nice is that?
PS - we killed a patent troll. A bunch of you helped. How cool is that??! Thank you.
You should try searching for prior art some time to get an idea about why I'm not happy about the payment being low. Patent examining's a real grind, and by far the hardest job I've ever done. It's boring and extremely time consuming. I doubt many people do it for pleasure or a higher calling.
If some people want to volunteer to find invalidating prior art, more power to them. I won't be joining them, though.
If you would only consider doing this as a form of employment, so be it, but many others are happy to do this just to try and make the world a better place for us all.
People here have an interesting duality of wanting the big 200k+ faang job, but also expect you to work for free on opensource projects.
The market sets the price, regardless of what we personally think is "fair".
Time and time again it’s like: “CloydFlare discovers way to be evil that even Google didn’t figure out! News at 10.”
Dear Jesus, all I want for Hanukah is that fly.io doesn’t end up like that.
Dead Comment
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?
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.
In the worst case, a bankruptcy could end up clawing back any "tidy profits" that were previously paid out to company owners.
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...
Great Q and I don't know the answer. My best guess from the article is that Sable effectively agreed to settle rather than continue with post-trial legal procedures (whatever those are) that would have been necessary:
>A jury verdict is not the end of the road in a patent case ... there are post-trial motions, appeals, and other procedural hurdles to jump through before a case is truly over. Tired from the fight, and smarting from its loss, Sable decided it wanted to throw in the towel and end the fight once and for all.
Still not very clear to me either. Probably intentional, since CF seems to want to send the message that “mess with us and in the end you’ll give up all your patents somehow”
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.
https://en.wikipedia.org/wiki/Collateral_estoppel
> 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.
Somebody or some organisation had to start standing up to patent trolls for the situation to change and kudos to Cloudflare for choosing to be that organisation. Hopefully it will encourage others to do likewise.
> 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.
I don't know when it shifted to the Western District. Waco is not nearly as rural as East Texas; it's halfway between Dallas and Austin.
Plaintiffs file in Waco to get Albright -- if they filed in Austin, they wouldn't get him. Then they make a motion to move it to Austin, which he grants if he can based on schedules, and if it can move there, he still presides over it.
Those papers were a hoot, though…
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.
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?
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...
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.
The problem with patents is that they prevent use by 3rd-parties, either by the license being too expensive or by the patentee refusing to grant one. The patentee actually using their patent has no bearing on this. The real solution to this mess is to make patent licensing compulsory. The patent office could decide that in lieu of a contract staying otherwise, a patentee is guaranteed 10% of profits or 5% of production costs, whichever is greater. Patents used to provide ongoing services could be 1% of profits. Non-commercial users should be exempt.
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.
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.