As readers of this blog likely know, especially if you read this post, Cloudflare has been sued by a dangerous new breed of patent troll, Blackbird Technologies, asserting a very old and very vague patent. And we know we are not alone in being frustrated about the way that such patent trolls inhibit the growth of innovative companies. Cloudflare is asking for your help in this effort, and we’re putting our money where our mouth is.
Patent trolls take advantage of a system they assume is tilted in their favor, where they can take vague technology patents issued years ago and apply them as broadly as imaginable to the latest technology. And they do this without the limitations of having to show the original patent holder would have actually exercised the patent, because most of them don’t, at all. Patent trolls think they can sit back and pick off settlements from companies because their lawsuits are a nuisance and the costs of defending those suits are considerable.
Changing this dynamic and leveling the playing field is going to require an entirely new approach. Fighting such strong, though perverse, economic incentives is going to require a groundswell. It calls for a large and active group of innovative folks who are willing to join the cause of helping expose the weakness in the patents held by these patent trolls. Exposing the weakness of these patents means finding prior art that demonstrates the patents were issued improperly and working to have the USPTO invalidate those patents before they can be weaponized against legitimate companies that are working to innovate, to provide a livelihood to their employees and their families, and to make good products.
At Cloudflare, we’re lucky to have the best and most loyal customers on the Internet, a whole bunch of fans who are ridiculously smart and don’t take kindly to lazy trolls who try to take advantage by exploiting bugs in the judicial system. And of course, we’re more than happy to give them a bit of a nudge.
Awards for Prior Art
Cloudflare is committing up to $50,000 to support a search for prior art that can be used to invalidate patents held by Blackbird Tech…all of them. By filing 107 lawsuits against companies since September 2014, Blackbird has demonstrated that it is going to use its patents to sue productive companies. And patent trolls often target newer and more innovative companies, so it is important to investigate and research to discover whether prior art existed on the Blackbird patents and to keep them from filing additional cases against us or against other companies.
By “prior art,” we mean evidence that the patented technology was in use or known before the inventor conceived of or filed for his patent. Often, prior art consists of academic papers, technical websites describing current technology, other patents/patent applications—or, really, any other evidence showing that the technology was in use or known. For example, for the ‘335 patent, we are only asking for evidence that pre-dates the filing date of the patent—July 21, 1998. We will also accept information and arguments which invalidate Blackbird patents such as a showing of obviousness or material defects in the patent application. And, for our purposes, the “patented technology” is defined by the claims that are listed at the end of the ’355 patent.
The $50,000 will fund two separate awards.
The first bounty (up to $20,000) is for prior art which reads on the patent Blackbird is using to sue Cloudflare, the ‘335 patent. $10,000 is guaranteed and will be divided among prior art submissions that raise substantive questions on the ‘335 patent. The remaining $10,000 will be used to compensate prior art submissions that Cloudflare uses as evidence in an invalidation procedure at the USPTO or invalidation at trial. The latest date of prior art on the ‘335 patent would be July 20, 1998.
The larger bounty (up to $30,000) will be spread among those submitting substantial prior art which reads on any of the 34 other outstanding Blackbird patents or their 3 in-flight patent applications and could lead to the invalidation of these dubious patents. Cloudflare will pay the second bounty to people who submit relevant and substantive prior art which, in Cloudflare’s opinion, reads on any other Blackbird patent. The money will be distributed based on the quality of the prior art, the perceived value of the patent, and the extent to which the evidence is used in a proceeding to invalidate one of the Blackbird patents.
We will maintain a list of all the Blackbird patents at cloudflare.com/blackbirdpatents/. The list will provide the number of each patent, the relevant latest date of prior art, and will list germane already-identified prior art. We will update the list periodically as we get new information submitted.
How to participate
You may submit your suggestion for prior art either through cloudflare.com/priorartsearch/. Cloudflare’s experts and attorneys will review each submission for its value in invalidating each patent. Again, the money will be awarded based on relevance and usefulness. Cloudflare will keep the award will be open until the end of our litigation, but we may start making initial partial awards as early as within 90 days.
In order to be eligible for any bounty you need to be the first person to submit a particular piece of prior art and the prior art must not be known to Cloudflare (e.g., the prior art must not be listed on the face of the Blackbird patent or in the patent prosecution’s history). For each submission of prior art, you will need to give us your name and contact information. In your submission, you will need to document:
- Your name and email address
- The number of the Blackbird patent at issue
- What the prior art is.
- Where you found it.
- When it was first publicly available.
- Where it was first publicly available.
- Why you think it reads on a Blackbird’s patent.
- Any other information which you think is helpful to our review.
Big hint: don’t go to Google’s patent page and click on the prior art button, we’ve already done that. We will then use our outside patent counsel to evaluate the responses and divide the award based on relevance and usefulness. See here cloudflare.com/priorartrules for official rules and details.
Patent trolls like Blackbird have demonstrated that they can’t be trusted to act responsibly or take the public good into account when asserting patents against practicing companies. Making clear that its patents are invalid, or significantly narrower than Blackbird is likely to assert, is another way we can limit Blackbird’s ability to create economic harm.