Patent Troll Sable Networks Apparently Needs To Learn A Lesson: Cloudflare Wants To Destroy Another Troll

from the never-fight-a-patent-troll-war-against-cloudflare dept

In The Princess Bride, the character of Vizzini famously says: "Ha ha, you fool! You fell victim to one of the classic blunders! The most famous of which is 'never get involved in a land war in Asia,' but only slightly less well-known is this: 'Never go in against a Sicilian when DEATH is on the line.'" I don't know if it's surpassed either of those yet, but quickly moving up the list would be "Never try to patent troll Cloudflare." Apparently, the patent troll Sable Networks has just made exactly that blunder.

About a decade ago, the online retailer Newegg pioneered the strategy of attacking back on patent trolls. The entire patent trolling business model is based on the fact that it is almost always cheaper to settle a patent trolling case than to fight it and win. A full patent trial will cost over a million dollars easily, and sometimes multiples of that. But many patent trolls file a ton of lawsuits, hoping to settle each for well less than what it takes to fight in court. It's a true extortionate scam. Newegg, however, took the long view, and recognized that if it refused to give in and refused to settle, eventually the trolls would realize that it simply wasn't ever worth suing Newegg. Newegg even made "Never Settle" t-shirts to advertise its strategy to trolls. And, eventually, it worked. Though it did involve a few costly patent trials, patent trolls mostly learned to steer clear of Newegg.

A few years ago, Cloudflare got its first patent troll lawsuit, and decided to take Newegg's never settle strategy and kick it up a notch or three. Instead of just saying it wouldn't settle, Cloudflare set out to completely destroy the patent troll who sued it (an operation called Blackbird Technologies). In response to the lawsuit, Cloudflare launched something called Project Jengo, in which it sought to crowdsource prior art not just for the patent used against Cloudflare, but every single patent in Blackbird's portfolio -- and to hand out cash awards to those who found such prior art. It also went after the lawyers at Blackbird for violating legal ethics rules.

Cloudflare's campaign against Blackbird was a huge success. The company easily won in court and Blackbird became a shell of its former self. Prior art was discovered on some of its patents, the firm filed way fewer troll lawsuits, and it appeared that its staff had dwindled.

Patent troll Sable Networks perhaps should have researched all of this before suing Cloudflare over a sketchy patent that Cloudflare doesn't infringe on. However, Sable Networks chose poorly.

Sable Networks and its lawsuit fit neatly within the same troubling trends we were trying to address the first time we launched Project Jengo. Sable is taking ancient, 20-year-old patents and trying to stretch those patents lightyears beyond what they were meant to cover. It has already sued over a dozen technology companies targeting a wide range of different products and services, and by extending its claims to a company like Cloudflare suggests it may next try to stretch its claims to people that merely use routers … namely, anyone that uses the Internet.

We think Sable’s choice to bring these lawsuits on such a tenuous basis should come with some risk related to the underlying merits of its patents and its arguments, so we are sponsoring another prior-art contest seeking submissions to identify prior art for all of Sable’s active patents. We are seeking the help of the Cloudflare community to identify prior art — i.e., evidence that the patented technology was already in use or known before the patent application was filed — that can be used to invalidate Sable’s patents. And we will make it worth your while, by offering $100,000 to be shared by the winners who are successful in finding such prior art.

Again this time, we are committing $100,000 to be split among entrants who provide what we determine to be the most useful prior-art references that can be used in challenging the validity of Sable’s patents. You can submit prior-art references as long as Sable’s case is pending against us (Sable Networks, Inc. v. Cloudflare, Inc., No. 6:21-cv-00261-ADA (W.D. Tex.)), which means until Sable drops the case fully (and with prejudice — meaning Sable can’t re-file later), there’s a settlement, or the case has been resolved by the court and all appeal rights are exhausted.

Every three months for two years or until the case ends, whichever comes first, we will select winners from the submissions to date, and give out a portion of the $100,000 as awards. Once the case ends, we will select final winners from all submissions and award the remaining funds.

Once again, Cloudflare is not just looking to invalidate the four patents Sable asserted against Cloudflare, but all 10 patents Sable currently holds.

The blog post also details the ridiculousness of the lawsuit at issue. Sable Networks picked up the discarded patents of Caspian Networks, a failed router company (that was previously known as Packetcom). As Cloudflare notes, once the current owners of the company decided to go patent troll, they pulled out the usual trolling playbook:

In the first round of litigation, Sable filed, and later promptly settled, eight lawsuits asserting infringement of Sable’s router patents. The defendants in those cases (including Cisco and Juniper Networks) provide a range of Internet services, but they all at least manufacture and sell network equipment.

Interestingly, all of those cases were settled just before Sable would have had to do two things that would have actually put its legal claims to the test: (1) respond to an administrative proceeding before the US Patent & Trademark Office (“USPTO”) challenging the validity of its patents; and (2) attend a hearing before the district court where the judge would have determined the proper interpretation and scope of the patent claims. So Sable filed cookie-cutter cases against eight defendants, waited for the defendants to respond, then settled the cases before meaningfully litigating its claims or facing a binding court or administrative ruling, which may have addressed, or likely undermined, Sable’s overly-broad assertion of those patents.

Shortly after settling the original eight cases earlier this year, Sable turned around and filed six new lawsuits against a new batch of technology companies, this time including Cloudflare. Unlike the earlier named defendants, Cloudflare is not in the business of making or selling routers or switches. Sable’s infringement claim therefore is not a close one, and now it’s picked a defendant that is eager to fight back.

Cloudflare's blog post about this also lays out how these patent troll shakedowns work, and note that after a previous decline (thanks in part to some key Supreme Court cases and the impact of patent reform from Congress a decade ago), it appears that patent trolls are on the rise again:

Patent trolls like Sable proliferate because of a distorted incentive structure fueled by the astronomical costs associated with defending against even bogus patent claims. According to the 2019 Report of the Economic Survey by the American Intellectual Property Law Association, the median litigation cost for defending claims of patent infringement brought by a non-practicing entity through trial and appeal was staggering $4,500,000 for big cases (i.e., cases with more than $25 million at risk). Even for small cases that had less than $1 million at stake, the median defense cost was $750,000.

Knowing that most defendants will settle at a percentage of their expected litigation costs long before infringement claims see the inside of a courtroom, patent trolls see only upside from each additional lawsuit they file. Their business model is built around filing as many lawsuits as possible regardless of the strength of their legal claims, because they know most defendants will pay to settle before the merits of their case are put to the test. They therefore take vague technology patents issued years ago and apply them as broadly as imaginable to new technologies and new companies. Most of these trolls are non-practicing entities who don’t have their own products in the marketplace but merely exist to extract a tax on other companies.

After declining in numbers for a few years, patent lawsuits were up last year about 12% over 2019, and increased activity by non-practicing entities buying patents suggested even further growth among such lawsuits in the future. The Electronic Frontier Foundation observed similar increases in patent troll filings in 2020, highlighted a case where one patent troll decided that the middle of a pandemic was a good time to sue a company that makes COVID-19 tests, and noted that “some patent owners actually saw the rise of the COVID-19 health emergency as a business opportunity.” This trend is showing no signs of slowing down — according to a recent report, there was a 43.3% increase in patent litigation in Q1 of 2021 compared to the same period a year ago, and non-practicing entities had their busiest Q1 since 2015, fueled by the litigation finance industry that is flush with capital.

If you think you can dig up some prior art regarding this particular patent troll, you might be able to score some cash at the same time, and help take down a pure, unadulterated evil: blood sucking companies who are exploiting a system for money, while contributing absolutely nothing to innovation, but rather taking away from actual innovators. And, on top of that, you can help send a message to other patent trolls that maybe their "easy money" won't always be so easy, and that there can be some serious consequences to such a shakedown.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: crowdfunding, never settle, patent trolling, patent trolls, prior art, project jengo, routers
Companies: caspian networks, cloudflare, sable networks


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    Stephen T. Stone (profile), 26 Apr 2021 @ 1:53pm

    I said it before, and I’ll say it again: Do not taunt Happy Fun Cloud.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Apr 2021 @ 2:03pm

    Shouldn't have done that.

    I should not have done that.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Apr 2021 @ 2:05pm

    Missed opportunity?

    Newegg should have patented the strategy of attacking back on patent trolls.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Apr 2021 @ 2:13pm

    Sable is taking ancient, 20-year-old patents

    Patents either expired or on their last legs, then.

    Sable Networks picked up the discarded patents of Caspian Networks, a failed router company (that was previously known as Packetcom).

    Prior art? Hell i would be wondering if Caspian hadn't been infringing on some other party's patents to begin with. I'm be curious to see what they patented that everyone uses now, but magically no one used until Caspian innovated the hell out of the router space. I guess i'll be reading patents, then.

    reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 26 Apr 2021 @ 2:49pm

      Re:

      If only we paid for a robust system to validate these things before issuing the magic sue everyone you can documents.

      reply to this | link to this | view in chronology ]

    • icon
      Khym Chanur (profile), 26 Apr 2021 @ 3:53pm

      Re:

      Prior art? Hell i would be wondering if Caspian hadn't been infringing on some other party's patents to begin with.

      Isn't Sable a "non-practicing entity"? Meaning that it's doing nothing that anyone could file a patent suit over?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 Apr 2021 @ 1:50pm

        Re: Re:

        I do not believe patents need to be used in commerce. That would be trademarks. Hell, most patents don't even involve a working prototype of anything anymore. There are absolute scads of NPEs that own and buy up patents. (Mostly just to troll.)

        reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 27 Apr 2021 @ 5:36am

      Re:

      "Patents either expired or on their last legs, then."

      That tends to be the pattern, I think - wait till the patent is nearly expired to allow for a bunch of companies to make money by actually creating products and services, then launch a bunch of lawsuits hoping for settlements from people who don't want their business to disappear or be held up for years in litigation.

      "Prior art?"

      That only counts while the patent is in the approval process or if someone wants to take it to court to invalidate the patent, if I'm not mistaken. Trolls depend on patents being passed without due diligence and targets deciding that the fight to invalidate the payment will be more expensive than just paying the ransom.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 Apr 2021 @ 1:52pm

        Re: Re:

        I was actually wondering why they don't "renew" the patent like so many others by "improving" it with some doodad and refiling like everyone else does.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 27 Apr 2021 @ 2:24pm

          Re: Re: Re:

          Why do that when you can pretend that someone who filed a patent but didn't bother doing anything with it before they went out of business gives you the ammunition?

          reply to this | link to this | view in chronology ]

  • icon
    Andrew (profile), 26 Apr 2021 @ 2:56pm

    Sorry to see Juniper and Cisco bought into this

    They are both big companies with plenty of law talent on staff (I work for one of them). They also have plenty of incentive to avoid these trolls, because there are so many possibilities of such overbroad interpretations in the network space.

    Sadly, my company years ago also settled with a lone engineer, the name of who's company (in a completely different space) conflicted with an acronym we wanted to use for a new platform. So we changed the name rather than spend even a day fighting it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Apr 2021 @ 3:04pm

    It almost seems like someone could set up an automated system that cross-referenced patent applications against litigation, and if a sudden bloom of patent suits arose on a set of patents, those patents would automatically be submitted for a prior art search, either crowd-funded or through the patent office.

    reply to this | link to this | view in chronology ]

    • identicon
      Qwertygiy, 26 Apr 2021 @ 6:42pm

      RE: automated system

      It's not very easy to do this automatically.

      It's difficult to autonomously complete this task.

      One would face many challenges when attempting to achieve this goal without constant human oversight.

      It's unlikely that such a system, capable of carrying out this task independently, could be constructed without encountering significant difficulty.

      To meet this goal would require numerous obstacles to be bypassed, particularly if algorithms are relied upon.

      Achieving the desired outcome will require tough resistance of the necessary artificial intelligence from human insight.

      The process of turning this vision into reality, solely through technological means, will be fraught with difficulty.

      Computers will struggle to get the job done on their own.

      The human element is necessary to avoid many pitfalls presented by utilizing software as the primary solution.

      It's hard to do this without people.


      9 of these 10 sentences are functionally identical. The other one creates Skynet.

      There are plenty of amazing things being done with neural networks and algorithmic learning... but the English language, especially legalese, is an astonishingly complex morass of synonyms, homonyms, double negatives, related concepts, reordered clauses, and way too many other things that I'm not enough of a language scholar to even identify, let alone name.

      And that doesn't even take into account the use of diagrams!

      I think we're a long way out from computers being able to reliably compare patents for prior art.

      reply to this | link to this | view in chronology ]

      • identicon
        TripMN, 27 Apr 2021 @ 12:07pm

        Re: RE: automated system

        Also patents seem to be purposefully written in as obtuse and vague legalese as they can get away with so that others can't actually learn from them and they cover more than the inventors first intended.

        This appears to be a feature and not a bug.

        reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 26 Apr 2021 @ 6:15pm

    Illiterate trolls

    Sable needs to learn how to read the, "Thin Ice!" sign.

    reply to this | link to this | view in chronology ]

  • identicon
    anony, 26 Apr 2021 @ 8:29pm

    Well, I've done my part.

    I just submitted a referecne to a document ,to cloudflare, that, in my opinion, is prior art to one of the sable patents.

    reply to this | link to this | view in chronology ]

  • icon
    relogi (profile), 27 Apr 2021 @ 7:30am

    crowd fund this

    We need to crowd source a fund to go after these guys. Administered by Linux Foundation or EFF or somebody willing, a fund open to anyone who is being extorted for patent use...

    reply to this | link to this | view in chronology ]

  • icon
    Dyspeptic Curmudgeon (profile), 28 Apr 2021 @ 8:25pm

    Defence Costs

    Another fine mess, which could easily be avoided by adopting the Common Law position on costs: Loser Pays. The usual argument against loser pays is that poor people cannot afford to uphold their rights. But holders are rarely that poor. And appositely, the prospect of making the loser plaintiff pay the costs, can (and does in Canada and elsewhere) induce lawyers to represent defendants. It should work for patent cases. Then the troll loses the cost advantage.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 29 Apr 2021 @ 2:07am

      Re: Defence Costs

      "The usual argument against loser pays is that poor people cannot afford to uphold their rights."

      ...if the issue is that poor people wouldn't be able to start and run a suit then that might perhaps be a subject for social security. I'd argue that legal vindication is rather an important part of justice, equal for all.

      Then again in the US where even universal health care and education is a controversial issue there's probably little hope for this.

      reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Follow Techdirt
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Discord

Introducing the new Techdirt Insider Chat, now hosted on Discord. If you are an Insider with a membership that includes the chat feature and have not yet been invited to join us on Discord, please reach out here.

Loading...
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.