e dot dot dot
a mostly about the Internet blog by

November 2019
Sun Mon Tue Wed Thu Fri Sat
         


Cloudflare Explains What It Takes To Slay A Patent Troll

Furnished content.


A couple years back we wrote about the patent trolling operation Blackbird Technologies, which was a law firm that pretended it wasn't a law firm, and seemed to focus on buying up patents to shake down companies for cash. It had threatened many and sued a few, but definitely picked the wrong target when it decided to go after Cloudflare. Like Newegg before it, the team at Cloudflare decided that even if it was cheaper to settle, it would set a bad precedent and would likely lead to more trollish threats landing on its doorstep. So, instead, Cloudflare decided to fight back. And it went a step or two beyond Newegg, who would just fight the trolls in court. Cloudflare decided to not just fight in court, but then to seek to destroy Blackbird Technologies entirely. It launched a crowdsourced contest to search out prior art not just on the patent at issue in its own case, but on all Blackbird patents. It also went after the lawyers at Blackbird, filing bar complaints against the company for violating attorney ethics rules (mainly in holding itself out as not a law firm, but then acting as a law firm). There was also the issue of the firm appearing to purchase the bare right to sue, the same issue that brought down copyright trolling operation Righthaven. The issue there is that if you purchase the rights to a patent or a copyright, you have to actually purchase all of the associated rights, not do a convoluted thing where you pretend to buy the rights, but the original copyright or patent holder gets some of the proceeds of your trolling.The legal strategy went swimmingly well. Cloudflare got an easy win at the district court, and then a super quick and easy win on appeal at CAFC, the Court of Appeals for the Federal Circuit. Cloudflare was so obviously on the right side of things that the CAFC panel didn't ask its lawyers a single question (which is very rare), issued a decision mere days after the hearing (incredibly rare) and found Cloudflare's arguments so correct that it didn't even explain its decision, but just issued a judgment that said "Affirmed" (even more rare). As we noted at the time, even though it was an "easy" win for Cloudflare, it still involved two years of legal wrangling, involving over 1,500 pages of legal briefings on both sides (900 from Cloudflare alone). That's expensive, time-consuming and distracting.Earlier this week, Cloudflare released an update about the rest of its efforts to hit back at Blackbird (now that Blackbird chose not to request the Supreme Court review the CAFC decision). All in all, the effort to clip Blackbird's wings appears to have been a pretty good success overall, even if the company is still operating. The crowdsourcing (and funding) campaign to find prior art against a bunch of Blackbird patents was definitely a success:

A high-level breakdown of the submissions:
  • We received 275 total unique submissions from 155 individuals on 49 separate patents, and we received multiple submissions on 26 patents.
  • 40.1% of the total submissions related to the '335 patent asserted against Cloudflare.
  • The second highest concentration of prior art submissions (14.9% of total) relate to PUB20140200078 titled Video Game Including User Determined Location Information. The vast majority of these submissions note the similarity between the patent's claims and the Niantic game Ingress.
It certainly appears that Blackbird's prospects have diminished thanks to this team effort:
In the one-year period immediately preceding Project Jengo, (Q2'16-Q2'17) Blackbird filed more than 65 cases. Since Project Jengo launched more than 2.5 years ago, the number of cases Blackbird has filed has fallen to an average rate of 10 per year.  Not only are they filing fewer cases, but Blackbird as an organization seems to be operating with fewer resources than they did at their peak. When we launched Project Jengo in May 2017, the Blackbird website identified a total team of 12: six lawyers, including two co-founders, four litigation counsel, as well as a patent analysis group of 6. Today, based on a review of the website and LinkedIn, it appears only three staff remain: one co-founder, one litigation counsel, and one member of the patent analysis group.  
As for the ethics complaints, the company notes that the proceedings there are confidential, so there's not much to report, but also notes that they only filed these complaints in two states, Massachusetts and Illinois. At the very least, this should hopefully scare off others from mimicking Blackbird's sham agreements:
We based our complaints on the assignment agreement we found filed with the USPTO, where Blackbird purchased the '335 patent from an inventor in October 2016 for $1. It seemed apparent that the actual but undisclosed compensation between the parties was considerably more than $1, so Blackbird may have simply acquired the cause of action or the agreement involved an arrangement where Blackbird would split a portion of any recovered fees with the inventor. Such agreements are generally prohibited by the ethical rules.In public statements, Blackbird's defense to these allegations was that it (i) was not a law firm (despite the fact it is led exclusively by lawyers who are actively engaged in the litigation it pursues) and (ii) does not use contingency fee arrangements for the patents it acquires, but does use something similar. Both defenses were rather surprising to us. Isn't an organization led and staffed exclusively by lawyers who are drafting complaints, filing papers with courts, and arguing before judges amount to a law firm? In fact, we found pleadings in other Blackbird cases where the Blackbird leadership asked to be treated as lawyers so they could have access to sensitive technical evidence in those cases that is usually off-limits to anyone but the lawyers. And what does it mean for an agreement to be merely similar to a contingency agreement?
The successful campaign against Righthaven seemed to have prevented similar operations forming in the copyright trolling space, and hopefully this effort against Blackbird will do the same in the patent trolling space. At the very least, though, this, again, demonstrates the value of standing up to a patent troll, even if it would be a hell of a lot cheaper and easier to just settle.

Permalink | Comments | Email This Story


Read more here

posted at: 12:00am on 09-Nov-2019
path: /Policy | permalink | edit (requires password)

0 comments, click here to add the first



Blizzard Confirms It Won't Rescind Blitzchung's Suspension

Furnished content.


We had just talked about the apology that Blizzard's President J. Allen Brack issued at the opening of Blizzcon this past week. In that apology, Brack accepts responsibility for "moving too quickly" in banning Blitzchung for his mild statements of support for the ongoing protests in Hong Kong and states that Blizzard hadn't "lived up to the high standards" that Brack apparently expects out of the company. Notably absent from the apology was any reference to altering Blitzchung's six month ban from competition, or any changes to other bans over Hong Kong speech the company had handed out.And now Brack has explicitly stated in a recent interview that Blitzchung's 6 month ban will stay in place, further calling into question what the point of his "apology" was at all.

In explaining that decision,Brack reiterated the message that Blizzard supports free speech and encourages employees and players to say what they want in "all kinds of ways and all kinds of places." The one exception to that, he said, is "official broadcasts," including Blizzard-sponsored esports events, which the company wants to be "focused on the games.""Again, it's not about the content of Blitzchung's message,"Brack said, echoing previous comments from Blizzard. "It's about the fact that it was not around the games. If we hadn't taken action, if we hadn't done something, you can imagine the trail that would be in our future around doing interviews. They would become times for people to make a statement about whatever they wanted to, on whatever issue. That's just a path that we don't want to go down. We really want the content of those official broadcasts to be focused on the games, and keep that focus."
Which lands us pretty much right back to Blizzard's original policy. So what was the apology for? Simply banning too quickly? Banning for a year instead of six months? None of this addresses what people are actually angry about. Brack went on to state that Blizzard competitors were free to express their political thoughts outside of Blizzard stream, though there is evidence to the contrary.Brack went on to make even more confusing statements suggesting that Chinese pressure had nothing to do with the ban due to Blizzard not really operating in the country, before then going on to say that they work in close concert with their Chinese broadcast partner.
Brack also reiterated in the interview that Chinese regulations and business pressure has nothing to do with the company's decisions regarding Blitzchung. Though Hearthstone is available in China,Brack stressed that it was only through local publishing partner NetEase, and that Blizzard itself is "not legally allowed to operate or to publish games in China."Elsewhere in the interview, though, Brack says that Blizzard Taiwan, Hearthstone leadership, and Blizzard's "esports team" were all "in conversation [with NetEase] around the issue." Together, Brack said, those groups "acted very rapidly and we acted very quickly" in handing out Blitzchung's initial ban, using an amount of haste that Brack now calls "the failure of this story."
Very little is clear in any of this, save for the simple reality that Brack's apology was corporate nonsense. If any of this was supposed to tamp down the fervent anger at Blizzard's actions, I can't imagine it working.

Permalink | Comments | Email This Story


Read more here

posted at: 12:00am on 09-Nov-2019
path: /Policy | permalink | edit (requires password)

0 comments, click here to add the first



November 2019
Sun Mon Tue Wed Thu Fri Sat
         







RSS (site)  RSS (path)

ATOM (site)  ATOM (path)

Categories
 - blog home

 - Announcements  (2)
 - Annoyances  (0)
 - Career_Advice  (1)
 - Domains  (0)
 - Downloads  (4)
 - Ecommerce  (2368)
 - Fitness  (0)
 - Home_and_Garden  (0)
     - Cooking  (0)
     - Tools  (0)
 - Humor  (1)
 - Notices  (0)
 - Observations  (1)
 - Oddities  (2)
 - Online_Marketing  (145)
     - Affiliates  (1)
     - Merchants  (1)
 - Policy  (1606)
 - Programming  (0)
     - Browsers  (1)
     - DHTML  (0)
     - Javascript  (536)
     - PHP  (0)
     - PayPal  (1)
     - Perl  (37)
          - blosxom  (0)
     - Unidata_Universe  (22)
 - Random_Advice  (1)
 - Reading  (0)
     - Books  (0)
     - Ebooks  (1)
     - Magazines  (0)
     - Online_Articles  (4)
 - Resume_or_CV  (1)
 - Reviews  (1)
 - Rhode_Island_USA  (0)
     - Providence  (1)
 - Shop  (0)
 - Sports  (0)
     - Football  (1)
          - Cowboys  (0)
          - Patriots  (0)
     - Futbol  (1)
          - The_Rest  (0)
          - USA  (1)
 - Woodworking  (1)


Archives
 -2019  December  (12)
 -2019  November  (52)
 -2019  October  (49)
 -2019  September  (46)
 -2019  August  (52)
 -2019  July  (55)
 -2019  June  (49)
 -2019  May  (49)
 -2019  April  (81)
 -2019  March  (94)
 -2019  February  (91)
 -2019  January  (15)


My Sites

 - Millennium3Publishing.com

 - SponsorWorks.net

 - ListBug.com

 - TextEx.net

 - FindAdsHere.com

 - VisitLater.com