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Cloudflare’s Quest to Kill a Patent Troll Gains Steam

May 25, 2017, 4:00 PM UTC
Troll Road Sign, Trollstigen (The Troll Path)
Photograph by Douglas Pearson — Getty Images

Tech companies are frequent targets of patents lawsuits but few react quite like Cloudflare. In response to a claim filed last month by a so-called patent troll, the Internet security company responded with a ferocious counter-attack, including a $50,000 public bounty for help to destroy the troll’s patents. Already there are signs its approach may be working.

On Thursday, Cloudflare said in a blog post that the public has responded to its call-to-arms by submitting over 140 pieces of evidence to challenge the validity of the patents owned by the troll, which is known as Blackbird, and which is owned by a team of patent lawyers. (The term patent troll is a commonly-used derogatory term for companies whose sole business is demanding money for patents).

Cloudflare says much of the evidence, known in patent lingo as “prior art,” is of exceptionally high quality, and has been submitted by engineers and programmers.

“In one case that stood out to us, someone wrote in about a project they personally had worked on as an engineer back in 1993, which they are convinced is conclusive prior art to a Blackbird Tech patent,” the company stated.

Under federal law, the government can only issue patents for inventions that are new and non-obvious. If evidence turns up later to show a patent shouldn’t have been granted in the first place, a defendant can ask a judge to declare it is invalid.

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In the case of the lawsuit against Cloudflare, Blackbird is asserting a patent from 1998 titled “Providing an internet third party data channel.” It also own numerous other older patents it has been using to sue numerous other companies like Netflix, Amazon, and Reebok.

Under Cloudflare’s bounty program, the company initially said it would pay $20,000 to those who helped invalidate the 1998 patent at the center of its fight with Blackbird, and $30,000 for evidence that helped to invalidate other Blackbird patents. Now, Cloudflare is topping up the latter category with an additional $50,000—money it says came from an anonymous donor that supports its anti-troll activity.

Meanwhile, Cloudflare is also doubling down on a novel legal strategy to attack the patent troll: It’s claiming those running Blackbird are breaching their professional duties as lawyers by engaging in what may be illegal fee-splitting arrangements, and by buying cases from prospective clients. Cloudflare has put those allegations, which are so far unproven, before various state bar associations, and is also pushing state lawmakers to pass laws curbing patent trolls.

Blackbird did not immediately respond to a request for comment about its dispute with Cloudflare.

While patent trolls have been a thorn in the side of tech companies for more than a decade, their victims received a major piece of good news this week. On Monday, the Supreme Court issued a unanimous ruling that effectively shut down the ability of patent trolls to forum shop for districts with a reputation for friendly judges and juries.