The Absurdity Continues: Blackbird Cast as Latest Patent Troll

Two days ago, TechCrunch published an article touting an important victory by Cloudflare against an evil patent troll—Blackbird Technologies. In the article there is no mention of any inappropriate tactics used by Blackbird, and there is nothing to suggest that Cloudflare was not infringing the patents they were accused to have infringed. In fact, that article seems to practically admit that Cloudflare was infringing on the patents because the defense tactic used by Cloudflare was not to argue that they were not infringing, but instead to argue that the patent claims asserted were invalid.

Indeed, on November 4, Cloudflare published a description of their strategy, which does not mention anything about demonstrating that they were not infringing the patents issued by the United States Patent and Trademark Office (USPTO). Instead, the strategy was to: (1) not settle; (2) make a public cry for help and seek the submission of prior art that might invalidate the patent claims they were facing; and (3) file ethics complaints against the attorneys representing Blackbird.

Obviously, it is Cloudflare’s right not to settle, and if they think they are in the right that is a perfectly reasonable strategy. Filing ethics complaints in the way that they describe seems harassing and quite the epitome of the type of behavior one might suspect to be associated with a troll.

The Missing Argument Speaks Volumes

With respect to the second aspect of the Cloudflare strategy, to make a public cry for help, that seems to be an admission that at the time they started engaging in the infringing activity they had no idea whether the patents in question were valid. And let’s not argue or debate whether Cloudflare was infringing. They were obviously infringing or their own post mortem, as TechCruch describes it, would have recommended that others facing patent infringement litigation start by arguing they didn’t infringe and were not tortfeasors. Clearly, if you are charged with infringing and you have not infringed, that would be the best and easiest argument to make, and it certainly would not require paying for the public to find prior art unknown to you or leveling ethics complaints against those who have the temerity to represent a patent owner.

But the Cloudflare strategy does not suggest making the straightforward argument that there has been no infringement. Why? Because in the overwhelming number of patent infringement cases there has been infringement. Implementers take what they want regardless of the presence of proprietary rights, regardless of the presence of issued patents, and in complete disdain for the patent system. Yet, somehow the bad actor in this particular story is Blackbird, who filed a patent application that was examined by U.S. patent examiners, issued as a patent, and was then recklessly infringed by Cloudflare without any regard for the rights they had been awarded.

America Circa 2006 et seq

This patent troll narrative has become so out of control that seemingly intelligent people actually believe that the wrongdoer is the victim, and the entity that followed the rules, was awarded rights by the federal government and had the audacity to seek to enforce those duly recognized rights is the bad actor. Surely this has to seem absurd to anyone not on the payroll of those making money infringing. Only in America circa 2006 et seq can those who knock off the innovations of others be viewed as the victim.

Why have patents really? If you get caught infringing by one who actually can afford to sue you it seems you can just call upon others unrelated to you to find prior art that you knew nothing about at the time you started infringing. Then, if the legion of minions sent out to find prior art discover something you didn’t know existed that the patent examiner didn’t find either, suddenly the patent owner becomes an evil villain. Only in America circa 2006 et seq is such a ridiculous narrative plausible.

An Increasingly Bad Bet

In this case, the Blackbird patent claims were found invalid. Cheering for Cloudflare, who had no reason to know that at the time they recklessly infringed those claims, is beyond the pale and speaks volumes as to why innovators are leaving America and heading to Europe, China and elsewhere around the world. At a time when patent applications are growing around the world, they are decreasing in America. We can expect to see that continue and get worse.

Why does anyone want a U.S. patent in this climate? A U.S. patent is a bet on the future and that America will eventually get it right, but for those who need rights now, go to Europe. Europeans understand the importance of patents for small-to-medium size enterprises (SMEs) in a way the U.S. understood during the Golden Age of Patents in America, which lasted from 1981 through 2006.

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