The Absurdity Continues: Blackbird Cast as Latest Patent Troll

By Gene Quinn
November 7, 2019

“Cheering for Cloudflare, who had no reason to know Blackbird’s claims were invalid at the time they recklessly infringed them, is beyond the pale and speaks volumes as to why innovators are leaving America and heading to Europe, China and elsewhere around the world.”

patent troll - https://depositphotos.com/17010771/stock-illustration-angry-running-troll.htmlTwo 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.

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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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Copyright: memoangeles 

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 28 Comments comments. Join the discussion.

  1. jack November 8, 2019 3:24 pm

    In my e-mail, I see today a message from “Unified Patents” well-financed arm of Efficient Infringements lobby:
    “Inventergy LBS, LLC has settled with Unified after it had been instituted (PTAB) on a patent related to monitoring and communicating with tracking devices.” Blackmail used as a negotiating method. They say: “Either you are to accept our conditions or you are not going have any patent at all.”

  2. Anon November 8, 2019 4:11 pm

    A “Tr011” has been defined as anyone having a patent that you do not like (for any reason).

    I suppose that definition fits under a rubric of “Broadest Reasonable Interpretation” when one takes into context the “feelings” attributable to those that would bandy about the term.

  3. Andrea Wheeler November 8, 2019 4:21 pm

    There is one significant error in your article: Blackbird did not file the patent application; it purchased the patent from the inventor for $1 in 2016. So the claim filed by Blackbird did nothing to support small inventors.

  4. We are all trolls now. November 8, 2019 7:59 pm

    Around 2000, Professor Keyton called The Golden Age of Patents as from 1981 – roughly 1994 (ending with the death of the doctrine of equivalents, and prosecution history estoppel).

  5. Ternary November 8, 2019 10:02 pm

    Tsk-tsk, bad boy Gene. Made a mistake, what?

    Actually, most of us know that Blackbird generally does not file patent applications. They acquire patents from inventors and companies who are unable to monetize their IP on their own.

    How do independent inventors know the name and existence of companies like Blackbird, you may wonder? I tell you why. It is because the team at IPWatchDog has written about this company before. And why did the name stick?

    It is because, like Mr. Kaufmann who made the invention in the above article, independent inventors get generally nowhere in business when relying on their hard earned patents. Companies like Blackbird are a last resort for many of us.

    We are willing to give away the patents (sell it for $1) to companies like Blackbird who are able to assert valid patents and follow up with litigation. Even that is not without risk (financially and being publicly smeared), as the article demonstrates.

    This is my opinion: there are actually not enough companies like Blackbird Technologies. I applaud them for their efforts and I root for them to be successful.

    This is one request that I have for Gene and his team. Please assemble and publish the names of companies like Blackbird as a public service to independent inventors. The only way to gain respect for patents is to assert them. Possibly by offering a reasonable license, followed (if refused) by a gigantic demand for penalties.

    Hopefully, we don’t have to explain to Andrea how Blackbird, directly or indirectly, supports independent inventors.

  6. angry dude November 9, 2019 1:46 pm

    Andrea Wheeler @3

    “…it purchased the patent from the inventor for $1 in 2016. So the claim filed by Blackbird did nothing to support small inventors.”

    How about I sell my US Patent to you for $1 on condition that you go ahead and rip Big Tech apart cause I just can’t ?
    And you’ll be a new hero to all “small” (“small” means any person or company with less than 10 million USD sitting in a bank account ready to be spent on IPRs and litigation – ask Josh Malone) inventors in this country

    On a side note, what was going on with the US Patent System for the last 13 years (since EBay decision) is High Treason … no less

  7. Benny November 10, 2019 11:06 am

    The article did not explicitly mention that the inventor received only one dollar. In fact, it hints that there may have been more than the initial financial reward. We can’t be sure.
    That said, prior art was found, so the patent application should not have been eligible for grant. If there is any mechanism by which a patent should be granted despite having been disclosed in a prior publication -I,’m all ears.

  8. Hans U. Meyer November 10, 2019 12:23 pm

    A Troll can obviously be bad or good for a small inventor. However, advising inventors to go to other countries for patenting ? Not for inventions for which the US are a big or the biggest potential market. In other words, most inventions.

    I think the USPTO is still far ahead of its competitors. Where else can one get a provisional patent establishing priority for 140 dollars? And a patent term extension if the examination took too much time? Usually the USPTO is the first to grant a patent 3 to 4 years after priority filing. For China, it’s 4-5 years and Europe more like 6-7 years. And European Patent fees are per country, with most countries’ fees way higher than US fees.

  9. angry dude November 10, 2019 12:34 pm

    Hans @7

    Dude,
    Ru freaking kidding us?
    Wtf needs US patent if it can’t be enforced?

  10. Ternary November 10, 2019 4:21 pm

    Hans has a point. And that is what the whole discussion is about. (Missing in Hans’ list is the 1 year grace period that we had and that has been usurped by harmonization with Europe and the first-to-invent rule. All gone thanks to interest groups.)

    Our system used to be pro-inventor, pro-innovation, pro-entrepreneur. Europe’s EPO is corporate and if perhaps not anti-independent inventor (though I believe they are) they are most certainly not pro-independent inventor.

    The purpose and intent of discussions on this blog is to restore the USPTO’s pro inventor policies and reverse the overwhelming corporate influence on patents.

    The Dude is correct that nowadays having a patent in the USA is pretty much worthless. But don’t forget, that has been achieved in a very short decade.

    I am not writing on this blog because I want/need to bitch and moan about the current system. I want the irrationality and interest driven measures being exposed and reversed. I am with Anon and Gene and others on this. We should not willingly hand over the keys to the IP kingdom to corporate America. They have proven over and over again not to be the clever and society minded custodians that they pretend to be. They are running the system into the ground for their own short term interest, with the courts and Congress as their henchmen, willingly or unintentionally.

  11. jacekT November 10, 2019 7:39 pm

    Hans I think you should mention EU “Community Design registration” allowing quick, Cheap and efficient reservation of IP rights to up 100 designs (in one product class) in EU, and WIPO Hague registrations allowing the same (Industrial design) in 90 countries by registration of the shape of the product for up to 25 years. Registration may be active literally the next day.
    But if you add the US to this registration, USPTO is going divide your 100 designs into 100 separate “Design Patent Application,” with the resulting cost around $100k, and 2 years of waiting plus the torture of dealing with USPTO examiners, instead of approximately $10k in EU. (100 designs with 100 illustrations) Some products are all about their exterior and Hague agreement in the EU and elsewhere is something in the US we can only dream about. No lawyer involved.

  12. angry dude November 10, 2019 10:11 pm

    Ternary @9

    Dude,

    If by “corporate America” you mean FAANG and the rest of SV multinational and multi-billion corps then this is NOT America at all

    Silicon Valley IS NOT America

    “Corporate America” to me means small to midsize domestic corporations with 1 to 500 people employed

    And this is the kind of “Corporate America” the US Patent System was originally designed to protect – not the likes of Google or Facebook or Apple with billions of dollars in offshore accounts and no allegiance to the nation

    Where is Special Prosecutor ????

    This is High Treason

  13. Hans U. meyer November 11, 2019 1:50 am

    angry dude@8 & ternary@9

    Not trying to freaking kid anybody, just talking from experience as a small-company inventor. So far I was lucky not to have any post-grant litigation in the US. Had lately in China, which I and good IP lawyers won. To my surprise, as I wrongly thought they would be partial to their own citizens. Ten years ago we won also a patent challenge initiated by a big competitor in the European Patent Court Munich. Lost once in appeal to the German patent senate (funnily, on the human factor, not technology, which dispelled my illusion that German judges were somewhat better than the rest), but that’s ancient history.

    So, I’m not qualified to discuss enforcing one’s patents in the States, but if you are right, why patent at all? Say you invent a novel Stud Finder: the only big market for this is the States. What would you do? Personally, I’d still apply in the US (and in China, where it will be manufactured and possibly copied).

  14. angry dude November 11, 2019 6:52 am

    Hans U. Meyer @11

    Ask Josh Malone just how much money (8 figures) you would need to spend on IPRs and litigation in the US with the simplest bunch-of-balloons invention everyone can understand without “expert” testimonies

    Stud Finder ? This is high-tech relative to the Bunch-of-balloons
    Be prepared for abuse of process in multiple IPRs

    Everything is manufactured in China so I guess Chinese patent is a must for every hardware product which can be easily reverse-engineered
    But, according to Paul Morinville, having US patent will trigger IPR in the US if you try to enforce your foreign patent on the same invention overseas
    Thus getting US patent is like shooting yourself in the foot… or hanging yourself cause most likely your US patent will not survive PTAB and you’ll have to fight in foreign courts to undo the damage

    US patent is not an advantage anymore but a liability and a potential huge obstacle to enforcing your foreign patents overseas

    P.S. When this mess started back in 2006 I could not possibly imagine that it would be this bad, completely out of control… hardware device being called unpatentable abstract concept.. American inventors leaving US for China… black is white…white is black etc.

    High Treason

  15. Rick Derris November 11, 2019 8:48 am

    Another good article at IP Watchdog. I really love this site.

    TechCrunch is garbage. Their writers slavishly cheer on big tech no matter what. It’s the equivalent of “People” magazine but their heroes are creeps like Pincus and Zuckerberg. Actually, I take that back. The standard “US Weekly” article about Jennifer Aniston has more journalistic rigor than the average TechCrunch article.

  16. Concerned November 11, 2019 9:45 am

    An inventor does not even need to get to the court stage to experience abuse of power in the United States. It starts at the filing stage.

    The Director has to instruct the examiners to follow his guidance. Lots of luck with that hope.

    My examiner states an abstract idea can have no practical application since it is abstract. And this September 2019 statement was well after the 2019 guidelines were issued in January 2019.

  17. Anon November 11, 2019 10:53 am

    angry,

    Yet again, your emotion overwhelms your reasoning ability:

    and a potential huge obstacle to enforcing your foreign patents overseas

    Sorry, but no. Patents are a strictly Sovereign item. There is no such interaction as you would suggest.

  18. angry dude November 11, 2019 2:38 pm

    Anon @17

    Don’t play a fool, dude

    As Paul Morinville noted here a while ago, enforcing your foreign patent overseas can (shall?) trigger an IPR on your US counterpart patent
    Your US patent most likely won’t survive PTAB and will be declared invalid for any of the possible bs reasons
    The foreign courts will make a note of that and you’ll have to fight unjust invalidation overseas
    Thus US government is actively forcing American inventors not to file for patent protection in US and to leave the country.

    If this is not a High Treason then what is this ??

    You speak with both sides of your lawyery mouth, dude
    Doesn’t work like this anymore
    Time to take sides

  19. Mike Schinkel November 11, 2019 7:08 pm

    Why should a firm litigating a patent struck down quickly by the court and then quickly by an appeals court as being overly broad and unpatentable because it was an abstract idea be cheered on as “pro inventor?!?”

    Seems to me this “inventor” pulled a fast one over on the USPTO and by ligitating this Blackbird is exactly the kind of firm that should be demonized as a “troll.” A non-operating venture seeking to extract a toll out of an operating venture just because somebody else went to the effort to patent something with easily identifiable prior art but no ability to execute is not a virtuous exercise.

    Let’s look at this a different way. If Blackbird had not purchased the patent for $1 and had instead represented the supposed inventor on contingency, where the small inventor is showing good faith effort to actually develop the patent-leveraging goods or services then in all likelihood Blackbird would not be consider a troll but instead a defender of the small inventor.

    But instead, because Blackbird *purchased* the patent for $1 — probably so they can control the lion’s share of the windfall from successful litigation — and because they clearly never plan to develop any of their patents — thus bringing not actual benefits to society that patents were designed to encourage — then Blackbird are _exactly_ what they have been described as being — a patent troll — and they deserve all the derision heaped on them, and more.

    #jmtcw #ianal

  20. Anon November 11, 2019 7:47 pm

    ANYTHING attacking your US counterpoint is completely independent of any foreign patent.

    Sorry, but still no. My statement is accurate.

    The foreign courts will make a note of that and you’ll have to fight unjust invalidation overseas

    You have completely fabricated that statement, Do you have anything at all to provide that would support this assertion?

    You speak with both sides of your lawyery mouth, dude
    Doesn’t work like this anymore
    Time to take sides

    I side with the Rule of Law. See Sir Thomas More (as you are as bad as ‘the other side’ in your quest to mow down all obstacles that you see in your way.

    I also side with innovation. YOUR stance is not siding with innovation to the extent that your message of “to the morgue” is NOT helpful in being defeated and calling for just quitting.

    I have explained this to you in no uncertain terms many times now.

    Maybe You should stop being the mouthpiece of the Efficient Infringer and finally grasp that what the Efficient Infringers want is for the “bothersome” small entities to simply tire and quite trying.

  21. angry dude November 11, 2019 10:28 pm

    Anon @19

    Dude,
    I do not have any foreign patents – I just cited what Paul Morinville told us here about possibility of fighting unjust PTAB invalidation in foreign courts
    Ask him
    But if I were to sue multinational corporation with global markets for the same products (e.g. Samsung phones) in a foreign jurisdiction on a foreign patent I would expect them to file IPR in the USA on the US counterpart of that foreign patent – why not ?
    Unless there is some very specific law preventing this why not use PTAB invalidation process even just for publicity purposes ?

  22. Simon November 12, 2019 7:54 am

    Were is the Patent Pirate naritive? FAANG has been stealing patents from patents holders and has been making Billion since 2011, for example take a look at WiLANs 4G LTE patent case, almost all the major technology companies took a patent but Apple chose to ignore paying to use the technology. The Patent market is in shambles there is no clear path for a patent holder in America. I’m sure we will be seeing some type of consolidation with over seas companies coming in and buying up strong IPs and taking them back to their jurisdiction and use their legal system to inforce a companies negligence like Apple from ignoring and openly stealing a persons patent. If America will not get it fixed inventors will move to countries that will help protect their invention from bullies like FAANG that are to big for their own good. America is serving only a select few and killing off the next great thing by doing so. It does not seem they can break the dollars in bribes in order to do the right thing and protect and nurture small inventors.

  23. Model 101 November 12, 2019 10:06 am

    All –

    “The Absurdity Continues” ….

    indeed!

  24. angry dude November 12, 2019 11:55 am

    Simon @22

    Dude,

    American inventors will not move overseas, why ??? They’ll just stop inventing and patenting
    I’d rather go fishing myself (while collecting money from the same government that ripped me off) than engage in self-destructive fraud called US Patent

    Fishing is good for me – I can see and eat the results of my efforts
    Inventing and patenting is USA is not good for me – it’s self-destructive activity both financially and mentally

    I’m sure other inventors feel the same way

    To the morgue

  25. angry dude November 12, 2019 12:05 pm

    Mike Schinkel @19

    So Thomas Edison, Nicola Tesla and Wright brothers were all patent trolls ?

  26. Ternary November 12, 2019 12:33 pm

    I appreciate that established companies or well funded private inventors have an international filing and IP enforcing strategy.

    For independent US inventors, the market initially is here (and large). The US is the launch platform so to speak. Europe is extremely expensive. I would consider China as part of a US/China IP strategy, for instance on China manufactured goods that are marketed in the US.

    Before you achieve some critical mass, all this talk about US independent inventors filing in Europe and China instead of the US is fruitless. Basically it is giving up on the US independent inventor. How the heck can you launch a US business based on European/Chinese patents? Chinese and Taiwanese companies file patent applications here and with good reasons.

    In some cases, independent inventors start filing via the international (PCT) route, which is very expensive. Perhaps, independent inventors who have taken the PCT route can share their experiences on this blog.

    I was actually quite happy with the US system about 15 years ago. It has deteriorated greatly since then. I have prosecuted patents in the EPO and in China for others. The system there seems not to to be “better” or “easier” than here. In Europe, it is much, much more expensive. The only (and significant) advantage of the EPO and the Chinese Patent Office is that the system seems more predictable and stable. That is: you don’t have to worry ‘too much’ that you will lose your expensive patent retro-actively.

    We know what the three major reasons are for the uncertainty, unpredictability and arbitrariness of US patents: the PTAB, the Courts (Federal and SCOTUS) and Congress (first by screwing up the patent system and consequently letting it fester).

    Telling US independent inventors to file applications overseas is a useless pipedream. It sounds good but it is useless. Remember the time when people said: you need to get a patent on that, when you had a bright idea. Do we mean to say: you need to file a European/Chinese patent on that, when you have a brilliant idea?

    On top of that, I don’t want to file overseas. I want to have a valuable patent on my valuable inventions to which I am entitled according to our Constitution. I live in the USA, not in Europe or China.

  27. Mike Schinkel November 12, 2019 1:48 pm

    @angry dude:

    > “So Thomas Edison, Nicola Tesla and Wright brothers were all patent trolls ?”

    Strange, but I was not aware that any of those you mentioned were lawyers from firms that acquired patents from inventors and then ligitated those patents while never having any intention of developing the innovations nor bringing any of them to market.

    I thought all those people you mentioned were both inventors of novel innovations who also worked to develop them and bring them to market.

    But maybe I do know my history as well as you do? Can you please explain by the criteria I laid out above how Edison, Tesla and Wright could ever be considered patent trolls?

  28. Anon November 12, 2019 4:27 pm

    Excellent comments, Ternary.

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