Three years ago, we updated Vizzini’s list of “classic blunders” from The Princess Bride to include “never try to patent troll Cloudflare.” That was when the company announced that patent troll Sable Networks had made that mistake and now needed to be taught a lesson. That lesson is now complete, and Cloudflare has successfully destroyed a patent troll (and embarrassed it along the way) so much that the troll has agreed to declare its entire patent portfolio open and free for the public to use.
First, some history: over a decade ago, the e-commerce site Newegg was getting sick of patent trolls and decided that it needed to take a “never settle” approach to fighting them. The thing with patent trolling is that it’s asymmetric warfare. Trolls get low quality patents and then shake down companies, knowing that it’s cheaper to just pay some smaller amount to settle than to take the matter to court and win. But, as Newegg’s leadership surmised at the time, settling only leads to more patent trolls and more shake down payments. Making it clear you’ll never ever settle (and being very public about that) should eventually lead patent trolls to look elsewhere.
Since then, a few other companies have embraced this strategy, but none has done so with quite the same gusto, zeal, and commitment to absolutely crushing the souls of patent trolls as Cloudflare.
In 2017, Cloudflare announced its plan to completely destroy a patent trolling firm, Blackbird. It launched something it called Project Jengo, which offered up rewards to anyone helping them to completely obliterate Blackbird’s patents. The campaign was a huge success. Cloudflare won in court (and on appeal) and it appeared it greatly limited Blackbird’s ability to keep trolling.
Sable Networks didn’t bother to educate itself on this before trying its trolling efforts on Cloudflare. Cloudflare opened up the same playbook on Sable (owners of a bunch of old terrible Caspian Networks patents that it bought for a song). Cloudflare fought back and won in court earlier this year.
And it wasn’t just a “you didn’t infringe” kind of win. They actually got a jury to invalidate the patent at issue (the lawsuit had started with many claims over multiple patents, but by the time it went to trial, it had been narrowed down to one claim on one patent, and Sable couldn’t even make that one stick).
Juries very rarely invalidate patents. They are much, much, much more primed to believe that any patent is legit and not realize how many junk patents there are. They also are generally unaware of patent trolling and abusive behaviors by patent trolls that amount to little more than extortion. But here, the jury was convinced that the patent was bogus:
Perhaps it was because Cloudflare dug in during the trial and made Sable look like the extortionate troll it is. From the transcript, you see that Cloudflare’s lawyers got Sable to admit that its only actual business was suing people:
Q. I mean, that’s your business. Let’s don’t beat around the bush. You’re in the business of filing lawsuits, true?
A. Yes.
Q. And you would agree with me that you’ve been in that business for a while, right?
A. Yes.
Also, Cloudflare got Sable to admit that it does little to no research before filing its lawsuits.
Q. You believe it would be responsible, reasonable business practice to sit down and talk to folks before you sue them, right?
A. Yes.
Q. You didn’t do that here, did you, sir?
A. No.
Q. And you don’t do that as your practice, right?
A. That’s correct.
Q. You told this jury not 20 minutes ago that you sue every time. You don’t talk to anybody. That’s what you told them, fair?
A. Fair.
Q. And what you stood up here and told this jury is everybody in this industry, including me, sues first and talks later, correct?
A. Correct.
Q. But that’s just not true, is it, sir? The responsible business people in this business actually sit down and talk to folks before they sue them, fair?
A. Fair.
Q. And you don’t do that, do you, sir?
A. No.
I mean, that’s a thing of beauty.
Anyway, beyond just winning the case, Cloudflare has gotten Sable to (1) pay Cloudflare $225k for having to defend this nonsense lawsuit and (2) much more importantly, agree to release its entire patent portfolio to the public for anyone to use so that Sable can never sue over them again:
If you can’t see that screenshot from the agreement, it says:
DEDICATION TO THE PUBLIC OF THE SABLE PATENTS; ROYALTY FREE LICENSE AND RELEASE; PAYMENT BY SABLE TO CLOUDFLARE
2.1 Dedication To The Public Of The Sable Patents. Within twenty-one days of the Effective Date, the Sable Parties shall dedicate the Sable Patents to the public, including by filing and recording the appropriate document(s) and paying any applicable fee(s) with the United States Patent and Trademark Office pursuant to 35 U.S.C. § 253. For the avoidance of doubt, this Section 2.1 requires the Sable Parties to disclaim and dedicate to the public the entire term, or any terminal part of the term, of the Sable Patents granted or to be granted.
Now, I believe many of Sable’s patents are close to running out anyway. But still, what a huge victory, and one that should be celebrated. Cloudflare has truly gone past NewEgg’s “don’t settle” standard, to this impressive “don’t settle, and we will make you regret patent trolling, and do everything possible to stop you from ever patent trolling ever again, and we’ll make you feel bad too, because you deserve it.”