In the summer time of 2017, we wrote a couple of battle between Cloudflare, the San Francisco-based web safety and content material supply community, and two attorneys who’d beforehand litigated mental property instances on behalf of a few of the largest tech corporations. The attorneys had come collectively to type Blackbird Technologies, a Boston- and Chicago-based agency that rapidly amassed dozens of patents, then started utilizing them to file dozens of patent infringement lawsuits towards corporations, together with Cloudflare.
The go well with was typical in each method, besides how Cloudflare responded to it. Rather than quietly settle, as have some targets of Blackbird and different so-called patent trolls, Cloudflare determined to battle again in a really public method, running a blog extensively, speaking with information shops like ours, and, most crucially, turning to anybody and everybody who may assist it find prior artwork. The concept wasn’t merely to invalidate the patent that Blackbird was utilizing to sue Cloudflare — however to invalidate all of Blackbird’s patents. Cloudlfare declared conflict.
Cloudflare gained, too. At least, the case towards Cloudflare itself was ultimately dismissed, and in a postmortem printed yesterday, the corporate described intimately its sport plan and lots of extra specifics round its efforts to crowdsource prior artwork which may invalidate Blackbird’s patents.
It revealed, for instance, that it had acquired 275 whole distinctive submissions from 155 people on 49 separate patents, and a number of submissions on 26 patents. Roughly 40% of those associated to the patent asserted towards Cloudflare, however these people additionally turned up prior artwork submissions that would assist shield Niantic (which is also making an attempt to bat again Blackbird), in addition to Lululemon and New Balance, each of which have been sued beforehand by Blackbird over a patent Blackbird owns referring to a “sports bra having an integral storage pouch.”
Cloudflare additionally went exhausting after the founders of Blackbird, submitting ethics complaints towards each of them based mostly on Blackbird’s self-described “new model” of pursuing mental property claims, and taking these arguments to the bar affiliation in Massachusetts and Illinois, in addition to approaching the United States Patent and Trademark. Cloudflare confused in these complaints guidelines that prohibit legal professionals from buying a reason behind motion to say on their very own behalf, or within the different, guidelines prohibiting attorneys to separate contingency charges with a non-attorney. Where these complaints lead is a query mark for now, at the very least publicly (disciplinary proceedings are largely confidential). But it’s price noting that solely a kind of founders is now featured on Blackbird’s web site. The different, Chris Freeman, previously of Kirkland & Ellis, has decamped to an organization that funds litigation in Chicago referred to as Burford.
It’s a feel-good story in an unlimited sea of unhealthy information. The query now could be: what’s subsequent? Though some may hope Cloudflare will in some way proceed its marketing campaign towards injustice, Cloudflare has mentioned from the outset that when its authorized tangle with Blackbird had ended, it was getting out of the patent-troll-fighting enterprise, a call that the corporate’s common counsel, Doug Kramer, reaffirmed to us in dialog late final week concerning the case. As he put it, Cloudflare’s campaign was by no means meant to develop into “life-long advocacy” given the corporate’s different, extra urgent considerations — together with going public in September.
Still, Kramer acknowledges that he has acquired “a lot of phone calls from other general counsels or IP lawyers and CEOs [who are also the targets of patent lawsuits] who’ve said, ‘Isn’t there something we can here other than roll over and write a check?’”
They’re understandably making an attempt to piggyback off Cloudflare’s learnings. “I don’t know that I’ve seen anything to the extent that we’ve done it.”
Which brings us to the purpose of yesterday’s submit, which wasn’t merely to crow about its win over…
