Tag Archives: Jengo

Cloudflare defeats patent troll Sable at trial

Post Syndicated from Patrick Nemeroff http://blog.cloudflare.com/author/patrick-nemeroff/ original https://blog.cloudflare.com/cloudflare-defeats-patent-troll-sable-at-trial


For almost seven years, Cloudflare has been fighting against patent trolls. We’ve been doing this successfully through the efforts of our own legal team, external counsel, and the extraordinary efforts of people on the Internet looking for prior art (and getting rewarded for it) through our Project Jengo.

While we refuse to pay trolls for their meritless claims, we’ve been happy to award prizes to Project Jengo participants who help stop the trolls through prior art that invalidates their patents or claims. Project Jengo participants helped us in the past roundly beat the patent troll Blackbird (who subsequently went out of business).

Today, we’re back to talk about yet another win thanks to a lot of work by us, our external counsel, and Project Jengo participants.

Sable

Last Thursday, on a clear, sunny morning in Waco, Texas, a jury returned a verdict after less than two hours of deliberation. The jury found that Cloudflare did not infringe the patent asserted against Cloudflare by patent trolls Sable IP and Sable Networks.

And while that would have been enough to decide the case by itself, the jury went further and found that Sable’s old and broadly-written patent claim was invalid and never should have been granted in the first place–meaning they can no longer assert the claim against anyone else. Since Sable first sued us, we’ve invalidated significant parts of three Sable patents, hamstringing their ability to bring lawsuits against other companies.

It’s worth noting that very few lawsuits ever reach a jury. Most non-lawyers are shocked to learn that only about 1% of civil cases make it to trial, because trials are generally what they see on TV or in film. But professional litigators know that almost all cases are resolved much earlier through procedures that are much less entertaining to watch on screen: written motions, delay, or settlement. A big reason for this is that taking a case to trial–even on simple matters–is extremely costly. In patent cases, that means millions of dollars.

As we described in our first Project Jengo blog post, these costs are the threat that patent trolls rely on to extract sizable settlements out of innovative technology companies. It’s often easier for technology companies to pay a settlement rather than pay millions more in litigation costs that likely can’t be recovered even if the technology company wins. Patent trolls usually don’t want to incur the costs of going to trial either, but they typically wait for the other side to blink first and pay up–especially because the company accused of infringement is the one that faces the risk of a bad verdict and damages award.

But every once in a while the target doesn’t blink. Cloudflare’s hard fought victory, the culmination of three years of litigation, is a strong warning to all patent trolls–we will not be intimidated into playing your game.  

Background

Let’s recap how we got here. This case began in March 2021 when Sable Networks and Sable IP filed a complaint against Cloudflare in federal court. Sable asserted around 100 claims spanning four patents against multiple Cloudflare products and features. The patents relied on by Sable were filed around the turn of the century, and they addressed the hardware-based router technology of the day. More specifically, they addressed a particular type of hardware focused on “flows” composed of multiple linked packets. This approach is not used by modern-day software-defined services delivered on the cloud, particularly not services like Cloudflare that handle traffic on a packet-by-packet basis. But that didn’t stop Sable from arguing its broadly-worded patents covered essentially all router operations, including Cloudflare’s cutting edge technology–well beyond what the asserted patent claims were ever intended to cover.

As with many patent trolls, Sable IP has never made or sold products and doesn’t employ a single person to create or design actual technology. Sable IP was created as a shell entity in 2020 to monetize the patent portfolio of Sable Networks, which itself was formed in 2006 and allegedly acquired the assets–including the patents–of Caspian Networks, a router company that had shuttered its operations. Sable IP is one of many such shell entities formed to “monetize” patents through lawyer-driven litigation campaigns.  

Cloudflare wasn’t Sable’s only target. Sable sued a number of other companies, including Cisco, Fortinet, Check Point, SonicWall, Juniper Networks, and others, each of which eventually resolved the lawsuit against them out of court. Cloudflare took a different approach.

To kick off our fight against Sable, we launched another round of Project Jengo, crowdsourcing submissions of prior art for all of Sable’s active patents–including patents not asserted against Cloudflare–and committing a $100,000 award to be split among winners that submitted strong prior art. Dedicated readers will remember Cloudflare’s first round of Project Jengo, which helped put the notorious patent troll Blackbird out of business. We’ve received dozens of submissions since we launched this Sable-focused round of Project Jengo, and have awarded \$70,000 since 2021. We will distribute the remaining \$30,000 to winners of the Final Awards which we will announce after the official conclusion of the case per the Project Jengo Rules.

Relying on prior art, we filed petitions for inter partes review to the U.S. Patent and Trademark Office (“USPTO”) seeking to invalidate Sable’s patents. The inter partes process is an administrative proceeding that involves filing briefs for administrative patent judges at the USPTO to determine if a patent should have been issued in the first place. In many cases it’s a helpful process available to try and limit the threat of patent trolls. In May 2022, to avoid responding to one of those petitions–and to avoid the risk that its patent would be canceled altogether–Sable voluntarily canceled all of the claims asserted against Cloudflare under one of its patents. And in January 2023, we were successful in invalidating the portions of a second Sable patent that had been asserted against us.  

Two patents down, Sable refused to give up. By December 2023, through its petitions to the USPTO and related motions before the court, Cloudflare had successfully narrowed the number of patents and claims at issue from approximately 100 claims across four, to just five claims from two patents. Then, at the pretrial conference on December 13, 2023, the court issued summary judgment in our favor on a third Sable patent. Summary judgment is a process where the court determines that an argument is so clear that no reasonable jury could rule otherwise. This further narrowed the case to a single asserted claim on a single patent–claim 25 of U.S. Patent No. 7,012,919.

Through years of hard work, we’d successfully whittled down Sable’s case from about 100 claims across four patents to just one claim of one patent. But despite all that success, the fact remained…we were heading to trial, and it can be difficult to know what a jury will decide–and what damages they may award–on heavily technical issues.

Trials and tribulations for Sable IP and Sable Networks

We weren’t just heading to trial, we were heading to the Western District of Texas. Waco, Texas, to be precise, where Sable chose to file its lawsuit. The Western District of Texas has in recent years become a popular venue for patent plaintiffs, as it has a reputation for being a friendly jurisdiction for patent holders.

Sable’s trial story was not compelling. On the technical merits, Sable had the unenviable task of trying to map decades-old flow-based hardware router technology onto Cloudflare’s modern, software-defined packet-by-packet architecture. They attempted to do so through a series of hand waving exercises, equating the “line cards” required by the patent to various different software and hardware used by Cloudflare, and suggesting that any flow of packets across Cloudflare’s network could be construed as the specific “micro-flows” at the center of its patent.

Beyond the technical issues, Sable’s story was simple, though not very attractive–Sable wanted money. Having acquired rights to the patents of a failed hardware company, they were seeking to “monetize” those patents to the greatest extent possible. If that meant leveraging a patent related to decades-old router hardware to sue a cloud-based service provider, so be it. And if it required leaps of logic and untethered claims that might make a toddler blush, oh well.  

When it was our turn, we told the jury our story. How Cloudflare was founded to help build a better Internet by moving past old, hardware-based solutions to new, cloud-based solutions delivered through our global network. We explained the hard work put into building our network, and all the services that sit on top of it. One of our outstanding engineers described what it’s like to create a new product, working with teams of engineers, product managers, and others to bring something exciting to the market for the first time.

We drilled down into Sable’s twenty-year old patent, explaining the many reasons why the patent does not describe anything that Cloudflare actually does. Among other things, the patent requires various steps to be performed at a “line card,” and Cloudflare’s accused edge servers don’t include a single such line card. And while the patent focused on flow-based routing, Cloudflare designed its system to perform packet-by-packet inspection to protect against malicious traffic. We also explained that the patent claim asserted against Cloudflare is invalid–and never should have been issued–because it was obvious in view of the prior art and lacked the required written description. In fact, Sable’s patent covered, at best, only technology that had already been described by inventors at Nortel Networks and Lucent Technologies–leading routing technology companies at the time.  

During closing arguments, Cloudflare’s trial lawyer made one thing clear–this case was about more than Sable or Cloudflare. The patent system was designed to foster innovation and promote the progress of science, but what Sable was doing was exactly the opposite: bringing meritless cases in an effort to turn a buck, and stifling progress in the process. That distortion and abuse of the patent system has to stop and, ultimately, only the jury had the power to end it.

To our great satisfaction, the jury answered that call. The jury’s decision did not take long. Less than two hours after leaving the courtroom to deliberate, the jury returned with a verdict that sends a message far beyond the courthouse. No infringement by Cloudflare, and Sable’s patent is invalid.

What’s next

We’ll enjoy this verdict for a long time, but the hard work doesn’t stop here. Cloudflare is dedicated to rebalancing a system that is being distorted by trolls like Sable. As part of our efforts, we look forward to announcing the final awards for Project Jengo on this blog following the conclusion of the case. We’ll also plan to share additional thoughts and insights we’ve gleaned from facing down a troll at trial.

For now, we want to express our sincere gratitude to the judge and jury for the hard work they put in at trial, including the jury weighing the evidence and understanding the complex technology at issue in the case. Cloudflare is deeply grateful for the jury’s time and efforts over the past week, its careful consideration of all the facts, and for its verdict. We also again want to thank our amazing trial lawyers from Charhon Callahan Robson & Garza PLLC, and The Dacus Firm. If you end up with a patent troll problem, we recommend them highly.

Three new winners of Project Jengo, and more defeats for the patent troll

Post Syndicated from Ethan Park original https://blog.cloudflare.com/three-new-winners-of-project-jengo-and-more-defeats-for-the-patent-troll/

Three new winners of Project Jengo, and more defeats for the patent troll

Three new winners of Project Jengo, and more defeats for the patent troll

Project Jengo is a Cloudflare effort to fight back against patent trolls by flipping the incentive structure that has encouraged the growth of patent trolls who extract settlements out of companies using frivolous lawsuits. We do this by asking the public to identify prior art that can invalidate any of the patents that a troll holds – not just the ones that are asserted against Cloudflare.

Since we launched Project Jengo over five years ago, we’ve given out over $135,000 to individuals who helped us find prior art to invalidate patents owned by patent trolls. By invalidating those patents – many of which are so blatantly marginal or broad that they never should have been granted in the first place – we hope to decrease the amount of harassment and frivolous lawsuits that patent trolls bring against innovative technology companies.

Today, we’re excited to announce three new Project Jengo winners. These individuals have helped us push forward our effort to take down patent trolls, and continue to fight trolling in favor of innovation.

The patent troll

The current case involves a patent troll called Sable Networks who asserted four patents that generally describe a flow-based router or a mechanism for identifying and penalizing misbehaving flows against Cloudflare. We’ve implemented Project Jengo against Sable on those four patents and their six other patents, which they haven’t asserted against Cloudflare. Today’s recipients have helped us in that fight.

And we continue to fight Sable Networks before the Court and the U.S. Patent Office as well. We have a major case update in that regard as the U.S. Patent Office agreed that most of the claims from Sable’s ’593 patent should have never been issued in the first place, which means Sable is down to two patents in their lawsuit against Cloudflare. More on that later, but first, here are the three winners from Chapters 4, 5, and 6 of Project Jengo!

Chris Wheeler from Georgia, who has a patent of his own

We are excited to announce Chris Wheeler as the winner of the 4th chapter of Project Jengo! Chris is the CTO and a co-founder of a software startup in Macon, Georgia called Tier2 Technologies, and he is now $5,000 richer!

When we asked where he had heard about Project Jengo, Chris told us:

“I heard about Project Jengo from one of your blog posts. I often read your blog on my phone from my children’s bedroom at night while I’m waiting for them to fall asleep. I’m a huge fan of Cloudflare and use your services myself extensively.”

As for why he submitted, Chris holds a patent, and submitted to Project Jengo in part because he was “drawn to the idea of helping protect the integrity of the patent system.”

Chris submitted a paper titled “A Framework for Alternate Queueing: Towards Traffic Management by PC-UNIX Based Routers” as prior art to Sable’s ’932 patent. This paper was published in 1998. On the other hand, Sable’s ’932 patent was filed in 2002 and is alleged to cover routers utilizing aggregate flow blocks that include tunnel-specific information for selected network paths. The aggregate flow blocks are also alleged to store statistics pertaining to the selected network paths. This paper, published nearly four years prior to the filing of the ’932 patent, describes a PC-UNIX based router that implements a FreeBSD Alternate Queueing (ALTQ) driver with traffic management functionalities to select network paths. ALTQ traffic management uses queueing disciplines based on stored statistical analysis of selected paths for network traffic, and this is a great prior art reference to the ’932 patent.

His breakdown of his submission is interesting too:

“When I saw the claims in 6,977,932 I immediately thought ‘They are just describing QoS in a weird convoluted way’ and I knew QoS had existed long before the patent date of 2002. I have used the ALTQ packet scheduler in pfSense a lot in the past throughout my career, and that was the first thing that came to my mind. I did a quick Google search for ‘ALTQ’ and found the oldest reference I could find, which was from 1998.”

We appreciate his efforts, as he managed to find useful prior art from four years before the patent in question. Thank you, Chris!

Peter’s first foray into patent law makes him $5,000 richer!

Additionally, we are awarding $5,000 to Peter S. for finding us a valuable thesis paper! This is Peter’s first foray into patent law, and we are so thankful for his time and effort.​​

The thesis of Rena Whei-Ming Yang found by Peter describes the solution of the ʼ593 patent almost five years before Sable even filed for the patent! The ʼ593 patent is the Sable patent concerning the detection of “bad” flows. Yang—years before Sable—developed the same thing: “This thesis studies a means of using such mechanisms to identify nonadaptive network flows, and proposes a protocol to push this information, along with penalization responsibility, towards the flows’ sources.” What Sable calls “bad,” Yang labels “nonadaptive.” The important thing is that Yang’s work predates the ’593 patent’s alleged new solutions by years, making it a great find. Thank you, Peter!

David who hopes the Patent Office will adopt new technologies for better examinations

Finally, we are excited to announce the winner from the 6th Chapter of Project Jengo, and that is David H. who is receiving a $5,000 prize! David’s background is in accounting/finance, but became interested in patents and IP back in 2010. He heard about Project Jengo through a LinkedIn post and thought it was an excellent idea, so he put his search skills to task.

David identified U.S. Patent No. 6,859,438 for us, which is a patent entitled “Policy Based Quality of Service.” This ’438 patent discloses the same “quality of service” (or QoS) technology claimed in Sable’s ’431 patent, with one important difference: the disclosure of the ’438 patent dates back to an application filed on February 3, 1998, but the disclosure in the ’431 patent wasn’t filed until (at the earliest), April 19, 2000. So the technology explained in the ’438 patent—a flexible, policy-based, mechanism for managing, monitoring, and prioritizing traffic within a network and allocating bandwidth to achieve true QoS—beat Sable to the punch on the “new” switching technology claimed in the ’431 patent that purports to provide a previously “unavailable” degree of quality of service, by more than two years! Excellent find, David!

He also shared his thoughts on the current state of the U.S. patent system:

“The US Patent Office continues to issue patents that are likely invalid on a number of grounds with a large proportion to big tech. The USPTO has a nice fee generating business, being able to get paid issuing patents and subsequently canceling them in post grant proceedings. I am hopeful the USPTO adopts new technology to aid examiners in their prosecution efforts.”

Thank you, David!

* * *

Congratulations and our deep gratitude to all three winners from Chapters 4-6 of Project Jengo. Remember, we have committed \$100,000 to this prior art search, and we still have $50,000 to give out! The search is still ongoing, so please help us beat the patent troll by submitting prior art references here. The submission deadline for Chapter 7 is January 31, 2023, so don’t delay your search!

Three new winners of Project Jengo, and more defeats for the patent troll

Case updates: Another patent thrown out of the case, and the few remaining claims further whittled down

When Sable sued us almost two years ago in March 2021, they accused us of infringing four different patents, which included a total of 134 claims. We previously shared how we successfully killed off one of the four patents, known as the ’932 patent.

Today, we have more great news to share. The U.S. Patent Office agreed with us that all the claims from the ’593 patent that Sable asserted against us are invalid. This means we were able to get yet another patent – the ’593 patent – dropped out of Sable’s case against us.

A single U.S. patent usually has somewhere around 10 to 20 claims (here’s a Wiki page explaining what a “claim” is in patents), but Sable’s ’593 patent included a whopping number of claims – 44 to be exact. As we previously shared back in January 2022, the Patent Office ruled that we would likely be successful in invalidating all 44 claims of the ’593 patent and instituted a trial proceeding known as inter partes review (IPR). Since then, Sable voluntarily canceled 17 of the claims – presumably because they themselves knew those claims were invalid. Of the remaining 27 claims, the Patent Office determined that 23 claims were invalid. Because none of the four surviving claims – which escaped invalidation only by virtue of a procedural technicality – are part of Sable’s case against us, the ’593 patent is no longer asserted against us. And given the record we have established before the Patent Office, we don’t think Sable will try asserting those four surviving claims from the ’593 patent against any of our peer companies. But even if Sable does, they should be able to leverage what we’ve done and kill off the patent completely.

Our victory was covered by multiple legal news outlets such as Bloomberg Law and Law360 (unfortunately, subscription required). A special shoutout to our attorney Jim Day of Farella Braun + Martel, who fought hard to get rid of these toxic claims that should have never been issued! With two patents completely out of the case, there are now only two patents at issue in Sable’s case against us.

We have even more good news to share! In October 2022, the Court found nine claims from one of the two remaining patents – the ’431 patent – to be invalid for failure to meet certain statutory requirements. This means Sable only has 14 claims from two patents in the case. Considering that we started this journey with Sable asserting 131 claims from four patents against us, we are proud of what we have accomplished thus far. We successfully persuaded the Court and the Patent Office to cancel, or forced Sable to voluntarily cancel, almost 90% of those 131 claims. Those victories not only help us in our case against Sable, they will also protect all innovative companies from being accused frivolously of infringing those invalid claims.

Our trial is scheduled for November 2023, but we will have more updates for you before then. Stay tuned, and remember to go look for prior art references to help us in our fight against this patent troll!

Three new winners of Project Jengo, and more defeats for the patent troll

Arkansas engineer wins round 3 of Project Jengo, and Cloudflare continues to win at the Patent Office

Post Syndicated from Will Valle original https://blog.cloudflare.com/arkansas-engineer-wins-round-3-of-project-jengo-and-cloudflare-continues-to-win-at-the-patent-office/

Arkansas engineer wins round 3 of Project Jengo, and Cloudflare continues to win at the Patent Office

Arkansas engineer wins round 3 of Project Jengo, and Cloudflare continues to win at the Patent Office

We are excited to announce another Project Jengo winner, and provide you with an important update on our fight against Sable Networks.

As a reminder, Project Jengo is Cloudflare’s efforts to flip the incentive structure that has encouraged the growth of patent trolls that seek to leverage overbroad and unpracticed patents to extract settlements from operating entities. We do this by refusing to settle patent cases brought against us by trolls, and instead, use a crowdsourced bounty to identify prior art that undermines the value of the troll’s patents, and not just the ones asserted against Cloudflare. This is the second iteration of Project Jengo, which is focused on a patent troll called Sable.

Even though the case against Sable has been active for over a year now, and we’ve already achieved some great results, we haven’t let up the pressure. We’re now also giving out Cloudflare T-shirts to new Project Jengo participants – all you need to do is submit prior art related to any of the Sable patents this year and the first 100 participants with a U.S. mailing address will receive a Cloudflare t-shirt.

$5,000 to Project Jengo’s round three winner!

We have already awarded $30,000 so far to winners of the Sable-focused Project Jengo. Last quarter, we awarded $10,000 to a former R&D engineer from Rennes, France who heard about Project Jengo through Hacker News. This round, we are excited to announce that we’ll be awarding Curtis Carter with $5,000!

In explaining why he participated in Project Jengo, Curtis said:

“As a maintainer/contributor for several open source projects (NuGetDefense being my main project), I’m always afraid some troll is going to attack one of my projects or a project I contribute to, and I may not be able to afford stopping it.”

That is why we started Project Jengo – to help support and protect innovators against malicious patent trolls. They hinder innovation of productive companies, and trade in fear as currency. As Curtis highlighted, the future is brighter without trolls:

“I think what you are doing is for the good of future generations, and I’m proud I got to participate even if I hadn’t won anything.”

Developers and innovators should not work in fear that trolls will target them for frivolous settlements. The patent system was built to promote innovation, not destroy it.

Not only does Curtis maintain NuGetDefense (a known vulnerability scanner for the .Net NuGet ecosystem), he’s also an engineer at Tech Friends, Inc., a software development company that he claims is the best employer for software developers in Northeast Arkansas. Impressively, he is self-taught.

“This was the first time in a while that I dug into old research documents and patents. Honestly, the people who originally put this stuff together were often brilliant, and their work is a joy to read (even if it’s a bit dry).”

As for his submission, Curtis Carter took on the challenge of finding prior art for United States Patent No. 8,085,775, an over broad patent that Sable owns and generally covers a mechanism for identifying, classifying, and controlling flows over a network.

Sable chose not to assert that patent against Cloudflare in our ongoing litigation. The prior art he found specifically addresses “methods, apparatuses and systems directed to a flow-based, traffic-classification-aware data collection and reporting system…” according to its abstract (US Patent No. 7,385,924). Furthermore, the prior art Curtis found pre-dates Sable’s patent by just over three years.

Curtis’s discovery has the added benefit of teaching many concepts to the narrower ’593 patent that Sable is asserting in the lawsuit. The narrower patent specifically addresses a method for identifying and penalizing misbehaving flows in a network. Side note: the patent is so old that its background description references some ancient applications:

“With the advent of file sharing applications such as KaZaA, Gnutella, BearShare, and Winny, the amount of peer-to-peer (P2P) traffic on the Internet has grown immensely in recent years.”

The prior art found by Curtis demonstrates TCP’s use of a sliding window scheme in which flow control is exercised over incoming flows. This is exactly the type of flow control both patents purport to cover. Furthermore, we were impressed with Curtis’ efforts to find prior art related to one of the narrower patents owned by Sable – well done, Mr. Carter!

As for what his discovery looks like, take a look at the first sentence of the patent’s abstract to get an idea.

Methods, apparatuses and systems directed to a flow-based, traffic-classification-aware data collection and reporting system that combine flow-based data collection technologies with enhanced traffic classification functionality to allow for analysis and reporting into aspects of network operations that prior art systems cannot provide.

If you haven’t won yet, don’t be discouraged. We have committed \$100,000 to this prior art search, so we still have \$65,000 to give out!

Arkansas engineer wins round 3 of Project Jengo, and Cloudflare continues to win at the Patent Office

Sable has one less weapon in its arsenal as it admits defeat on a patent!

As part of our fight against Sable, we’ve been involved in a year-long process before the US Patent Office called Inter Partes Review (or “IPR”) with the goal of invalidating patents held by Sable Networks. You can check out our blog post from 2017 that outlines how the IPR process works. In our last blog post, we were pleased to announce that the Patent Office agreed to institute IPR on some of Sable’s patents. Today, we’re even happier to announce that we’ve officially killed off Sable’s ‘932 patent.

Once the Patent Office agrees to review the validity of a patent, the owner of the patent typically files a brief defending the validity of its patent (because if you own it you should think it’s valid, right?). But in this case, instead of explaining to the Patent Office why its ’932 patent is valid (or why Cloudflare is wrong), Sable simply decided to voluntarily cancel all claims of the patent. Since there is no claim left for the Patent Office to review, the IPR should be terminated soon, and we’ve effectively obtained the full relief requested!

This is a big win for anyone concerned with abuse of the patent system, including all the companies that Sable Networks previously attacked with this patent, including Dell, Cisco Systems, Hewlett Packard, Palo Alto Networks, Juniper Networks, Aruba Networks, amongst others. Yes, as absurd as it sounds, this patent has been used by Sable Networks to help squeeze out settlements from numerous productive technology companies. This victory means that Sable has one less patent to try to leverage in its attempts to abuse the patent system.

Coinbase announces that it will fight back against patent trolls

As we mentioned in our February blog post, part of our goal with Project Jengo is to spread the word that targets of these trolls can and should fight back and win. That’s why we were thrilled to see a recent blog post from Coinbase announcing that the company is following Cloudflare’s lead when it comes to pushing back on patent trolls. Trolls count on easy targets to fund their operations through settlements, so it’s great news that a major company like Coinbase has made clear that it will refuse to capitulate and will instead fight back.

Please keep your submissions coming!

We could not have gotten to this point without the help of the many Project Jengo participants. We have received hundreds of prior art references on Sable’s ten patents, and we have used many of those references in our efforts to kill off the patents that Sable asserted against us.

Thank you to everyone who has participated in Project Jengo for supporting the broader community and helping us take down a patent troll. If you haven’t participated yet, please consider submitting to our prior art contest.

Arkansas engineer wins round 3 of Project Jengo, and Cloudflare continues to win at the Patent Office

Former R&D Engineer Wins Round 2 of Project Jengo, and Cloudflare Wins at the Patent Office

Post Syndicated from Will Valle original https://blog.cloudflare.com/former-rd-engineer-wins-round-2-of-project-jengo-and-cloudflare-wins-at-the-patent-office/

Former R&D Engineer Wins Round 2 of Project Jengo, and Cloudflare Wins at the Patent Office

Former R&D Engineer Wins Round 2 of Project Jengo, and Cloudflare Wins at the Patent Office

The classic children’s fairy tale The Three Billy Goats Gruff tells the story of three goats trying to cross a bridge to a field of yummy grass, despite the monstrous troll that lives underneath the bridge and threatens to eat them. To beat the troll, the goats played on his greed and proceeded across the bridge in order from smallest to largest – and holding the troll at bay each time with promises of a larger meal if he waited for the larger goat to follow. In the end, the troll passed on attacking the smaller goats and was left to do battle with the largest goat who was able to defeat the troll, toss him off the bridge, and watch him float downstream. The goats were then able to enjoy the yummy grass, troll-free. In our fight against Sable Networks (patent troll), we plan on being that third goat, and our recent wins suggest we might be on track to do just that.

$10,000 to our second round of Project Jengo winner!

We started Project Jengo 2 last year as a prior art search contest, so we could enlist your help in the battle against Sable Networks. We committed $100,000 in cash prizes to be shared by the winners who were successful in finding such prior art, and last quarter, we gave out $20,000 to three lucky winners. This quarter, we are excited to announce our second round winner who will take home $10,000! The winner submitted prior art related to the asserted ’431 patent.

Former R&D Engineer Wins Round 2 of Project Jengo, and Cloudflare Wins at the Patent Office

“I do not master enough English to express how happy I am.”

We are happy to announce the winner for this round is Jean-Pierre Le Rouzic. Although Jean-Pierre is retired and living in Rennes, France, he decided to put his patent knowledge to work when he saw Project Jengo discussed on Hacker News. Jean-Pierre is a former telecommunications R&D engineer who wrote twelve patents in the 2000s that relate to online authentication and identity management. Impressively, he was one of the first users of Java at his company, and recalls using Java as early as 1996!

Jean-Pierre’s career experience certainly helped in his research – his Jengo submission was 24 pages and included a meticulously detailed claim chart. In particular, he addressed vulnerabilities in Sable’s extremely large scope for the ’431 patent addressing “micro-flow management.” You can read more detailed information about Jean-Pierre’s findings in the appendix to this blog post or all of the findings of Jean-Pierre and other submissions are available to anyone who may face a challenge from Sable’s claims here.

We enjoyed Jean-Pierre’s response to the good news:

I do not master enough English to express how happy I am, and how happy I am for Cloudflare if my work is useful. I find the idea of patent trolls hideous. The patent regulations should really be updated to enter the XXI century.

Jean-Pierre’s reasons for participating in Jengo were different from most other participants. As his current interest is in neurodegenerative diseases, specially ALS, and he said part of his motive stemmed from what he has seen in the medical industry:

The challenge faced by Cloudflare is close to my heart, because of its similarity to what is happening in the world of medical drugs. Cloudflare is facing an entity which is unreasonably stretching the meaning of their patent claims.

We could not agree more — we think Sable is beyond unreasonable, which is why we intend to change the incentive structure that makes things so easy for them, and we are so grateful for Jean-Pierre’s support (and all the other Jengo participants).

Also, worth noting, we were excited to see that both he and one of his daughters is a current user of Cloudflare!

My blog (padiracinnovation.org) uses Cloudflare, and I am a very satisfied user. The online shop of one of my daughter’s also uses Cloudflare.

Two patents at grave risk – U.S. Patent and Trademark Office rules that Cloudflare is likely to be successful invalidating two Sable patents in IPR proceeding!

Last year, we announced that we were facing a challenge from a patent troll called Sable Networks that was trying to weaponize decades-old and unused patents against us. With your help through the relaunch of Project Jengo, we became determined to outsmart the troll.

One of the steps we are taking, as Ethan mentioned in our August blog post, is seeking to invalidate the four asserted patents in the lawsuit through a procedure with the U.S. Patent and Trademark Office (Patent Office) known as inter partes review (IPR). As we previously explained, IPR is a trial proceeding that lasts for one year, conducted before the Patent Office, to determine whether or not a patent (or some of its constituent claims) should be invalidated. Importantly, the IPR process is only instituted after a party files an extensive petition that is reviewed by a panel of three administrative patent judges — who will only institute an IPR, if they believe a petitioner has a reasonable likelihood of succeeding in invalidating at least one claim from the challenged patent.

In December, after months of hard work and considerable attorney’s fees and expenses, we found out the efforts Ethan described last August had paid off — the first two of our four IPR petitions were granted by the Patent Office! For each of the challenged patents — the ’593 and the ’932 patents — an IPR proceeding has been instituted on every single claim — a total of 76 claims between the two patents. This is exceptional news for us, as the Patent Office has made a preliminary determination that we are likely to succeed on invalidating a vast majority of those claims, giving us a chance to invalidate those two patents in their entirety. This provides an independent path for defeating Sable’s lawsuit, because if the Patent Office declares a patent to be invalid — meaning that patent never should have been issued in the first place — the patent no longer exists, and we have effectively pushed the troll off the bridge. Now that we have two IPRs instituted, the Patent Office has one year from the date of institution to make their final decision on whether the challenged claims are valid or not.

And, by the way, it was pretty nice to see our diligence recognized:

“Moreover, the undisputed evidence here shows that [Cloudflare] acted diligently, filing its Petition only seven weeks after service of the complaint and well before preliminary infringement contentions were served.”

Decision Granting Institution of Inter Partes Review at p. 12 (IPR2021-00909) (Nov. 19, 2021)

Two more patents significantly trimmed back – Sable voluntarily abandons 34 of 38 claims in its other two patents before the Patent Office.

But this was only half the battle. There are four Sable patents at issue in the litigation. For the ’919 and ’431 patents, we filed separate IPR petitions on all 38 claims from those two patents last year. In response to our petitions, Sable voluntarily canceled 34 out of 38 claims from its own patents, which says a lot about what they think about the quality of their decades-old patents. The Patent Office subsequently declined to institute IPR on the four remaining claims. Sable is now left with only 4 out of the 38 claims to pursue in the litigation, and those four claims are far removed from Cloudflare’s products and services.

Bringing trolls out from under the bridge and into the light.

We are happy to see some more press coverage on the fight against Sable Networks. More press means that more people become aware of this issue and can help put a stop to future patent trolls. Most trolls merely send threatening letters and hope they can get a quick settlement from their threats without having to see the light of day by going to court or to the Patent Office to defend their claims. We are just one entity (that has enlisted your help) fighting against a villainous patent troll — but would it not be great to see other big companies fight back when they encounter their next troll?

  • “Cloudflare Lands Tribunal Review of Data Transmission Patent” — Bloomberg Law
  • “PTAB To Eye Patent Cloudflare Offered ‘Bounty’ To Help Kill” — Law 360
  • “Recently, Cloudflare Inc. succeeded in convincing the PTAB to institute in IPR2021-00969 against a Sable Network, Inc.’s patent directed toward data flow” — JD Supra

Please keep your submissions coming!

We could not have gotten to this point without the help of the many Project Jengo participants. We have received hundreds of prior art references on Sable’s ten patents, and we have used many of those references to help kill off the four patents that Sable asserted against us. While we have made some great progress together, we cannot let our guard down now. We will continue to fight vigorously, but just as in the Three Billy Goats Gruff, we need your support to take down a ravenous troll. Please consider submitting to our prior art contest, and please share the contest with co-workers, family and friends. On behalf of the Cloudflare community, thanks to everyone who has participated so far!

Former R&D Engineer Wins Round 2 of Project Jengo, and Cloudflare Wins at the Patent Office

Appendix – Jean-Pierre’s findings (US-6954431 compared to US-7406098)

The ’431 patent leveraged by Sable is titled “Micro-Flow Management” and concerns Internet switching technology for network service providers. The patent claims priority all the way back to April 19, 2000. The ’431 patent discloses a router that puts a label on packets for a given “microflow,” and forwards all the packets in that same microflow based on the label.

Our first blog post about Sable’s claims explained that the ’431 patent assertions were so broad, they could stretch to possibly even the “conventional routers” from the 2000s that routed each packet independently.

Thankfully, Jean-Pierre noted some similarities between the asserted ’431 patent and the patent he tracked down. US Patent No. 7,406,098 was first publicly available as early as 1999. The ’098 patent is related to the allocation of communication resources of a single node among a multitude of subscribers. In Jean-Pierre’s words, both the asserted patent and the ’098 patent concern “the need to allocate switched packets resources to a single communication among many.”

The first claim in ’431 is for “a method for managing data traffic through a network”, while the first claim in the ’098 is for “a method of allocating a resource in a communication system” — both of which Jean-Pierre found to read quite similar. As he described, in both cases there is a need to “allocate Internet (switched packets) resources to a single communication among many, this allocation is based on a classification.” Ultimately, the ’098 patent is noteworthy in that it demonstrates the obviousness of what Sable claims the ’431 patent covers. People of skill in the art (like the Qualcomm inventors from the ’098 patent), long before the ’431 patent, knew how to manage the flow of data using queues.

Take a look at the snapshot from the claim chart Jean-Pierre submitted:

Former R&D Engineer Wins Round 2 of Project Jengo, and Cloudflare Wins at the Patent Office

The language in Claim 1 of the ’431 patent deals with the “delegating” of “microflows”, while Claim 14 of the ’098 patent deals with the “assigning” of “application flows”. We have hardly scraped the surface here, as there are plenty of other similarities between the two patents — take a look for yourselves!

We are grateful for Jean-Pierre’s participation in Project Jengo, and we are looking forward to receiving more prior art as we continue to fight Sable Networks!

The First Three Winners from Cloudflare’s Project Jengo 2 Share $20,000

Post Syndicated from Ethan Park original https://blog.cloudflare.com/project-jengo-2-first-three-winners/

The First Three Winners from Cloudflare’s Project Jengo 2 Share $20,000

The First Three Winners from Cloudflare’s Project Jengo 2 Share $20,000

This past April we announced the revival of Project Jengo in response to a patent troll called Sable Networks that sued Cloudflare even though our technology and products are nothing like what’s described in Sable’s patents. This is only one part of Sable’s larger campaign against innovative technology companies — Sable sued five other technology companies earlier this year, and had sued seven other technology companies under the same patents last year.

Just as we have done in the past, we decided to fight back rather than feed the troll — which would only make it stronger. You see, unlike Cloudflare and other operating companies that were sued, Sable Networks isn’t in the business of providing products and services to the market. Rather, it exists to extract settlements out of productive companies that are creating value to the society.

Project Jengo is a prior art search contest where we ask the Cloudflare community for help in finding evidence (“prior art”) that shows Sable’s patents are invalid because they claim something that was already known at the time the patent application was filed. We committed $100,000 in cash prizes to be shared by the winners who were successful in finding such prior art.

The first chapter of this contest has now ended, and we received almost 400 prior art references on Sable’s ten patents. And over 80% of those references were submitted to kill off the four patents that Sable asserted against us. Let me first say thank you to everyone who submitted these! Here at Cloudflare, we are constantly energized and motivated by the support from our community, and we are heartened by our community’s participation in Project Jengo.

Three winners = $20,000 in total cash prizes (so far)

We reviewed every eligible submission and scored them based on the strength of the prior art reference(s), difficulty, the story provided by the entrant, and the clarity and thoroughness of the explanation. Today, we are announcing the selection of three great submissions as cash prize winners in this round. The first winner will receive \$10,000, and the other two will each receive \$5,000.

Keep ’em coming

As you’ll recall, Sable is using a set of patents from the early 2000’s related to a flow-based router called Apeiro, which was never widely adopted and eventually failed in the marketplace over a decade ago. Sable is now stretching those patents way beyond what they were meant to cover. Sable’s flawed reading of these patents extends infringement to basic routing and switching functionality known long before any alleged invention date, including “conventional routers” from the 2000s that routed each packet independently without any regard to flows. The way Sable is interpreting its patents so broadly and the fact that Sable has gone after numerous technology companies selling a wide range of different products worry us — by its current standard, Sable could target anyone using a router, and that would include anyone with a WiFi router in their home. You can help stop this madness by participating in this contest and finding prior art on any of Sable’s ten patents that we’ve identified — not just on the four patents that Sable asserted against us.

The contest is ongoing, and we still have $80,000 to give out. The sooner you send us quality prior-art references, the more helpful they will be in invalidating Sable’s patents, so please make your submissions here as soon as possible. Already made a submission, but you aren’t one of the three winners today? It isn’t over — we will consider your submission again when we announce our next round of winners in November (and you can, of course, also enter a new and better submission). We have many more rounds to go as long as Sable’s case is pending against us, which means earlier submissions benefit from being considered in multiple rounds of this contest, so please don’t delay and make your submission now.

If this were a boxing match, then we would still be in the first round, sparring in the ring, with Sable up against the ropes. So jump in, win some cash, and help us KO Sable Networks.

The First Three Winners from Cloudflare’s Project Jengo 2 Share $20,000

Matthew M. “can’t stand blockers to true American ingenuity” and now has $10,000

IETF RFC 2702 (Requirements for Traffic Engineering Over MPLS)

The First Three Winners from Cloudflare’s Project Jengo 2 Share $20,000

This document is one of the 17 prior-art references sent to us by Matthew M. We are highlighting the Internet Engineering Task Force (“IETF”) Request for Comments (“RFC”) 2702. An RFC is something like a step in an industry-wide brainstorming session where an idea or ideas are floated to others in the industry with the aim of building something great everyone can use. The RFC found by Matthew M. is a good example of the process in which engineers from MCI Worldcom are building on the work of engineers from companies like Cisco, IBM, Juniper, and Ascend. All of these companies were well aware of the concepts Sable is now trying to claim its patents cover, including “micro-flows,” label-switched paths, and the basic concept of choosing a path through the network based on QoS information in a packet. The IETF’s records of these industry-wide brainstorming sessions are great evidence of Sable’s overreaching interpretations of its patents.

As for the winner, Matthew has a degree in Computer Networking & Cybersecurity, and manages a small team of developers at a FinTech company. Like most Project Jengo participants, he wasn’t motivated solely by the money. He told us, “I quickly learned just how vague you can make a patent and it’s quite disgusting.” We agree! Matthew shared that he thinks patent trolls “provide no value to society and only exist to strip true business men and women of their hard-earned craft.” He underscored this point when we reached out to congratulate him on the $10,000 prize:

I can’t stand blockers to true American ingenuity and patent trolls stand to destroy hard-earned work using minuscule technicalities in our broken justice system. I am happy to do my part in helping Cloudflare get the upper hand in this lawsuit and hopefully flip it on its head and take down Sable Networks altogether.

Matthew also highlighted the tremendous damage that patent trolls can do to companies and innovation:

I think patent trolls are one of the biggest stiflers of innovation. Companies like Cloudflare could be spending all their time working on new products that provide value but instead, they must allocate resources to fight off cowardly lawsuits like this one.

This submission will be put to good use in our fight against Sable, and we were happy to award Matthew with his prize money. We smiled when Matthew exclaimed he was “speechless” after finding out that he won. Congratulations, Matthew!

Pedro S. enjoyed a trip down memory lane and now gets to enjoy $5,000

Ascend/Cascade products and software implementing IETF RFC 1953 (Ipsilon Flow Management Protocol Specification for IPv4)

The First Three Winners from Cloudflare’s Project Jengo 2 Share $20,000

This winning submission also included an RFC from the IETF. These records from the important work of the IETF members ensure Sable won’t be able to take credit for things it simply didn’t invent. The neat thing about RFC 1953 is that the submitter connected it with actual products from companies called Ipsilon Networks, Inc. and Ascend Communications. There appear to be similarities between those products and the technology Sable is now claiming to have made, like the inventions of the ’919 patent. The problem for Sable is that Ipsilon and Ascend appear to have done it first! Ipsilon and Ascend were acquired by other companies so finding details about their innovative products and technology may be difficult, but we’re going to try. It may be that the submitter or someone reading this post can help.

The submission came from Pedro S., who heard about Project Jengo on the Security Now podcast. Pedro has spent 20 years in various technical roles, including a position at Ascend Communications in the 1990’s where he became familiar with their products. Today he is working at a cybersecurity company in the Bay Area. When asked why he chose to participate, he bluntly responded with “I hate patent trolls — I also enjoyed the trip down memory lane as some of the stuff I submitted comes from my days at Lucent.” We are happy to hear he enjoyed participating in the fight! We’re enjoying it too, thanks to the participation of folks like Pedro.

Congratulations, Pedro!

Stephen “learned a LOT” and earned $5,000

United States Patent No. 7,107,356 (Translator for enabling logical partitioning of a network switch)

The First Three Winners from Cloudflare’s Project Jengo 2 Share $20,000

This submission pointed us to U.S. Patent No. 7,107,356 (“’356 patent”) for its relevance to Sable’s U.S. Patent No. 7,630,358 (Mechanism for implementing multiple logical routers within a single physical router). The ’358 patent hasn’t been asserted against Cloudflare (at least not yet), and this is a good example of the enthusiasm of our community to comprehensively search for prior art relevant to both Sable’s currently asserted patents and those it may use to sue other companies later down the road. The ’356 patent found by our final winner in this round of Project Jengo carefully describes the guts of a router, and this relatively straight-forward patent makes short work of Sable’s overreaching claims of invention. Rest assured, if Sable is looking to assert the ’358 patent against Cloudflare or some other company down the road, our community is well-prepared to meet the challenge.

The submission comes from Stephen F., a web developer at a managed IT company working on custom websites. When his IT coworker shared the Project Jengo announcement in the office chat, he decided to participate. Stephen has never done prior art search before, but he was eager to participate and spent an entire day looking for prior art:

I’m submitting because I love Cloudflare and how it has made my life easier as a web developer … I’ve had to learn a lot more about routing and patent law today, and spent several hours looking at documents, scholarly journals, etc.

Even though this was his first time researching something like this, he understood the importance of beating Sable Networks:

I stand firmly against patent trolls like Sable, and decided to spend my day looking into prior art for the sake of Cloudflare’s continued success.

Not only did Stephen understand the importance of beating Sable, he also understood the challenges in doing a prior art search, but that didn’t stop him! We admire his tenacity and are impressed with his efforts, and some of the challenges he had to overcome during his search:

I needed to find where the patents could have been stolen/read from each other and what the offending points of the patents would be. During my research I learned a LOT about patent law, which was pretty challenging!

Congratulations, Stephen!

All the references we’ve received are now available

We received almost 400 prior art references thus far, and as promised we are making them public. As a reminder, we are collecting prior art on any of the patents owned by Sable, not just the ones asserted against Cloudflare. You can go to the webpage we’ve set up to see them, and we hope this information is of use to anyone who is sued by Sable down the road.

The fight continues

Project Jengo continues to capture the attention of tech media. It’s important to us to keep the narrative alive — the more awareness we can spread about the true harm of patent trolls, the more likely we are to inspire other well-resourced companies to refuse to capitulate. If we do this together, we’re far more likely to set a new standard, and ultimately, find the antidote to the ever-growing number of patent trolls that plague productive companies. If we enter the battle alone we are strong, but if we fight together we are unstoppable! Here’s what we’ve seen since our initial blog post was published (news outlets appear to be just as enthusiastic as we are!):

  • “Cloudflare offers $100,000 for prior art to nuke networking patents a troll has accused it of ripping off,” – The Register
  • “Instead of just saying it wouldn’t settle, Cloudflare set out to completely destroy the patent troll who sued it, ” – Techdirt
  • “The idea is to deal a big enough blow to Sable that not only is its case against Cloudflare hobbled but also future cases against other entities.” – Techcrunch

Litigation update — where are we five months in?

It has been five months since Sable Networks sued us in Waco, Texas, and we want to share a quick update on the litigation front. Since then, we have filed four petitions with the U.S. Patent and Trademark Office for inter partes review (“IPR”), seeking to invalidate the four asserted patents. As we previously explained, IPR is a procedure for challenging the validity of a patent before the U.S. Patent and Trademark Office, and it is supposed to be faster and cheaper than litigating before a U.S. district court. Of course, faster and cheaper are relative — it still takes about 18 months to invalidate a patent using this procedure, and the filing fees alone for the four petitions were over $200,000. It is easy to see how the exorbitant cost involved in patent litigation allows patent trolls to flourish and why so many companies are willing to quickly settle.

Aside from the IPRs, our litigation is moving forward in district court. Sable served us with its preliminary infringement contentions, which are supposed to explain why it believes we infringe its four asserted patents, and we will be serving our preliminary invalidity contentions to Sable soon.

Sable went after six companies this year, and two of them have already settled and dropped out of the fight. We will continue to fight against Sable, and we hope to see our peers continue fighting against this patent troll with us. Please stay tuned for our next update in three months!