Blackbird shot down, patent nuked by judge in Cloudflare legal battle A US court has trashed a patent at the center of Cloudflare's legal war with patent troll Blackbird Technologies – and thrown out the latter's case against the web biz. In a victory for Cloudflare, Judge Vince Chhabria, sitting in a northern district court of California, ruled on Monday [PDF] that Blackbird's US patent 6,453, …
Some mad patents altogether there Ted.
This one: "Providing an internet third party data channel US 6453335 B1" has been done forever. If you did an availability request on a GDS in the early nineties (probably the late eighties) it would go to airline systems for inventory status, and for flight information, aggregate it all and present it to you. In essence, that's what the patent is claiming to 'invent'.
If you did an availability request on a GDS in the early nineties (probably the late eighties)
Well - we[1] joined Galileo as trainee TPF assembler programmers in 1989 (Galileo ran GDS - nice S/370 mainframes running TPF) but GDS didn't go live until 1991 (from memory[2]).
And, even worse, for quite a while, every query that hit the system went through code that I wrote (an update to the tape logging system that logged every query and had spinlocks to ensure that two things didn't try to write to the tape at the same time. If those spinlocks failed or my code crashed while things were locked it would have been very, very unpleasant).
And my wife worked in the Links team - basically, interchanging and parsing data to airline and hotel/car vendor systems. She stayed there longer than I did because I realised that I was a better PC techie than I was a mainframe assembler programmer..
And then, in a completely boneheaded[3] move, they closed the UK Dev/hosting centre & moved everything out to Denver - into a building really close to the existing US building, next to a Denver airport runway. They (the by-then US management team) were really, really surprised that, out of 700+ people, only about 20 volunteered to move out to the US. I think that they thought that everyone had the dream of moving to the US..
[1] My wife also joined. In fact, they offered her a job initally but not me (it was my first proper interview and I really, really made a mess of it). When she refused (because it would mean moving from Plymouth to Swindon and she wasn't prepared to do that if I didn't also have a job in Swindon), they reluctantly hired me too :-) I would have been happy being a kept man for a while - except for the fact that mortgage rates soon hit 15% and it took one of our wages just to pay the mortgage.
[2] We still (somewhere) have the T-shirts that got issued saying "We made it!". Now mostly used as cleaning cloths or as cat bedding.
[3] It was suggested that new t-shirts got issued saying "we threw it away" when they announced the UK shutdown. For some reason, the suggestion wasn't taken up.
Blackbird and its ilk are cynical pond-scum moneygrubbers, agreed, and it's encouraging that Cloudflare is going after these lice.
But the underlying problem is surely the patent system, which seems to have floundered hopelessly in the software era. I am not an expert or lawyer: but I do get the impression that the distinction between "copyrightable" and "patentable" has not been adequately and precisely analysed and implemented in law; and that what is considered patentable is simply way too broad. There are just too many patents out there for things which are not inventions, not particularly clever, imaginative, innovative or unique and which, even if they do represent something concrete enough to argue for patentability, are preceded by so many relevant, prior solutions that real originality is highly debatable. (Was the addition of a diode here a stroke of improbable, insightful genius? Or a mundane next step which at best improves, but certainly does not invent, a concept?)
The granting of so many unearned, invalid patents strongly suggests that the patent examiners are not doing their jobs very well. I take it as given that examiners are recruited from a reservoir of extremely knowledgeable subject-matter experts, given vast investigative resourcers and access to researchers and fact-checkers, and that any decision is automatically reviewed. This would seem to me a cast-iron case for government to invest heavily and intelligently, since a well-functioning and trusted patent system is surely one of the critical requirements of an economy which channels money to innovators and producers—instead of having it siphoned off by avarcious ambulance-chasers.
Whilst I've never been involved in the US Patent System, my understanding is that in the US, the Patent Office is paid primarily for granted patents. Therefore, it is in their interests to approve as many as possible. Since there is no comeback (patents invalidated in court later, bring no effect on the US Patent Office), there is nothing that puts the brakes on the process.
If the Patent Office lost a percentage of income based on the number of invalidated patents or they had to reimburse plus legal fees any patent holder who's patent is later invalidated. they would quickly stop approving so many ridiculous patents. But until then, naturally Patent Office Management want as many patents approved as possible...
my understanding is that in the US, the Patent Office is paid primarily for granted patents. Therefore, it is in their interests to approve as many as possible.
More importantly, it's in the interest of the US Federal government as a whole that the USPTO grant patents on flimsy grounds. I really don't think it has anything to do with what actual examiners, or any other employee of USPTO, believes. They work for the government, and the government wants them to be a profit center.
That said, in 2015 USPTO granted only 52% of total applications, and a slightly smaller percentage if you consider only utility patent applications. It can certainly still be argued that's too high, but it's not like they rubber-stamp everything that crosses the desk.
Sadly perhaps, you don't have to invent anything: you can just combine some things invented by others which solve a problem better (or differently) than an existing solution.
Say you had a cam which is stepped by a rotating spindle and encoded an optimal speed of winding cotton on to a bobbin (one of Granddad's patents) . Now the software (optimal speed per rev) could be encoded in a microcontroller. Both use others inventions, both are kind of obvious, it is the researched speed per rev which needed protection.
The lazy patents "solve X by a computer" without explaining how or what the advantage of this solution is.
Blackbird will have to appeal this because of this part
"The limitations [Blackbird's claims] recite generic computer, network, and internet components, none of which is inventive by itself."
This is the first challenge that has indicated the term "with a {computer|network|internet}" is no longer original and therefore invalid in a patent.
With a priority date of 1998 this ruling against this patent has the potential to invalidate every patent since then that has that disingenuous add on "with a"
This could really be huge if it survives the US appeals process.
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