Project Jengo Redux: Cloudflare’s Prior Art Search Bounty Returns

Again, here we are Project Jengo Redux.

Sable Networks, a firm that doesn’t seem to have conducted a legitimate business in almost ten years, filed a lawsuit against Cloudflare on March 15 citing patents that have nothing to do with the nature of our company or the services we offer. We have now encountered a patent troll lawsuit twice.

As regular readers of this blog (or readers of tech publications like ZDNet and TechCrunch) will recall of Project Jengo Redux, Cloudflare took a tough stance against patent troll Blackbird Technologies in 2017 and made it clear that we wouldn’t just go along with a nuisance settlement as part of what we thought was an unfair, unjust, and ineffective system that stifled innovation and threatened emerging companies. You can watch John Oliver’s or Silicon Valley’s stinging critiques of patent trolling if you don’t want to read all of our past blog pieces on the subject.

We promised to respond against patent trolls in a way that would subvert the conventional incentive system. We established Project Jengo, a crowdsourcing initiative to unearth proof of previous art to invalidate all of Blackbird’s patents, not just the one asserted against Cloudflare, Project Jengo Redux in addition to vigorously defending the case in court. It was a big success since we won the legal battle, invalidated one of the patents held by the patent troll, and published prior art for 31 of Blackbird’s patents, which anyone could use to either contest the validity of those patents or to more easily counteract their overbroad assertion. Most crucially, Blackbird Technologies reduced its employees and filed a lot fewer lawsuits after becoming one of the most active patent trolls in the US.

We’ll carry it out once more. You’re needed, too.

Changing the Situation — The $100,000 Bounty for Prior Art Sable Networks’ lawsuit and the disturbing tendencies it sought to solve when it first started Project Jengo fit together well. Sable is attempting to extend 20-year-old, antiquated patents far beyond what they were intended to protect. By expanding its claims to a business like Cloudflare, Project Jengo Redux it signals that it may try to extend its rights to those who merely use routers, that is, everyone who uses the Internet. It has already sued over a dozen technological businesses with a variety of different products and services in mind.

We are supporting a new prior-art challenge to find references for all of Sable’s active patents because we believe that Sable’s decision to file these lawsuits on such a shaky foundation should carry some risk connected to the fundamental merits of its patents and its arguments. We need the assistance of the Project Jengo Redux Cloudflare community to find prior art, or proof that the claimed technology was in use or well-known before to the filing of the patent application, that can be used to invalidate Sable’s patents. Additionally, we’ll make it worthwhile for you to try by paying $100,000 to be split among the victors of such a search.

Once more, we are pledging $100,000 to be divided among those who submit what we deem to be the most beneficial prior-art references that might be used to dispute the validity of Sable’s patents. As long as Sable Networks, Inc. v. Cloudflare, Inc., No. 6:21-cv-00261-ADA (W.D. Tex. ), which means until Sable fully drops the case (and with prejudice, meaning Sable can’t file again), there is a settlement, or the case has been decided by the court and all appeal rights have been exhausted, you may submit prior-art references.

We will choose winners from the submitted work and distribute a portion of the $100,000 as awards once every three months for the next two years or until the lawsuit is resolved, whichever comes first. After the case is over, we will decide on the final winners from all of the entries and distribute the leftover cash. Additionally, we will make any pertinent submissions accessible to the public.

The four Sable patents cited against us are listed below:

And here are the six remaining Sable patents:

We anticipate that making prior art on all of Sable’s patents accessible will benefit our case as well as those who choose to respond to Sable’s patent trolling by giving them an advantage and lowering their costs. This strategy may be a successful way to lessen the threat posed by Blackbird’s patents, as seen by the dramatic drop in employees and filings we observed after disclosing prior art on those patents.

On 49 of the Blackbird patents, we previously received 275 submissions from 155 different individuals. 18 participants received compensation from us in the end. We were encouraged by the number of Cloudflare community members who not only contributed to this work but also showed great enthusiasm and gratitude for the chance to be involved:

I’ve been disappointed and incensed by a number of patent cases over the years where I believe that so-called “patent trolls” have misused the patent system to hinder innovation and benefit from litigation. I liked what Cloudflare has done with Universal SSL before, especially with Jengo. I was eager to try and assist when the chance to perhaps have an impact on a true patent troll case came.

Security Engineer Adam

I’ve never won anything in my life, so I’m fairly ecstatic. And to do so in order to defeat malicious patent trolls? Without a doubt, today is one of my favorite days ever. I filled out the form because software patents are useless and obviously created to extort money from successful entrepreneurs for flimsy and transparent claims. Additionally, I was homeless at the time I turned in the assignment and spent the entire day in the library.
San Francisco Resurrecting Project’s Garrett Jengo
It’s worth taking a deeper look at this case and the underlying issues it reflects in order to understand why we are requesting your assistance in fighting back once more.

Cloudflare’s “case” against Sable Networks

The patents at question in this case were first used by Caspian Networks, a business that attempted to market what it referred to as a “flow-based router” in the early 2000s. Originally known as Packetcom, Caspian debuted their flow-based router, known as Apeiro, to the public in 2003. According to a press report from that era, Apeiro routers functioned similarly to conventional routers already in use, but with more memory and logic for managing packets from the same “flow.” The following is how Caspian distinguished their “flow-based” router from the conventional routers that were already in use in a 2003 slide deck:

Caspian closed its doors in 2006 despite its efforts to promote the advantages of its router.

The firm that is suing Cloudflare at this point is Sable Networks. Despite the fact that it doesn’t seem like much of an entrance. As far as we can determine, Sable briefly continued Caspian’s work and made an effort to market the flow-based routing technology. Sable attempted to do the same but was equally unsuccessful, and the most recent activity we could locate was from 2011. Following an extended period of seeming inaction, Sable’s attention last year moved to seeking to obtain money through legal action by making broad use of patents filed on Caspian’s flow-based router technology twenty years prior. So Sable turned into a patent troll.

Eight cases claiming violation of Sable’s router patents were filed in the initial round of litigation by Sable, and they were swiftly settled. Although the defendants in those lawsuits, such as Cisco and Juniper Networks, offer a variety of Internet services, they all at least produce and market networking hardware.

It’s interesting to note that all of those cases were resolved right before Sable would have had to take two actions that would have put its legal arguments to the test: (1) respond to a USPTO administrative proceeding questioning the validity of its patents; and (2) attend a district court hearing where the judge would have determined the proper interpretation and scope of the patent claims. As a result, before meaningfully litigating its claims or facing a binding court or administrative ruling that might have addressed or likely undermined Sable’s overly-broad assertion of those patents, Sable filed cookie-cutter lawsuits against eight defendants, waited for the defendants to respond, and then settled the cases.

Shortly after reaching settlements in the first eight instances earlier this year, Sable reversed course and instituted six new legal actions against a fresh group of Internet firms, this time including Cloudflare. Contrary to the earlier defendants mentioned, Cloudflare is not engaged in the manufacture or sale of routers or switches. Sable’s infringement claim is therefore not in doubt, and it has chosen a defendant who is motivated to respond.

This situation serves as a useful example of how patent trolls work. All four of the patents that Sable is claiming against Cloudflare were submitted between 2000 and 2004, when dial-up Internet access was still widely used, and they are all based on “flow-based routing” technology from Caspian, which is completely unrelated to the technology that Cloudflare uses in its goods and services. One of the patents Sable cites as an illustration is U.S. Patent No. 6,954,431, which is titled “Micro-Flow Management.” Almost exactly 21 years ago, on April 19, 2000, this patent was issued. The ‘431 patent describes a router that assigns a label to packets for a specific flow and forwards all of the packets in the same flow depending on the label, much like Caspian’s Apeiro routers from 2003:

It makes the claim that it can teach “[n]ew switching technology [that] relies upon state information for providing a previously unavailable degree of quality of service”; this is likely the flow-based routing technology Project Jengo Redux that Caspian included in its 2003 Apeiro but that the market rejected more than ten years ago.

The patents are currently being stretched well beyond what they were originally intended to cover by Sable. Many of Sable’s allegations of infringement seem to cover fundamental routing and switching capabilities that were in use long before any purported invention date. Sable’s reading of the ‘431 patent appears to broaden its scope to include any form of packet processing, maybe including the “conventional routers” from the 2000s that routed each packet independently.

Sable has shown that it intends to use its patents widely by making this leap. Sable can now make accusations against any individual or company utilizing a firewall or even a router with just a short step. According to its rationale, everyone utilizing a WiFi router at home could be Sable’s target. Furthermore, Sable has already asserted that firewalls, including firewall hardware and software, are covered by its patents. Once more, its absurdly wide interpretation puts everyone attempting to defend their networks from outside dangers at danger, not just big businesses.

You haven’t been paying attention to the current situation of patent litigation, where tiny businesses are being sued for utilizing copy machines, if you believe that you or your little business is safe since you haven’t really done anything illegal and no court would ever hold you guilty. The incentives for patent trolls won’t alter unless some of us fight back.

A flawed incentive system that is still flawed

The proliferation of patent trolls like Sable is caused by a misaligned incentive structure that is fueled by the exorbitant costs of battling off even fictitious patent claims. The average litigation cost for defending patent infringement claims brought by a non-practicing entity through trial and appeal was staggering $4,500,000 for big cases (i.e., cases with more than $25 million at stake), according to the 2019 Report of the Economic Survey by the American Intellectual Property Law Association. The average cost of the defense was $750,000, even in minor situations where the stakes were under $1 million.

Patent trolls see only benefits from each additional lawsuit they file since they are aware that the majority of defendants will settle for a portion of their anticipated litigation expenses long before infringement claims are heard in court. Regardless of the validity of their legal arguments, their business strategy is to file as many cases as they can because they are confident that the majority of defendants would agree to a settlement before the case is decided on its merits. As a result, they take nebulous technical patents that were issued in the past and apply them as liberally as possible to new technologies and new businesses. The majority of these trolls are non-practicing entities that don’t sell any of their own goods and just exist to tax other businesses.

After dropping for a few years, the number of patent lawsuits grew by around 12% in 2018 compared to 2019, and growing activity by non-practicing companies in the purchase of patents projected even more growth in the number of such cases in the future. A patent troll decided it was a good idea to file a lawsuit against a company that makes COVID-19 tests in the middle of a pandemic, according to the Electronic Frontier Foundation, which also noted that “some patent owners actually saw the rise of the COVID-19 health emergency as a business opportunity.” According to a recent report, there was a 43.3% increase in patent litigation in Q1 of 2021 compared to the same period a year earlier, and non-practicing entities had their busiest Q1 since 2015, fueled by the litigation finance industry, which is flush with capital. This trend is not showing any signs of slowing down.

We’ll say it again: Cloudflare is a staunch advocate of the patent system. We can confidently manage our business because to the 160+ patents that have already been granted to us. We can sell and offer our services globally, make improvements to our current goods, and create new ones. However, patent trolls exist in an universe where they can assert fictitious prospective uses of their patents without having to spend in hiring and paying personnel or figuring out and meeting market demands. The goal of Project Jengo Redux is to correct this unbalanced incentive structure by making the filing of pointless patent litigation cost-prohibitive. With your assistance, we can once more convey the message that by filing the incorrect case, patent trolls run the risk of losing not just one lawsuit but many more.

We hope you’ve had a good night’s sleep and are ready to resume your search for past art.