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Join Us In The Fight Against Patent Trolls

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On this blog, we have written a number of times about patent trolls, the patent system and our efforts to change it. Rackspace is increasingly the target of lawsuits filed on behalf of these patent trolls; suits that aim to disrupt our business and extract a tax on innovation. Patent litigation is the fastest-growing part of our operational expenses at Rackspace — faster than salaries, faster than R&D, faster than datacenter energy costs.

Not one of these suits comes from a competitor. No one claims that we surreptitiously “copied” their technology. And in our opinion, not one of the so called “software patents” being used against us and other businesses that are actually developing software is valid or infringed. Instead, all of these suits are from patent trolls (non-practicing entities or “NPEs” in polite company) that acquired software patents later and are using those patents as weapons to hold up the companies that actual employ people and build value in our economy.

We’re fed up, and we’re doing something about it. We are absolutely going to promote legislation to solve this problem. We particularly like an idea that Dr. Richard Stallman wrote about recently in a Wired article, namely, that the effect of patents are changed, such that developing, distributing, or running a program on generally used computing hardware does not constitute patent infringement. While nothing short of eliminating software patents will satisfy us, we intend to work hard on anything practical that will move the law in the right direction. That leads us to something that we think could make a difference.

At Rackspace, we believe that an open cloud will create the best opportunities for developers and end users. We also know that most of the innovation around computer systems and software now happens in the open source community. We see that innovation every day in the communities in which we participate, such as OpenStack. The problem is that so much of that innovation is in code that is invisible to the patent office.

Recently, we posted a new job on online employment and freelance job site Elance – you can see the text and the link below (an Elance account and log in are required). The job is the first in what we hope is a series of jobs where freelancers document important technologies in OpenStack and in other communities. We plan to make documentation available to the patent office via the IP.com database. By fanatically documenting the solutions that are developed in the OpenStack community, we hope to keep these fundamental cloud computing technologies open and publicly available for everyone to use, including our competitors. We also hope this will help keep these technologies out of the claws of patent trolls.

We don’t know if this will work. It may take some time. But it is the right thing to do.

You can view the Elance job post at: https://www.elance.com/job/35235531/proposals

And here is the full text of the post:

Creating descriptions of OpenStack technologies for prior art publication

We invite you to submit your proposal to create publications describing OpenStack networking technologies for ip.com’s Prior Art Database – see http://priorartdatabase.com/defensive-publishing.html.

This is a pilot program for the rapid, cost-effective development of prior art publications. If successful, we anticipate ongoing, recurring work to create prior art publications for other OpenStack technologies. We welcome your independent formulation of a scope of work and fee structure that meets our goals to define a repeatable process for creating searchable prior art publications for the benefit of the OpenStack community.

The deliverable will be provided as an article or series of articles in Plain Text (txt), Microsoft Word (doc), Rich Text Format (rtf), or HTML (htm/html). The article (or series of articles) should clearly and completely describe some aspect of the networking technologies at use in OpenStack, including installation and use of OpenStack networking technologies, the APIs, plugins, techniques, technologies and associated standards.

Project will be paid on per-article basis. When providing time and cost estimates in your proposal, please include each of the following:

1. Review of any materials that are relevant to the Quantum networking project and the use of software-defined networking (SDN) within OpenStack generally. This includes materials published at www.openstack.org and on other publicly accessible sites, such as developer documentation, wiki, developer mailing list, IRC postings, design summit blueprints and publicly accessible launch pad notes, articles discussing SDN, OpenFlow, OpenvSwitch, and other technologies for use with OpenStack Quantum.

2. Providing a 3,000-10,000 word written description of one or more aspects of the OpenStack Quantum technology, with particular emphasis on any new or innovative aspects. Each written description should focus on one aspect of the technology and include a title, abstract, relevant keywords, a description of the problem addressed, the solutions available within OpenStack, the implementation of those solutions, alternative implementations that are known or considered, and possible future uses of the technology.

Your fee proposal should not include the ip.com publication fee.

We would require the assignment of the copyright in your work, but would list you as the author of the work to the extent the ip.com publication platform enables the listing of separate author names. We may engage a subject matter expert to modify or expand on your work.

Please note that we are not trying to expand our rights in any intellectual property that is the subject of this request or your work. We hope to implement a rapid and cost effective means to protect the OpenStack community. If a suitable process/fee structure is developed via responses to this proposal, we expect to solicit further participation on the same terms.

Please submit your proposal no later than November 22, 2012. Please include in your proposal a statement of the time to complete the work, with a completion date no later than November 30.

About the Author

This is a post written and contributed by Alan Schoenbaum.

Alan Schoenbaum is Special Counsel for Rackspace.

Prior to joining Rackspace in 2005, he was a partner at Akin Gump Strauss Hauer & Feld LLP in San Antonio, Texas. Alan has more than 25 years of experience in corporate and securities law and mergers and acquisitions. Throughout his legal career he has represented public and private growth companies, venture capital funds and their portfolio companies. Alan received his B.A. in English and his law degree from the University of Texas at Austin.


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  • http://Scripted.com Ryan Buckley

    Hey Alan, we’re Rackspace customers and love the company. I think we can help – rather than go through Elance, we have awesome legal and tech writers and a process to manage large writing projects (and like I said our site is hosted on RS servers). I have a similar position against unwarranted trolling for patent lawsuits. If Scripted can contribute in some way, please let me know.

    Ryan
    Co-founder & COO
    Scripted.com

    • Alan Schoenbaum

      Thanks Ryan! It is good to hear about others who feel the same way we do.

  • http://blog.maclawran.ca Sean MacGuire

    Alan:

    Great post. As an inventor with a couple of patents, the best thing that can be done is making prior art more accessible.

    I created Big Brother – the first web-based systems and network monitor (at http://bb4.com) – what is less well known is that I wrote an article for Sys Admin magazine in 1996 about Big Brother and published the entire source code – throwing it into the public domain so someone else couldn’t patent it.

    Wouldn’t you know I get a call from an examiner at the USPTO about this very article. All I know is that article prevented quite a number of patents from being issued!

    What I’d love to see is code on Github well documented and searchable by the USPTO – maybe as published gists.

    One pretty big problem is that very few programmers could even tell you what you need to get a patent – they’re against ‘em, but can’t define what they are – so a little education here would also go a long way towards programmers being able to defend themselves!

    Publish and explain!

    • Alan Schoenbaum

      It is great that your publication has been so useful as prior art. As a community we need to do more documenting and teaching. It is a long process, but each little bit helps.

  • a

    hi, is anonymous publishing possible?
    Also Elance offer link says “Special user permission is required to access this page. “

    • Alan Schoenbaum

      Unfortunately, Elance requires a login to view the job posting – that is why we included it in its entirety at the bottom of the post. For those that want to respond, they will need to create a login on Elance’s system.

  • kinkfisher

    I see how much you really believe in “elimination of software patents”:

    http://www.google.com/search?tbo=p&tbm=pts&hl=en&q=inassignee:rackspace&num=10

    I suppose these are for defending against patent trolls, even though as NPEs, they are immune to patent countersuits.

    • Alan Schoenbaum

      If we could trade all of our patents for the elimination of this problem, we would do it in a heartbeat. As it is, we pursue patents because frequently the best way to avoid litigation is to cross-license with the party that is attacking you – but in order to do that, you need to have something to trade.

      We also use the Apache license for all of our open source contributions so that our patents are licensed to anyone who is participating in the open source community.

  • Richard Falk

    I’m sorry to say, but identification of prior art will not completely solve the problem unless you intend to spend time and money to actually invalidate the patents that are in the NPE’s portfolios. If you are planning to use the prior art after a lawsuit has been filed, you are too late since the pursuit of such a lawsuit will continue relentlessly since at that point it’s about extortionate recovery of at least some funds and maintaining a public reputation of not losing cases and being ruthless and feared. It doesn’t matter if you have non-infringement, prior art and even evidence that the patent owner’s application was rejected by the European PCT due to prior art but did not disclose this to the USPTO (i.e. inequitable conduct or fraud) — the NPE will not back down — I speak from personal experience about this. It will still cost you millions of dollars to fight them (including appeals), though a stronger case on your side will reduce the settlement payment you will need to make to have them go away.

    Though clearly patent reform would be a good thing, why isn’t there any discussion about attorney conduct? The rules of professional conduct should be changed to disallow repetitive pursuit of weak cases with cumulative penalties leading ultimately to disbarment. Courts do not see the cumulative harm (they only see one case at a time) and judges are loath to give sanctions and when they do they are merely a cost of doing business. Most businesses do not fight back anyway and instead choose to settle. Patents are not the only weak spot; ADA, CA Prop. 65 and Section 17200, patent marking, medical malpractice and personal injury (search “Texas PI to IP”), etc. are other areas where weak suits are used to extract extortionate payments. By the way, corporations are not without fault as well, squeezing out small inventors, but again attorneys are at the intersection of aggressive and ultimately abusive activity so should become the focus for preventing such behavior. Otherwise, you’ll just be playing a game of Whac-a-Mole and this abuse using the legal system as a weapon will just pop up somewhere else. Unfortunately, this abuse (just as with domestic violence) gets justified via logic, rationality and reasoning. It not only destroys trust in the legal system, but the general level of trust in society as a whole.

  • http://www.jblade.com Hank Bruning

    JBlade is a customer and I’d like to offer help. If any of the trolls involve patents that mention “Intelligent Platform Management Interface”(IPMI) I might be able to find existing art.

  • doug

    good on Rackspace! Trolls/NPEs are complete slime.

    But why is Rackspace position not the norm? why aren’t more companies–much larger ones and ones with far more to lose than Rackspace–taking this stance after this many years of extortion? Or why aren’t other outfits joining Rackspace? The last time i saw a group of companies work together to deal with the Patent Troll problem, it was for the purpose of pooling funds to pay the Trolls off (buying the patents outright, rather than just paying license fees one at a time). This brilliant strategy perhaps bought a few months of peace at a staggering price, but then nust funded the trolls next warchest.

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