Open source fights back: 'We won't get patent-trolled again'

SALT LAKE CITY - If your business recently posted a job ad on LinkedIn, you may have received -- in addition to the usual influx of resumes and cover letters -- a very unexpected response: the threat of a lawsuit from Edge Networking Systems LLC.

Edge Networking is a patent troll. This means it buys up patents -- not to use them but to extort money from anyone who might want to use the patent.  Let's say you've posted a job listing for a Kubernetes engineer. An Edge bot will spot this, assume you must be using Kubernetes, and then slap you with a cease-and-desist note claiming you're violating its Kubernetes patent and you must pay them a licensing fee. Welcome to the wild, wonderful world of 21st-century patent trolls!

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What's the logic behind this? 

According to the Electronic Frontier Foundation, a "patent troll uses patents as legal weapons, instead of actually creating any new products or coming up with new ideas." They collect their patents for pennies on the dollar from companies down on their luck. Since the US Patent and Trademark Office (USPTO) grants very broad patents for ideas that are neither new nor revolutionary, it's easy for a patent troll, which typically has no other business, to send out threatening letters to anyone who might conceivably infringe their patents. These letters usually threaten a lawsuit unless the alleged infringer agrees to pay a licensing fee. These charges can range from tens to hundreds of thousands of dollars.

Because it's far more expensive to fight a lawsuit than to pay off the troll, patent trolling is a very successful business model. Over half of all patent lawsuits are initiated by trolls. In particular, businesses that use open-source projects, such as Kubernetes, are being targeted more often.

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The Cloud Native Computing Foundation (CNCF), the Linux Foundation, and United Patents have had enough of this latest attack. At KubeCon North America 2024 this week, CNCF executive director Priyanka Sharma said in her keynote, "Patent trolls are not contributors or even adopters in our ecosystem. Instead, they prey on cloud-native adopters by abusing the legal system. We are here to tell the world that these patent trolls don't stand a chance because CNCF is uniting the ecosystem to deter them. Like a herd of musk oxen, we will run them off our pasture."

CNCF CTO Chris Aniszczyk added: "The reason trolls can make money is that many companies find it too expensive to fight back, so they pay trolls a settlement fee to avoid the even higher cost of litigation. Now, when a whole herd of companies band together like musk oxen to drive a troll off, it changes the cost structure of fighting back. It disrupts their economic model."

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How? 

Jim Zemlin, the Linux Foundation's executive director, said, "We don't negotiate with trolls. Instead, with United Patents, we go to the PTO and crush those patents. We strive to invalidate them by working with developers who have prior art, bringing this to the attention of the USPTO, and killing patents. No negotiation, no settlement. We destroy the very asset that made patent trolls' business work. Together, since we've started this effort, 90% of the time, we've been able to go in there and destroy these patents."

"It's time for us to band together," said Joanna Lee, CNCF's VP of strategic programs and legal. "We encourage all organizations in our ecosystem to get involved. Join the fight, enhance your own company's protection, protect your customers, enhance our community defense, and save money on legal expenses." 

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While getting your company and its legal department involved in the effort to fend off patent trolls is important, developers can also help. CNCF announced the Cloud Native Heroes Challenge, a patent troll bounty program in which cloud-native developers and technologists can earn swag and win prizes.

They're asking you to find evidence of preexisting technology -- referred to by patent lawyers as "prior art" -- that can kill off bad patents. This could be open-source documentation (including release notes), published standards or specifications, product manuals, articles, blogs, books, or any publicly available information.

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All entrants who submit an entry that conforms to the contest rules will receive a free "Cloud Native Hero" t-shirt that can be picked up at any future KubeCon+CloudNativeCon. The winner will also receive a $3,000 cash prize.

In the inaugural contest, the CNCF is seeking information that can be used to invalidate Claim 1 from US Patent US-11695823-B1. This is the major patent asserted by Edge Networking Systems against Kubernetes users. As is often the case with such patents, it's much too broad. This patent describes a network architecture that facilitates secure and flexible programmability between a user device and across a network with full lifecycle management of services and infrastructure applications. That describes pretty much any modern cloud system. 

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If you can find prior art that describes such a system before June 13, 2013, you could be a winner. Some such materials have already been found. This is already listed in the "known references" tab of the contest information page and doesn't qualify. 

If you care about keeping open-source software easy and cheap to use -- or you believe trolls shouldn't be allowed to take advantage of companies that make or use programs -- you can help. I'll be doing some digging myself.