Much has been written in recent years about a legal tactic known as patent trolling, which is the practice of acquiring patents for the sole purpose of pursuing litigation. The defendants in lawsuits filed by patent trolls usually settle quickly to avoid the costs of mounting a defense in court. Patent infringement lawsuits are often extremely complex and legal fees can run into the hundreds of thousands of dollars. However, the California-based software company Cloudflare took a different approach in 2017.
That was the year when Cloudflare was sued for intellectual property infringement by a Chicago-based technology firm that had obtained dozens of patents for products it had no intention of actually making. Rather than settle discretely, Cloudflare fought back by publically accusing the technology company of patent trolling on its company blog and in several media articles. Cloudflare also asked members of the public to search for prior art that could be used to invalidate the patent at the center of the dispute. The case was subsequently dismissed.
Cloudflare’s response to the lawsuit helped other firms that had been targeted by the technology company as most of the prior art it received from the public related to other patent litigation. Cloudflare also filed an ethics complaint against the attorneys who founded the technology company that accused them of violating accepted legal standards of conduct.
Attorneys familiar with intellectual property law may seek to have spurious legal claims dismissed before they enter the discovery phase or proceed to trial. Judges could dismiss patent infringement lawsuits if questions are raised about the enforceability or validity of the asserted patent or when the complaint may be jurisdictionally or procedurally defective. When prior art can be produced that invalidates the patent or the plaintiff may not be entitled to remedies, attorneys could file a motion for summary judgment.