Abolish The Patent, Vanquish The Troll

We’ve been vocal in our opposition of patent trolls and their attempts to extort settlements from businesses that actually create value. And we’ve done more than talk—in the past month, we fought a troll in court, and won, and we turned the tables on another, suing them in Federal Court.

It is sad, but true, that Rackspace is just one of many companies dealing with endless suits over dubious patents. It’s a never-ending game of whack-a-troll. What is different, though, is that we have decided to break the silence and shine a bright light on these patent-powered parasites.

Recently, we were sued by a Patent Assertion Entity (PAE) called Rotatable Technologies. Rotatable owns a patent that it claims covers the screen rotation technology standard in just about every smartphone. You know, when you flip your device sideways and the screen shifts orientation from portrait mode to landscape mode? Like nearly all the apps in the Apple and Android app stores, Rackspace uses standard functionality provided by Apple’s libraries and Android open source software to provide this display feature in one of our mobile cloud applications.

Rotatable provides a textbook case of patent extortion. One court identified how to spot patent extortion: a patent troll will file a series of “nearly identical patent infringement complaints against a plethora of diverse defendants.” (Eon-Net, 653 F.3d 1314.) Trolls do this to cast as wide a net as possible. They purposefully include companies that aren’t prepared to engage in patent litigation.

Rotatable didn’t just sue us; they’ve sued a number of companies including Apple, Netflix, Electronic Arts, Target and Whole Foods Market.

Patent trolls then follow each filing with a settlement demand “at a price far lower than the cost to defend the litigation.” (Id. at 1326.) This allows trolls to use the high cost of litigation as a club against operating companies. Patent litigation typically costs defendants between $1 million and $5 million just to stay in the fight.

When Rackspace contacted Rotatable to ask for a routine extension of time to answer their complaint, Rotatable admitted their trollish motives. Unprompted, they told us they had been instructed by their client to offer a settlement of $75,000 to anyone who contacts them asking for an extension of time. And that the number was negotiable.

As patent settlements go, that is very cheap. We also believe it is completely unacceptable.

Rackspace has decided to stick up for ourselves, the open source community, app developers and every other company in the mobile applications world. Today we filed a challenge to Rotatable’s patent in the patent office (see the petition here). It’s called an IPR, or Inter Partes Review. It’s a new proceeding made available under the America Invents Act. It gives us a chance to show why the patent is invalid and should not have been issued in the first place. Once we file the IPR, the patent holder can file a response. From there, a board of patent reviewers has a year to decide whether the patent in question is valid.

When it comes to fighting this particular troll, we believe an IPR is our best option to have this patent abolished at its source – eliminate the root, destroy the weed. We are optimistic that the patent office will agree with our petition and invalidate the patent, stopping Rotatable from attacking businesses in hopes of pilfering their hard-earned money and hindering app developers and the open source community from bringing their best every day.

IPRs can be risky and costly. We know this IPR will cost us more than the $75,000 that Rotatable wanted to extort from us. But we are not just fighting for us; we are fighting for all the app developers who are also in the line of fire. As the noted software engineer and blogger Joel Spolsky wrote, “Life is a bit hard sometimes, and sometimes you have to step up and fight fights that you never signed up for.”


  1. You should set up a patent defense fund that I can donate to. I would definitely donate some amount of money to you guys.

  2. Thankfully an organization that is battling the lunacy that is our current patent system. Patent litigation stifles inovation and provided monetary compensation to troll companies whose sole business model litigation extortion.

    • Even if it’s nothing but positive publicity… The fact that patent trolling leaves such a bad taste in peoples mouths, that is is positive publicity… Is pretty despicable.

  3. Bull. What you’re doing here is engaging in propaganda to try and market your business… you’re not taking a principled stand.

    The reality is, patents provide a positive benefit to society- rather than keeping inventions secret, patents make them public so that all companies can benefit, by starting with the patent and then innovating further (rather than having to reinvent the wheel.)

    What you and google and all the other patent bashers do is trump up a downside and ignore the upside.

    In google’s case, the reason they want patents abolished is because they ripped off a decade of original work done by Apple and want to get away with it.

    Apple is a company that creates value. By definition if they didn’t then there would have been nothing worth google stealing.

    You don’t see people ripping off rackspace inventions because you are not an innovative company.

    You want to see patents abolished because you want to be able to take others inventions without compensating them… and you lie when you call people who create these inventions “trolls” and claim that they don’t “create value”.

    If they weren’t creating value you wouldn’t be copying them, and thus there’d be no reason for them to sue you. If they are suing you for obvious things, then the suits will go nowhere.

    Of course, we have a culture of entitlement where people ideologically want to live on the work of others– and you are playing to this crowd here.

    Shame on you!

    • Engineer, you write “The reality is, patents provide a positive benefit to society…” and while I agree with the notion that patents can *potentially* provide a positive benefit to society, I think you should try to open your mind to the alternative notion that they can possibly also do great harm to society.

      If you can be convinced that there might be other perspectives than your own that also have some validity, then the first place I would suggest you look for convincing evidence is to Kirby Ferguson’s Everything Is A Remix 4-part indie movie series at http://www.everythingisaremix.info/watch-the-series/

      If you’re not convinced by Kirby that patents have the potential to do great harm to society, then the next place you should consider looking for evidence is http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack

      And if you’re still not convinced, then maybe read Ranganath Sudarshan, Nuisance-Value Patent Suits: An Economic Model and Proposal, 25 Santa Clara Computer & High Tech. L.J. 159 (2008). PDF available at http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1479&context=chtlj

      If you’re still not convinced, then it would seem that no amount of evidence can convince you that there are other possibilities than the one you describe where “patents [always] provide a positive benefit to society.”

    • This guy haha. Rackspace started openstack which is by far one of the greatest innovations to date. what’s apple has to with anything here.

      Shame on you!

    • The vast majority of patent use is to suppress competition: directly via the courts, or indirectly via threats.

      It is impossible to develop something non-trivial without infringing one or more patents. So patents inhibit innovation, rather than prompts it.

      Also most patents are written in a way that is practically impossible to be useful to learn useful new techniques. Look at the number of patents for obvious computer uses and programming techniques.

    • Guys, cool it. He’s not a real “Engineer”, as we’ve learned over his few posts. His arguments are always the same- straw men followed by slander (or libel, in this case). I’m not saying he’s an agent of any particular non-practicing entity. Far be it from me to conclude that he’s nothing but a sniveling sycophant beholden to parasitic vermin.

      Nobody has called for the abolition of patents. What we are calling for is an allied defense against your assault on life, liberty, and the pursuit of wealth generation. What you and your co-conspirators do is attempt to steal what someone else created. What’s particularly insidious about it is how you do so- by using the very tools designed to protect inventors, to go after themselves, their families, and their livlihoods.

      Not to put too fine a point on it, “Engineer”, but they say the world changes one funeral at a time. For the good of the rest of us, please… get on that sooner rather than later.

    • I’d give patents much more credibility if those that are enforcing it actually were the “engineers” that created the invention. That’s where it all goes down the toilet. The fact is that “engineers” don’t sue. Lawyers and trolls do. Sure, you invent something and you want some return on that invention. But having been a software developer for 35 years now, I’ve invented a hell of a lot of things but never ran off to the Patent office to lock it down? Why… Because I know this technology thing has a short shelf life and my contribution is just one grain of sand on the overall landscape. I’m proud of what I create, but I’m not willing to shut down progress on my self-centered narcissistic view. Patents might have their place in pharmaceuticals, biotech, etc. but in software – no way. Software SHOULD be obsolete in five years or less, otherwise we’ll never produce anything new, or anything secure. I mean does Microsoft issue one OS and sit on it for years? Nope. They do another every 12 months. Keeps them making money and ideally competitive (well we wish…). Software is designed by its nature to ‘expire’. God forbid the day that they issue 50 year copyrights on software like they do for movies or music or other forms of art.

      If patents are issued to tech products, they should have a max life of 5 years and that’s it. Move on, invent something new. Even 5 years is a stretch. Shit, I get a new smartphone every 2 years. You think that if there is incentive to invent something and sit on it for 5 years we would have a thriving tech industry? Nope, it will go the way of the dodo.

      Also let’s keep in mind this whole Patent thing is a US thing. The more the US does to stifle invention, the more likely we’ll lose our invention edge to the other 200+ member states of the UN that would love to have their own “Silicon Valley” and we’ll be paying them for their goods & services.

      Screw patents in software. We did perfectly well without them before and we can do perfectly well without them for the future.

  4. I (and many others) would like to chip in to help with the cost of some of this litigation, since it’s on behalf of everyone. would you accept assistance as an entity, or maybe through e.g. EFF? how can we help?

  5. Patent and copyright laws are both in serious need of radical reform in the US and globally. Thank you Rackspace for not caving in to the patent trolls, but as you wrote, it has become a never-ending game of “whack-a-troll”.

    That’s because with existing legislation, the patent troll business model is financially very sound if also inherently corrosive to society as a whole. “The dynamics of local vs. global optimization” is jargon from the team-building and process-design communities that applies here: a successful business strategy for the patent trolls is a huge failure for the community as a whole. This could also be considered a perverse incentive http://en.wikipedia.org/wiki/Perverse_incentive

    There are perverse incentives in both copyright and patent law that undermine the original Constitutional goals of “promot[ing] the Progress of Science and useful Arts…” that are especially powerful in our age of ever-increasing innovation where digital computers and The Internet have created a radically different “landscape” than that which existed when the first such laws were drafted.

    Ideally, thoughtful legislative reforms would prevent such perverse incentives in the future so that both copyright and patent law would once again be aligned to serve the common good rather than the good of a few.

    Large and democratic communities full of good questions and answers could go a long way towards helping to craft such thoughtful legislative reforms. See Ask Patents http://patents.stackexchange.com for such a community on patents, and http://goo.gl/5YDHa for such a proposed community on copyright.

    Anyone who feels strongly about these issues, please go get involved by “Follow”ing the proposed CopyrightX community and submitting 5 Example Questions. With enough voting and other participation, the CopyrightX community proposal can graduate to an actual community like Ask Patents.

    And with two vibrant communities full of good questions and answers related to IP law, perhaps future legislation will be free of perverse incentives, and we can once again rely on our laws to serve ALL of our best interests.

    In the interim, thanks again Rackspace for being willing to continue the costly game of “whack-a-troll” on behalf of all of us.

    • Thank you so much for your generous expressions of support. If you want to join the fight against patent trolls consider contributing to the Electronic Frontier Foundation. The EFF is fighting hard for our cause. Their website is https://www.eff.org/. Also, if you could write or call your two US Senators and your Congressman, that will actually help the cause.

  6. Makes me want to very much look for ways to become a customer of yours – such a strong feeling that I’ve never had with any advertisement I’ve ever seen!

    In practice, that is unlikely, but certainly Rackspace is now in my mind as a company I would love to support…

  7. Thank you Rackspace. Everyone else always folds to these extortionists. Thank you for having the guts to stand and fight!

  8. These patents would never affect me. But your actions just makes me proud of hosting my stuff with you. Thanks for being awesome!

  9. Dane-Geld

    It is always a temptation to an armed and agile nation
    To call upon a neighbour and to say: —
    “We invaded you last night–we are quite prepared to fight,
    Unless you pay us cash to go away.”

    And that is called asking for Dane-geld,
    And the people who ask it explain
    That you’ve only to pay ’em the Dane-geld
    And then you’ll get rid of the Dane!

    It is always a temptation for a rich and lazy nation,
    To puff and look important and to say: —
    “Though we know we should defeat you, we have not the time to meet you.
    We will therefore pay you cash to go away.”

    And that is called paying the Dane-geld;
    But we’ve proved it again and again,
    That if once you have paid him the Dane-geld
    You never get rid of the Dane.

    It is wrong to put temptation in the path of any nation,
    For fear they should succumb and go astray;
    So when you are requested to pay up or be molested,
    You will find it better policy to say: —

    “We never pay any-one Dane-geld,
    No matter how trifling the cost;
    For the end of that game is oppression and shame,
    And the nation that pays it is lost!”

    -Rudyard Kipling

  10. Hmmm, mixed feelings. I can see where patent trolls are poisoning the industry in order to make a quick buck.

    However, I will soon graduate with my PhD in computer science and I would like to work for one of the companies that likes to create and patent new technology.

    The key difference is that they want me to create new science. Where exactly is the distinction between say Qualcomm and a patent troll? Cisco? Even Apple holds many patents, are the trolls?

    Clearly patenting rotating screens is ridiculous. These people are just trying to make a fast buck. I think that their patent should not have been issued at all and will probably fall apart once you get them in court.

    But, if there were no patents then I would create the new science, and the companies would just use it without paying. We would have to keep the science secret so that others could not steal it. Patents clearly have their place in technology.

    • I sat in on a panel on Patent Trolls at CES 2015. One of the participants was a VP from Qualcomm who said similar things to your post. However it was clear to me that the reality was that BIG corps love patent trolls. Because they have the armies of lawyers to fight them, while the small guy inventor doesn’t. Hence it becomes a barrier to entry to the market the big corp wants to dominate for the next startup with a better product that could put them out of business. So don’t take too much about the big corps & patents at face value – consider that they love patent trolls because they squash their potential competition. “The enemy of my enemy is my friend”

  11. I am the founder of a tech company that has been harassed by these types of trolls for years now. Recently, we did the same as rackspace…we told the trolls we would see them in court. The extortion had to end. The troll spent well over $100K fighting us. We spent over 150K. Could have settled for $25K. They decided to go away and pick a fight elsewhere. The patent office should and our elected officials could solve this…stop issuing stupid patents on things that are clearly obvious and not truly unique, new, or novel in design. It’s no wonder most tech companies have moved their HQ off-shore. Here’s another fix. Stop allowing attorneys to take cases on contingency. Ever wonder why there are far less lawsuits in other developed nations? You can’t just sue someone on the hope of making money…you have to believe in the case by knowing you don’t have a huge payday coming just because of stupid laws and stupid patents.

  12. The completely idiotic and ridiculous “legal” system we have stopped being a place where justice could be had many years ago. What really needs to happen is these fools on the bench need to start throwing these ridiculous things out before they get expensive and corrosive. Of course our court system is a joke at this point.

  13. This is why I like Rackspace so much. It is one thing for a company to do right by the shareholders (which in this case would probably have been to settle for the cheaper amount) it is another, and a great thing, when a company will go the extra step to defend it’s users and that is what filing this IPR does. Yes, it will help to mitigate the actions against Rackspace but it will also help mitigate actions against everyone. These trolls need to be shone that they can’t get away with this for ever. I would actually like to see Rackspace team up with other big companies and lobby congress for a perm fix to patent trolling.

  14. “The key difference is that they want me to create new science. Where
    exactly is the distinction between say Qualcomm and a patent troll?
    Cisco? Even Apple holds many patents, are the trolls?”

    I’ve always been on the side of: Money should be made with your products, not your patents. Qualcomm sells chips, Cisco sells routers, Apple sells iThings. Whoever you plan on working for should sell something related to the patent.

    If they just plan on using the patent to sue everybody, rather than using the patent for innovative products, my advice is really to run away from that business.

    Using patents as a source of income is not a form of innovation. Creating innovative products is what drives innovation.


Please enter your comment!
Please enter your name here