Cloudflare’s Prior Art Contest Pays Out Again, and a Troll Loses Ground at the Patent Office
Cloudflare’s ongoing battle with Sable Networks—a company it characterizes as a patent troll—has produced two notable developments. The second round of its Project Jengo 2 prior art contest has a winner, and the U.S. Patent and Trademark Office has agreed to review two of the four patents Sable is asserting in litigation.
Second Project Jengo 2 Winner Announced
Jean-Pierre Le Rouzic, a retired telecommunications R&D engineer living in Rennes, France, is the winner of the second round of the contest, taking home $10,000. Le Rouzic, who wrote twelve patents in the 2000s related to online authentication and identity management and was an early adopter of Java (using it as far back as 1996), learned about Project Jengo through Hacker News.
His winning submission targeted the asserted ’431 patent and included a 24-page document with a detailed claim chart. Specifically, he addressed weaknesses in the expansive scope Sable has claimed for the patent’s “micro-flow management” subject matter. All contest submissions, including Le Rouzic’s findings, are publicly available for anyone facing similar claims from Sable.
“I do not master enough English to express how happy I am, and how happy I am for Cloudflare if my work is useful. I find the idea of patent trolls hideous. The patent regulations should really be updated to enter the XXI century.”
Le Rouzic’s motivation for participating differed from most other contestants. His current interest is neurodegenerative diseases, particularly ALS, and he sees parallels between Sable’s tactics and practices in the pharmaceutical industry:
“The challenge faced by Cloudflare is close to my heart, because of its similarity to what is happening in the world of medical drugs. Cloudflare is facing an entity which is unreasonably stretching the meaning of their patent claims.”
He is also a Cloudflare user—both his blog and his daughter’s online shop rely on the company’s services.
Patent Office Institutes IPR on Two Patents
Cloudflare is seeking to invalidate the four patents Sable asserted against it through inter partes review (IPR), a trial proceeding before the Patent Office that lasts up to one year. An IPR is instituted only after a petition is reviewed by a panel of three administrative patent judges, who must find a reasonable likelihood that the petitioner can invalidate at least one claim.
In December, the Patent Office granted two of Cloudflare’s four IPR petitions. For the ’593 and ’932 patents, IPR proceedings were instituted on every single claim—76 claims in total. This preliminary determination signals that the Patent Office believes Cloudflare is likely to succeed in invalidating a substantial portion of those claims. A final decision is due within one year of institution. If the patents are invalidated, they cease to exist, effectively ending part of Sable’s lawsuit.
“Moreover, the undisputed evidence here shows that [Cloudflare] acted diligently, filing its Petition only seven weeks after service of the complaint and well before preliminary infringement contentions were served.” — Decision Granting Institution of Inter Partes Review at p. 12 (IPR2021-00909) (Nov. 19, 2021)
Sable Abandons Most Claims in Its Other Two Patents
The remaining two patents in the litigation—the ’919 and ’431 patents—tell a different story. Cloudflare filed IPR petitions challenging all 38 claims from those patents. In response, Sable voluntarily canceled 34 of the 38 claims. The Patent Office then declined to institute IPR on the four remaining claims. Sable is left with only four of the original 38 claims to pursue in litigation, and Cloudflare maintains those claims are far removed from its products and services.
Prior Art Findings on the ’431 Patent
Le Rouzic’s submission focused on the ’431 patent, titled “Micro-Flow Management,” which concerns Internet switching technology for network service providers. The patent claims priority back to April 19, 2000, and describes a router that attaches a label to packets in a given “microflow,” forwarding all packets in that flow based on the label.
Cloudflare’s earlier analysis argued that the ’431 patent’s claims were so broad they could potentially cover conventional routers from the 2000s that routed each packet independently. Le Rouzic found strong similarities between the ’431 patent and U.S. Patent No. 7,406,098, which was publicly available as early as 1999.
The ’098 patent relates to allocating communication resources of a single node among multiple subscribers. In Le Rouzic’s words, both patents address “the need to allocate switched packets resources to a single communication among many.” Claim 1 of the ’431 patent covers “a method for managing data traffic through a network,” while Claim 1 of the ’098 patent covers “a method of allocating a resource in a communication system.” Both involve classification-based allocation of Internet (switched packet) resources to a single communication among many.
The ’098 patent is significant because it demonstrates the obviousness of what Sable claims the ’431 patent covers. The Qualcomm inventors of the ’098 patent, well before the ’431 patent’s priority date, knew how to manage data flow using queues. Claim 1 of the ’431 patent deals with “delegating” microflows, while Claim 14 of the ’098 patent deals with “assigning” application flows—terminology that Le Rouzic mapped out in detail in his claim chart.
Cloudflare has received hundreds of prior art references across Sable’s ten patents and is encouraging additional submissions to the contest as the fight continues.
