By: Alex Samaei

In February 2017, Blackbird Technologies sued Netflix claiming patent infringement over the company’s added download feature.  Blackbird owns an ambiguous patent #7,174,362 which was originally intended to protect the automation of custom-making CDs full of data, but is being applied to the download of streaming content because of the patent’s vague language. They are just one of thousands of “patent troll” firms which have been granted overbroad ownership without the intent of ever actually producing anything. Why? Money of course.

Patent trolls make money off suing and licensing to third-parties for infringing on patents granted to them through the USPTO. Blackbird is just another example of this strategy working, having already sued companies such as Vimeo, Starz, and SoundCloud.  Currently signs point towards this lawsuit remaining in litigation for some time, because as of May 1, 2017 there have not been any motions to dismiss filed by the defendants. Patent trolls are not to be taken lightly.

The number of these trolls has been rising and their effect on content developers of all sizes has effected creation of new technologies. Trolling has been used by some organizations to try and make a profit, while others actively campaign to limit the effectiveness. Interestingly, due to their “litigation prone” nature many patent trolls will often appear before the same judge. For example, Blackbird has litigated before the honorable Judge Richard G. Andrews on at least four separate occasions since 2015 and is doing so once again in their claims against Netflix. Whether this will have a long term effect on the outcome of these increasingly common cases is unknown. However, considering patent trolls have been around for quite some time, it is unlikely this will change anytime soon.

One hope is that by bringing trolling cases against large and innovative companies such as Netflix, there will be reform in patent litigation. Back in 2015 Google began helping startups by granting patents to help them grow and, eventually, overcome patent trolls. Now it is Netflix’s turn to decide if it’s more practical to give in or resist.

Student Bio: Alex Samaei is a 3L at Suffolk University Law School. He is currently a staff member of The Journal of High Technology. Alex holds a B.S. in Industrial & Systems Engineering from the University of Florida.

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