Cloudflare Gets An Easy, Quick And Complete Win Over Patent Troll

from the good-news dept

Last year, we wrote about how a relatively new patent trolling operation had pretty clearly picked the wrong target in suing internet infrastructure provider Cloudflare with a sketchy patent (US Patent 6,453,335 on “providing an internet third party data channel.”) Cloudflare decided not only to fight the case, but to fight all of Blackbird’s patents, crowdsourcing and funding searches into prior art on any patent held by Blackbird Technologies, and arguing that the company was engaging in questionable legal practices — acting both as a patent holding company and a law firm, while sometimes pretending not to be a law firm (despite employing mostly lawyers) to avoid some serious ethics questions.

On Monday, Cloudflare received a fairly complete victory, with the judge easily dismissing the case and pointing out that the ‘335 patent was clearly invalid:

Abstract ideas are not patentable. The ‘335 patent is directed to the abstract idea of monitoring a data stream and modifying that data when a specific condition is identified…. The limitations in representative claims 1 and 18 “recite generic computer, network and Internet components, none of which is inventive by itself.” … Both claims describe a “processing device” that monitors a preexisting data stream between a server and a client for a specific condition and modifies that stream when that condition is present. But the patent makes clear the processing device can be generic hardware, such as a filter, router, or proxy, or generic software.

Dependent claims 8 and 24 identify a specific condition for the processing device to monitor: a data transmission rate below a set threshold. Identifying a specific condition narrows the scope of these claims. But this additional limitation is not inventive; it is simply a conventional application of the broader idea…. A patent that uses generic components can contain an inventive concept if those generic pieces are arranged in a “non-conventional and non-generic” way…. But the ‘335 patent does not attempt to patent a discrete and non-conventional means of monitoring and modifying a data stream. In fact, the claims make clear the processing device used to monitor and modify data can be nearly anything and can be placed nearly anywhere, so long as the processing device is not the server that originates the data stream. In other words, the patent attempts to monopolize the abstract idea of monitoring a preexisting data stream between a server and a client for a specific condition and modifying that stream when that condition is present.

Patent cases — even ones that should be easy — are pretty famous for forcing the defendant to go through a long and expensive process to conclude. Normally there are extensive back and forth and filings and hearings between the parties as the court determines just what the patents cover and what the defendants are alleged to have done. Here, however, Cloudflare made an early motion to dismiss based on the claim that the patent itself is clearly invalid under the Supreme Court’s Alice ruling that abstract ideas are not patentable. The court found this so persuasive that it tossed the case and the patent at this early stage (and did so in just two quick pages).

Blackbird may appeal, but it’s difficult to see any appeal getting very far either. And, given how Cloudflare is still asking for prior art on all of Blackbird’s other patents, the company may be interested in getting as far away as possible from Cloudflare as quickly as possible. But, then again, no one said that the people who run patent trolling operations are very smart.

Either way, kudos to Cloudflare for hitting back hard and getting an early victory against patent troll Blackbird.

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Companies: blackbird technologies, cloudflare

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Comments on “Cloudflare Gets An Easy, Quick And Complete Win Over Patent Troll”

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Anonymous Coward says:

Headline is "Easy, Quick And Complete", then it's downgraded in 2nd para to "fairly complete victory".

You can never keep from contradicting your own headline, it’s a characteristic flaw.

Anyhoo, here’s the WHOLE problem: “lawyers”, with no actual product or sales, just the empty shell of a claim.

I’ve said before that’s easy to show early in a case (and it’s been contradicted), yet I go on believing that if Plaintiff doesn’t have actual product and sales (after a due time), then cases should be tossed out.

So, Mr Patent Expert, would you agree that the above test is a good one? If not, why not?

And if not, what then is your professional advice for how to rid “the system” of trivial claims from the EMPTY SUITS OF LAWYERS? (Little double pun there, get it?)

Anonymous Coward says:

Re: Headline is "Easy, Quick And Complete", then it's downgraded in 2nd para to "fairly complete victory".

… No answer, eh? Anther characteristic of Masnickism. — How about the current court system? Which is set up precisely to deal with competing claims no matter how complex, and often does a good job of it? — Especially since the American system guarantees a jury of citizens.

Your 20 years complaining about "patent trolls" actually shows that THE SYSTEM IS IN PLACE AND WORKS.

Oh, you can still rant about "trolls" putting costs on the innocent, but actually, IF a Defendant is innocent and there’s little gray area, it’s rather simple to win in court.

Anonymous Coward says:

Re: Re: Re:3 Headline is "Easy, Quick And Complete", then it's downgraded in 2nd para to "fairly complete victory".

It’s not, but both fall under the umbrella of IP, and proponents of both are all too keen to muddy the boundaries when pushing their respective agendas, if it favors convenience.

out_of_the_blue also believes that regardless of copyright or patent, trolls should be permitted to run amok with no oversight or supervision, because to do otherwise would inconvenience the existing IP status quo.

Wendy Cockcroft (user link) says:

Re: Re: Re:4 Headline is "Easy, Quick And Complete", then it's downgraded in 2nd para to "fairly complete victory".

He also seems to have no problem with innocent parties being dragged into court on the most spurious of pretexts, i.e. invalid patents. Going to court is a rich man’s game. Most of us can’t afford to shell out for the kind of legal costs involved, particularly if the troll decides to appeal in the hope of running us out of funds till we can no longer afford to defend ourselves.

But in his world courts and lawyers are all paid for via taxes, right? How else could he consider it a simple matter?

Anonymous Coward says:

Re: Re: Re:5 Headline is "Easy, Quick And Complete", then it's downgraded in 2nd para to "fairly complete victory".

Never mind the fact that he’s suggested on several occasions that in his ideal world, all the lawyers would be killed off. It hasn’t seemed to cross his mind that there would be no one to enforce the IP law he so slavishly supports.

orbitalinsertion (profile) says:

Re: Re: Re:5 Headline is "Easy, Quick And Complete", then it's downgraded in 2nd para to "fairly complete victory".

This is a phenomenon which puzzles me at times, the trend to be pro-litigant in cases involving things like IP. So, in being “pro-IP”, no factor other than “who is the aggressor” comes into play in choosing who is right or what is best for an IP regime.

I swear i am sure it wouldn’t even matter if the defendant possessed a much older version of the same (stupid, usually) patent.

Thad (user link) says:

Re: Re: Re:6 Headline is "Easy, easy, easy meat! Easy, easy, easy meat! Easy, easy, easy, easy, easy meat, easy meat, easy meat, easy meat!"

It’s not so much that Blue is pro-litigant as that he’s anti-Techdirt. If Techdirt is for a thing, he’s against it; if Techdirt is against a thing, he’s for it. The facts don’t matter.

Prenda Law? Techdirt’s against it, therefore Blue is for it; it doesn’t matter how many people get sanctioned, jailed, or disbarred; all those judges and bar associations must be wrong, because they agree with Techdirt.

Shiva Ayyadurai? Techdirt says he didn’t invent E-Mail; therefore Blue believes he must have invented E-Mail, and any claims to the contrary are libelous.

If only Techdirt would publish an article under the headline "Drinking Bleach is Bad For You; Definitely Don’t Do That," things would get a lot quieter around here.

orbitalinsertion (profile) says:

Re: Re: Re:7 Headline is "Easy, easy, easy meat! Easy, easy, easy meat! Easy, easy, easy, easy, easy meat, easy meat, easy meat, easy meat!"

I am not specifically referring to “blue”. That one is rarely worth much consideration, but yes, there are those who seem to feel that anything Techdirt writes about, they should have an extreme opposite and illucid opinion. (Also, Techdirt is Leftist with a capital L, and promotes theft / infringement / whatever.)

Anonymous Coward says:

In software patents, the problem is not whether or not there’s product and sales. Of course, any lawyer worth a quarter of his salt could get around that “rule” in 14 minutes by the clock–or, if you prefer, 2 billable hours.

For instance, workaround #1–sell the patent to some rich sleazy software company. Microsoft and Oracle spring to mind, but they are not the only such companies. Then assert that the given patent is used by product XXX (Windows 10 or Oracle–either one has enough garbage in it that very few abstract ideas aren’t misunderstood in a dozen different places!) There’s your product, there’s your sales, and the sleazy legal firms are back in business.

The real problem is, as the Supreme court ruled and this court had to acknowledge, abstract ideas cannot be patented. Aside from “design patents” (which are more akin to trademarks), you’ve seen no discussion of software patents that aren’t simply “abstract ideas”. That’s because, as the computer scientists uniformly say, software is a kind of math–manipulation of abstract ideas. There aren’t any software patents that aren’t just “abstract ideas.”

There’s a very simple way of determining the difference between unpatentable software and patentable hardware. It’s like this.

Take two people, Putative_infringer#1 and Putative_infringer#2 (PI1 and PI2) in different cities. They both go to Amazon or Best Buy and purchase hardware which is acknowledged to be non-infringing.

Now PI1 obtains something which, in conjunction with the hardware, is allegedly-infringing. If that something can be sent over the internet and installed on PI2’s hardware (that is, encoded into bits), then it’s just data–numbers, software, pictures, whatever–and therefore simply an example of an abstract idea. And it cannot be infringing.

Of course, copyright might apply. But that’s a different (abstract) legal concept.

Put a different way–a patent is supposed to be a fully-adequate set of instructions for building a device. The patent may be copied by anyone–its purpose in life is to be copied by everyone interested; anyone is allowed to build the device, and experiment with it with no restrictions whatsoever.

But, for programmers, the best–the only useful–set of instructions is … the program itself. Under patent law, anyone is allowed to read and follow the instructions.

This test is infallible and nearly always simple to use.


PI1 reads a patent and copies (or derives) from it a program for using a software-controlled lathe to build a death ray.–legal.

PI1 builds the death ray and tries it out on a patent lawyer–should be legal but may not be for other reasons.

PI1 starts an assassination business with the ray, or mass-produces them to sell to distributors of recreational substances–patent-infringing.

PI1 modifies the instructions so that the machine-controlled lathe turns out banisters–legal.

PI1 goes into business making banisters–legal.

PI1 emails both sets of instructions to PI2–legal.

PI2 does anything he wants with the instructions–executing, modifying, experimenting with the lathed blanks–legal.

It is only when PI2 makes the death ray device, or modifies the effect to make a sleep-ray device, then begins to use those devices beyond the legally-permitted ways, that the patent is infringed.

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