Doug Kramer

Author Archives: Doug Kramer

Bye Bye Blackbird

Bye Bye Blackbird

Bye Bye Blackbird
Courtesty of

As we have talked about repeatedly in this blog, we at Cloudflare are not fans of the behavior of patent trolls. They prey upon innovative companies using overly-broad patents in an attempt to bleed settlements out of their targets. When we were first sued by a patent troll called Blackbird Technologies last spring, we decided that we weren’t going along with their game by agreeing to a modest settlement in lieu of going through the considerable effort and expense of litigation. We decided to fight.

We’re happy to report that earlier today, the United States District Court for the Northern District of California dismissed the case that Blackbird brought against Cloudflare. In a two-page order (copied below) Judge Vince Chhabria noted that “[a]bstract ideas are not patentable” and then held that Blackbird’s attempted assertion of the patent “attempts to monopolize the abstract idea of monitoring a preexisting data stream between a server” and is invalid as a matter of law. That means that Blackbird loses no matter what the facts of the case would have been.

The court’s ruling comes in response to a preliminary motion filed by Cloudflare under Section 101 of the U. Continue reading

Ninth Circuit Rules on National Security Letter Gag Orders

As we’ve previously discussed on this blog, Cloudflare has been challenging for years the constitutionality of the FBI’s use of national security letters (NSLs) to demand user data on a confidential basis. On Monday morning, a three-judge panel of the U.S. Ninth Circuit Court of Appeals released the latest decision in our lawsuit, and endorsed the use of gag orders that severely restrict a company's disclosures related to NSLs.

CC-BY 2.0 image by a200/a77Wells

This is the latest chapter in a court proceeding that dates back to 2013, when Cloudflare initiated a challenge to the previous form of the NSL statute with the help of our friends at EFF. Our efforts regarding NSLs have already seen considerable success. After a federal district court agreed with some of our arguments, Congress passed a new law that addressed transparency, the USA FREEDOM Act. Under the new law, companies were finally permitted to disclose the number of NSLs they receive in aggregate bands of 250. But there were still other concerns about judicial review or limitation of gag orders that remained.

Today’s outcome is disappointing for Cloudflare. NSLs are “administrative subpoenas” that fall short of a warrant, and are frequently accompanied Continue reading

Project Jengo: Explaining Challenges to Patent Validity (and a looming threat)

Project Jengo: Explaining Challenges to Patent Validity (and a looming threat)

We’ve written a couple times about the problem of patent trolls, and what we are doing in response to the first case a troll filed against Cloudflare. We set a goal to find prior art on all 38 Blackbird Tech patents and applications and then obtain a legal determination that Blackbird Tech’s patents are invalid. Such a determination will end Blackbird’s ability to file or threaten to file abusive patent claims, against us or anyone else.

Project Jengo: Explaining Challenges to Patent Validity (and a looming threat)CC BY-SA 2.0 image by hyku

The patent system exists to reward inventors, so it is no surprise that a patent has to claim something new — an “invention.” Sometimes the United States Patent and Trademark Office (USPTO) — the agency that administers the patent system — mistakenly issues patents that do not claim anything particularly new. The patent examiner may not be aware that the proposed “invention” was already in use in the industry, and the patent applicant (the only party in the process) doesn’t have an incentive to share that information. Often, the USPTO issues patents that are too vague and can later be broadly interpreted by patent owners to cover different and subsequent technologies that could not otherwise Continue reading