Project Jengo Redux: Cloudflare’s Prior Art Search Bounty Returns

Here we go again.

On March 15, Cloudflare was sued by a patent troll called Sable Networks — a company that doesn’t appear to have operated a real business in nearly ten years — relying on patents that don’t come close to the nature of our business or the services we provide. This is the second time we’ve faced a patent troll lawsuit.

As readers of the blog (or followers of tech press such as ZDNet and TechCrunch) will remember, back in 2017 Cloudflare responded aggressively to our first encounter with a patent troll, Blackbird Technologies, making clear we wouldn’t simply go along and agree to a nuisance settlement as part of what we considered an unfair, unjust, and inefficient system that throttled innovation and threatened emerging companies. If you don’t want to read all of our previous blog posts on the issue, you can watch the scathing criticisms of patent trolling provided by John Oliver or the writers of Silicon Valley.

We committed to fighting back against patent trolls in a way that would turn the normal incentive structure on its head. In addition to defending the case aggressively in the courts, we also founded Project Jengo — Continue reading

Cloudflare’s Response to CSAM Online

Responding to incidents of child sexual abuse material (CSAM) online has been a priority at Cloudflare from the beginning. The stories of CSAM victims are tragic, and bring to light an appalling corner of the Internet. When it comes to CSAM, our position is simple: We don’t tolerate it. We abhor it. It’s a crime, and we do what we can to support the processes to identify and remove that content.

In 2010, within months of Cloudflare’s launch, we connected with the National Center for Missing and Exploited Children (NCMEC) and started a collaborative process to understand our role and how we could cooperate with them. Over the years, we have been in regular communication with a number of government and advocacy groups to determine what Cloudflare should and can do to respond to reports about CSAM that we receive through our abuse process, or how we can provide information supporting investigations of websites using Cloudflare’s services.

Recently, 36 tech companies, including Cloudflare, received this letter from a group of U.S Senators asking for more information about how we handle CSAM content. The Senators referred to influential New York Times stories published in late September and early November Continue reading

Winning the Blackbird Battle

Frequent readers of the Cloudflare blog are aware of the efforts we’ve undertaken in response to our first encounter with a patent troll. We’re happy to report that on Wednesday, the U.S. Court of Appeals for the Federal Circuit issued an opinion affirming a lower court decision dismissing the case brought by Blackbird Tech. This is the last step in the process ¹, we’ve won.

In addition to vigorously opposing this case in court, we created and sponsored Project Jengo to push back against the incentives that empower patent trolls like Blackbird Tech. Now that the case is over, we will be wrapping up Project Jengo and will report back with a summary of the Project’s successes in the near future.

But before we move on from the litigation, I want to share a few reflections on this case.

We noted from the very beginning: “The infringement claim is not a close one … if the ‘335 patent is read broadly enough to cover our system (which shouldn’t happen), it would also cover any system where electronic communications are examined and redacted or modified.”

Our initial observation, which we Continue reading

Bye Bye Blackbird

Courtesty of PublicDomainPictures.net

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)

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.

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