DCT
3:17-cv-06115
Blackbird Tech LLC v. Fastly Inc
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Blackbird Technologies (Delaware)
- Defendant: Fastly Inc (Delaware)
- Plaintiff’s Counsel: Stamoulis & Weinblatt
- Case Identification: 1:17-cv-00284, D. Del., 05/19/2017
- Venue Allegations: Venue is alleged to be proper in the District of Delaware because Defendant is a Delaware corporation that transacts business and has allegedly committed acts of infringement in the district.
- Core Dispute: Plaintiff alleges that Defendant’s content delivery network (CDN) infringes a patent related to methods and systems for providing an internet third-party data channel by intercepting and modifying client-server communications.
- Technical Context: The technology at issue involves network-level interception of data traffic to dynamically insert or substitute content, a technique relevant to content delivery networks, portal services, and online advertising.
- Key Procedural History: The operative pleading is a First Amended Complaint, indicating the original complaint was modified post-filing. The complaint does not mention any other significant procedural events, such as prior litigation or administrative proceedings involving the patent-in-suit.
Case Timeline
| Date | Event |
|---|---|
| 1998-07-21 | ’335 Patent Priority Date |
| 2002-09-17 | ’335 Patent Issue Date |
| 2017-05-19 | First Amended Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
- Patent Identification: U.S. Patent No. 6,453,335, "Providing an Internet Third Party Data Channel," issued September 17, 2002.
The Invention Explained
- Problem Addressed: The patent identifies a problem in standard two-party internet communications (e.g., between a user's client browser and a web server) where it is difficult to incorporate data from a third party into the existing data stream (Compl. ¶10; ’335 Patent, col. 5:45-51). This limitation was said to be particularly acute for "portal services" that wished to provide users with additional help or guidance after the user had navigated away from the portal's own website (’335 Patent, col. 5:45-64).
- The Patented Solution: The invention proposes a system architecture featuring a "processing device" that is logically positioned between the internet client and server (’335 Patent, FIG. 1). This device monitors the data communication for a "predetermined property," such as an HTTP error status code (Compl. ¶11; ’335 Patent, col. 7:48-54). Upon detecting this property, the device accesses a separate "data source" to retrieve third-party data, uses that data to modify or replace the original server response, and sends the new "resultant data" to the client (’335 Patent, Abstract; col. 7:25-36). This effectively creates a new logical channel for third-party data within the original client-server connection.
- Technical Importance: This method enabled the dynamic insertion of context-aware information—such as custom error pages, help guides, or alternative links—into a user's browsing experience without requiring modification to the end-user's browser or the origin web server being accessed (’335 Patent, col. 5:52-64).
Key Claims at a Glance
- The complaint asserts infringement of at least claims 8 and 24 (Compl. ¶13). Claim 8 depends from independent method claim 1, and claim 24 depends from independent apparatus claim 18.
- Independent Apparatus Claim 18 requires:
- A "processing device" distinct from the internet server.
- The device monitors an existing data channel for a communication with a "predetermined property."
- Upon detection, the device is adapted to access a "data source distinct from said internet server" to get third-party data.
- The device is further adapted to execute a step of either modifying or replacing the original communication with the third-party data to create a "resultant data communication."
- The device then sends the resultant communication to the intended recipient.
- The complaint does not explicitly reserve the right to assert other dependent claims but uses the language "one or more claims... including at least claims 8 and 24" (Compl. ¶13).
III. The Accused Instrumentality
Product Identification
- Product Identification: Defendant Fastly’s content delivery network ("CDN") systems and services (Compl. ¶13).
Functionality and Market Context
- Functionality and Market Context: The complaint describes the accused CDN as a network of data centers, also called "points of presence" (POPs) or "cache servers," that are located between end-users (clients) and the content providers' "origin servers" (Compl. ¶15). The complaint alleges that when a user requests web content, the request is routed to a Fastly data center, which monitors communications from the origin server for predetermined properties like HTTP status codes that indicate an error (Compl. ¶¶ 16, 18). A diagram referenced in the complaint allegedly shows the Fastly CDN positioned between user systems and origin servers (Compl. ¶15, referencing Ex. B-D). Upon detecting such an error code, the Fastly data center can allegedly access its cache to retrieve a customized error webpage and deliver it to the user, instead of the original error message from the origin server (Compl. ¶¶ 19, 20). A screenshot referenced in the complaint allegedly shows documentation for providing custom error pages in response to error codes (Compl. ¶18, referencing Ex. E).
IV. Analysis of Infringement Allegations
’335 Patent Infringement Allegations
| Claim Element (from Independent Claim 18) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| An apparatus for providing an internet third party data channel... said third party data channel connecting a data source distinct from said internet server to said internet client... | Fastly’s CDN is alleged to be an apparatus that provides a third-party data channel by connecting its cache (a distinct data source) to the user (internet client) (Compl. ¶14). | ¶14 | col. 9:26-31 |
| a processing device distinct from said internet server for monitoring said existing data channel for a data communication having a predetermined property... | Fastly's data centers (POPs) are alleged to be processing devices, distinct from the origin servers, that monitor communications for predetermined properties such as HTTP status codes indicating an error (Compl. ¶¶17-18). | ¶¶17-18 | col. 9:32-37 |
| said processing device being adapted, upon detection of said data communication, to access said data source to obtain third party data... | Upon detecting an error code, the processing devices are alleged to be adapted to access the CDN cache (the "data source") to retrieve a custom error page (the "third party data") (Compl. ¶¶19-20). | ¶¶19-20 | col. 9:38-40 |
| to execute a step selected from the group consisting of the step of modifying said data communication in response to said third party data and the step of replacing said data communication in response to said third party data to obtain a resultant data... | The Fastly data centers are alleged to replace the original error code communication from the origin server with the custom error page to create the resultant data (Compl. ¶¶19-20). | ¶¶19-20 | col. 9:40-45 |
| and to send said resultant data communication to said intended recipient. | The Fastly data centers are alleged to send the resultant data (the custom error page) to the user system, which is the intended recipient (Compl. ¶20). | ¶20 | col. 9:45-47 |
- Identified Points of Contention:
- Scope Questions: A central question may be whether Fastly's CDN cache, which stores customer-configured error pages, qualifies as a "data source distinct from said internet server" under the patent's claims. Fastly may argue that its system acts as an agent for the "internet server" (its customer's origin server) and that the custom error page is first-party content, not the kind of "third party" data from a portal service described in the patent's background.
- Technical Questions: The complaint asserts infringement of claim 24, which requires that data be transmitted on the third-party channel "only when the data transmission rate of said server to said client is below a predetermined threshold." The complaint supports this by alleging that custom error pages can be provided for errors "involving the data transmission rate" (Compl. ¶22). This raises the question of what evidence demonstrates that an origin server error is technically equivalent to, or always co-occurs with, the data transmission rate falling below a specific threshold, as required by the claim.
V. Key Claim Terms for Construction
The Term: "data source distinct from said internet server" (Claim 18)
- Context and Importance: The infringement theory hinges on the Fastly CDN cache being a "distinct" data source. The definition of "distinct" is therefore critical. Practitioners may focus on this term because if the cache is construed as merely an extension of the "internet server" (i.e., the customer's origin server), then a core element of the claim may not be met.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification states that the third-party data "may or may not be related to the data sent by the server," and the new data channel can be extended "independently of the remote server" (’335 Patent, col. 5:19-22). This language could support a broad reading where "distinct" means any physically or logically separate data repository, such as a CDN cache.
- Evidence for a Narrower Interpretation: The patent's background and a key example focus on "portal service" providers inserting their own content into other sites' sessions (’335 Patent, col. 5:35-51). This context could support a narrower construction where "distinct" implies an entity or data source that is commercially and operationally separate from the primary client-server relationship, not just a different machine in the delivery path.
The Term: "predetermined threshold" (Claim 24)
- Context and Importance: This term is the key limitation added by asserted dependent claim 24. The viability of the infringement allegation for this claim depends entirely on whether Plaintiff can show that the accused CDN uses a "predetermined threshold" related to data transmission rate to trigger the substitution of content.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification suggests this feature is for efficiency, allowing third-party data to be sent "immediately while waiting for data from the remote server to arrive" when the server is slow or the connection load is low (’335 Patent, col. 6:62–col. 7:4). This could support a broad interpretation where any condition indicating a slow or failed connection (such as an error timeout) implicitly satisfies the "below a threshold" limitation.
- Evidence for a Narrower Interpretation: The claim language "below a predetermined threshold" suggests a specific, quantitative value (e.g., a data rate in kbps) is set in advance. An argument could be made that simply detecting an error state (like a 404 or 503 HTTP code) is a binary event detection, not a comparison against a "threshold" rate of data transmission.
VI. Other Allegations
- Indirect Infringement: The complaint does not provide sufficient detail for analysis of indirect infringement.
- Willful Infringement: The complaint does not contain allegations to support a claim for willful infringement.
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of definitional scope: can the term "data source distinct from said internet server," which is rooted in the patent's context of third-party portal services, be construed to cover a CDN's cache that stores and serves custom error pages on behalf of its own customer (the "internet server")?
- A key evidentiary question will be one of technical proof: for infringement of claim 24, what specific evidence will show that the accused CDN triggers the delivery of custom error pages based on the "data transmission rate" falling below a "predetermined threshold," as opposed to simply detecting a binary server error status code?