DCT
1:17-cv-00284
Blackbird Tech LLC v. Fastly Inc
Key Events
Complaint
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Blackbird Tech LLC d/b/a Blackbird Technologies (Delaware)
- Defendant: Fastly, Inc. (Delaware)
- Plaintiff’s Counsel: Stamoulis & Weinblatt LLC
- Case Identification: 1:17-cv-00284, D. Del., 03/16/2017
- Venue Allegations: Plaintiff alleges venue is 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.
- Technical Context: The technology concerns content delivery networks, which improve website performance by caching data geographically closer to end-users, and the methods by which these networks handle server errors.
- Key Procedural History: The complaint does not mention any prior litigation, inter partes review (IPR) proceedings, or specific licensing history related to the patent-in-suit.
Case Timeline
| Date | Event |
|---|---|
| 1998-07-21 | U.S. Patent No. 6,453,335 Priority Date |
| 2002-09-17 | U.S. Patent No. 6,453,335 Issued |
| 2017-03-16 | Complaint Filed |
II. Technology and Patent(s)-in-Suit Analysis
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 addresses the difficulty of incorporating third-party data into the conventional two-party (client-server) communication model of the internet. At the time of the invention, protocols like HTTP generally only permitted direct communication between a client and a server, making it problematic to introduce data from another source, such as for "value added services or enhanced security" (’335 Patent, col. 1:45-51).
- The Patented Solution: The invention proposes a "processing device" situated logically between the client and server that monitors their communications. When it detects a "predetermined property" (e.g., a specific error code like a "404 Not Found" error), it intercepts the communication, accesses a separate data source to get "third party data," and then modifies or replaces the original server response before sending it to the client ('335 Patent, Abstract; col. 5:26-34). This effectively creates a new data channel from a third-party source to the client, triggered by events in the primary client-server channel.
- Technical Importance: This approach allows for the dynamic insertion of context-aware content (e.g., help pages, advertisements, or alternative links) in response to network events without requiring modifications to the end-user's browser or the origin server's software ('335 Patent, col. 2:28-32).
Key Claims at a Glance
- The complaint asserts dependent claims 8 and 24 (Compl. ¶13). These claims depend on independent method claim 1 and independent apparatus claim 18, respectively.
- Independent Method Claim 1:
- Using a processing device distinct from an internet server to monitor an existing data channel between the server and a client.
- Monitoring for a data communication having a "predetermined property."
- Upon detection, accessing a "data source distinct from said internet server" to obtain third-party data.
- Executing a step of either modifying or replacing the data communication in response to the third-party data to create a "resultant data."
- Sending the resultant data to the intended recipient.
- Independent Apparatus Claim 18:
- A processing device distinct from an internet server for monitoring the data channel.
- The processing device is adapted, upon detection of a communication with a predetermined property, to:
- Access a data source distinct from the server to obtain third-party data.
- Execute a step of modifying or replacing the communication to obtain a resultant data.
- Send the resultant data to the intended recipient.
- The complaint reserves the right to assert other claims (Compl. ¶13).
III. The Accused Instrumentality
Product Identification
Defendant Fastly’s content delivery network (“CDN”) systems and services (Compl. ¶13).
Functionality and Market Context
The complaint alleges that Fastly’s CDN is a network of "points of presence" or "cache servers" located between end-users ("internet client") and its customers' websites ("origin servers") (Compl. ¶15). The CDN caches copies of content to serve them directly to users, reducing load on the origin server (Compl. ¶16). A key accused functionality is the CDN's ability to handle errors. When Fastly's servers detect an error code from an origin server, they can intercept the error and, instead of passing it to the user, serve a "custom error page" stored in Fastly's cache (Compl. ¶¶18, 20). The complaint references an exhibit illustrating how Fastly’s processing devices can access a cache to retrieve a customized error webpage. (Compl. ¶20, citing Exhibit E). This functionality is alleged to be beneficial to content providers by allowing for a more controlled user experience during server errors (Compl. ¶16). The complaint also references exhibits to describe the general architecture and location of Fastly's data centers relative to users and origin servers (Compl. ¶¶15, 17, citing Exhibits B-D).
IV. Analysis of Infringement Allegations
U.S. Patent No. 6,453,335 (Apparatus) 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... | Fastly's CDN is alleged to be an apparatus that provides a third-party data channel (Compl. ¶14). | ¶14 | col. 9:26-27 |
| 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," "cache servers") are alleged to be processing devices distinct from the origin servers that monitor communications for properties like HTTP error status codes (Compl. ¶¶15, 17-18). | ¶¶17-18 | col. 9:32-36 |
| said processing device being adapted, upon detection of said data communication, to access said data source to obtain third party data... | The complaint alleges that upon detecting an error code, the processing devices in Fastly's data centers are adapted to access their cache (the "data source") to retrieve a custom error page (the "third party data") (Compl. ¶¶19-20). | ¶¶19-20 | col. 9:38-39 |
| to execute a step selected from the group consisting of the step of modifying... and the step of replacing said data communication... | The functionality of providing a custom error page instead of the origin server's error is alleged to be a replacement of the original data communication (Compl. ¶¶19-20). | ¶19 | col. 9:40-45 |
| to send said resultant data communication to said intended recipient. | Fastly's data centers send the custom error page to the user system (the "intended recipient") (Compl. ¶20). | ¶19 | col. 9:46-47 |
Identified Points of Contention
- Scope Question: A central issue may be whether Fastly's cache, which stores custom error pages created for and on behalf of an origin server's owner, qualifies as a "data source distinct from said internet server" under the patent's claims. The defense may argue the cache is merely an extension of the origin server, whereas the patent specification describes scenarios involving truly separate entities like a "portal service provider" ('335 Patent, col. 2:25-32).
- Technical Question (Claim 8): The complaint specifically asserts dependent claim 8, which adds the limitation that data is transmitted on the third-party channel "when the data transmission rate of said server to said client is below a predetermined threshold" ('335 Patent, col. 9:8-11). The complaint alleges this is met because custom error pages are provided for errors "involving the data transmission rate" (Compl. ¶¶21-22). This raises the question of whether an error event is functionally equivalent to a measured low transmission rate, as required by the claim language.
- Technical Question (Claim 24): The complaint also asserts dependent claim 24, which contains the same "low transmission rate" limitation as claim 8 but for the apparatus claim. The same potential mismatch between an error event and a low data rate applies ('335 Patent, col. 10:23-26; Compl. ¶¶21-22). The complaint references an exhibit regarding error codes and transmission rates (Compl. ¶22, citing Exhibits E-F).
V. Key Claim Terms for Construction
"data source distinct from said internet server"
- Context and Importance: This term is critical because infringement hinges on whether Fastly's cache is considered "distinct" in the manner contemplated by the patent. If the cache is construed as being part of the "internet server" system, a core element of the claim would not be met.
- Intrinsic Evidence for a Broader Interpretation: The plain language of "distinct" could be argued to mean simply physically separate. The patent describes the processing device and data source as logically between the client and server, which could support an argument that any intermediate cache is "distinct" ('335 Patent, FIG. 1).
- Intrinsic Evidence for a Narrower Interpretation: The specification repeatedly frames the invention in the context of incorporating data from a "third party," such as a "portal service provider," to provide "value added services" independent of the origin server ('335 Patent, col. 1:48-51, col. 2:25-36). This could support a narrower construction requiring the data source to be controlled by a separate entity, not merely a cache acting on behalf of the origin server.
"predetermined property"
- Context and Importance: The scope of this term defines the trigger for the accused infringement. The complaint alleges that HTTP status codes are the "predetermined property" (Compl. ¶18).
- Intrinsic Evidence for a Broader Interpretation: The specification provides examples including an "application level protocol code" such as an HTTP status code, suggesting a broad reading that covers standard protocol events ('335 Patent, col. 3:36-42, col. 5:5-6).
- Intrinsic Evidence for a Narrower Interpretation: The specification also discloses more specific triggers, such as custom "HTML tag[s] like, e.g. <PSI (options)>" designed specifically to invoke the patented functionality ('335 Patent, col. 3:45-48). A defendant could argue the term should be limited to such purpose-built triggers rather than general-purpose error codes that existed prior to the invention.
VI. Other Allegations
Willful Infringement
The complaint does not contain specific allegations of pre- or post-suit knowledge to support a claim for willful infringement, though it does seek enhanced damages for an allegedly "exceptional case" under 35 U.S.C. § 285 (Compl. p. 7, ¶D).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of definitional scope: Can Fastly’s CDN cache, which delivers custom error pages on behalf of its customers (the "internet server" owners), be construed as a "data source distinct from said internet server" as required by the claims, or is it merely a component of the primary server's content delivery system? The patent’s focus on enabling "third party" services may be central to this determination.
- A key evidentiary question will be one of functional proof: Can the plaintiff provide evidence that the accused system transmits third-party data specifically "when the data transmission rate... is below a predetermined threshold," as required by asserted dependent claims 8 and 24? The complaint's current allegations appear to equate the occurrence of a server error with the condition of a low transmission rate, a connection that may face significant technical scrutiny.