IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
BLACKBIRD TECH LLC d/b/a
BLACKBIRD TECHNOLOGIES,
Plaintiff,
v.
CLOUDFLARE, INC.,
Defendant.

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C.A. No. 17-283-VAC-CJB
DEMAND FOR JURY TRIAL

DEFENDANT CLOUDFLARE, INC.’S ANSWER TO COMPLAINT
Defendant Cloudflare, Inc. (“Cloudflare”) files this Answer to Plaintiff Blackbird Tech
LLC d/b/a Blackbird Technologies’ (“Blackbird”) Complaint for Patent Infringement (the “Complaint”) filed on March 16, 2017 (D.I. 1).1 All allegations contained in Blackbird’s Complaint not
expressly admitted or not specifically responded to by Cloudflare are denied.
THE PARTIES
1.

Cloudflare is without knowledge or information sufficient to form a belief as to the

truth of the allegations contained in Paragraph 1 and, therefore, denies the allegations.
2.

Responding to Paragraph 2, Cloudflare admits that it is a Delaware corporation and

that it may be served via its registered agent. Cloudflare denies that its registered agent is The
Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801.

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This Answer is subject to, and without waiver of, Cloudflare’s previously filed Motion to
Dismiss, which seeks dismissal of Blackbird’s enhanced-damages claim.

 JURISDICTION AND VENUE
3.

Responding to Paragraph 3, Cloudflare admits that this lawsuit purports to assert

an action for patent infringement arising under the provisions of the Patent Laws of the United
States of America, Title 35, United States Code § 100 et seq.
4.

Responding to Paragraph 4, Cloudflare admits that federal courts, such as this

Court, have subject-matter jurisdiction over patent-infringement claims.
5.

Responding to Paragraph 5, Cloudflare admits that this Court has personal jurisdic-

tion over Cloudflare. Cloudflare denies that acts by Cloudflare in this District have caused injury
to Blackbird, as alleged in Paragraph 5.
6.

Responding to Paragraph 6, Cloudflare admits that it has always been incorporated

in Delaware.
7.

Responding to Paragraph 7, Cloudflare admits that its website is accessible

throughout the United States, including in Delaware. Cloudflare does not dispute that it has multiple customers that are organized under Delaware law. Cloudflare admits that Delaware citizens
may communicate with Cloudflare servers. Otherwise, Cloudflare denies the allegations contained
in Paragraph 7.
8.

Responding to Paragraph 8, Cloudflare admits that venue exists in this Court, but

Cloudflare contends that venue is more convenient in the United States District Court for the
Northern District of California. Cloudflare denies that it has committed acts in this District—or
anywhere else—that infringe U.S. Patent No. 6,453,335 (the “’335 patent”), as alleged in Paragraph 8.
U.S. PATENT NO. 6,453,335
9.

Responding to Paragraph 9, Cloudflare admits that the ’335 patent is titled, on its

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 face, “PROVIDING AN INTERNET THIRD PARTY DATA CHANNEL.” Cloudflare admits
that, on its face, the ’335 patent states that it issued on September 17, 2002. Cloudflare further
admits that Blackbird has attached what appears to be a true and correct copy of the ’335 patent as
Exhibit A to its Complaint. Cloudflare is without knowledge or information sufficient to form a
belief as to whether Blackbird is the owner by assignment of all right, title, and interest in and to
the ’335 patent, including all right to recover for any and all infringement thereof, and therefore
denies such allegation. Cloudflare denies all other allegations contained in Paragraph 9.
10.

Responding to Paragraph 10, Cloudflare denies that the ’335 patent represents an

improvement to the technologies that make the internet work. Cloudflare is without knowledge or
information sufficient to form a belief as to what Blackbird contends was “the time of the invention” and therefore denies all other allegations contained in Paragraph 10.
11.

Cloudflare denies the allegations contained in Paragraph 11.
COUNT I – ALLEGED INFRINGEMENT OF THE ’335 PATENT

12.

Cloudflare incorporates the foregoing paragraphs by reference as if fully set forth

13.

Cloudflare denies the allegations contained in Paragraph 13.

14.

Cloudflare denies the allegations contained in Paragraph 14.

15.

Responding to Paragraph 15, Cloudflare admits that it maintains multiple servers

herein.

in the United States. Cloudflare admits that it sometimes refers to certain servers or groups of
servers as “points of presence,” “POPs,” and “edge servers.” Cloudflare admits that it caches certain content originally stored on customer servers, and that cached content may be delivered to
users. Cloudflare admits that it sometimes refers to certain customer servers as “origin servers.”
Cloudflare otherwise denies the allegations contained in Paragraph 15.

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 16.

Responding to Paragraph 16, Cloudflare admits that certain user requests are trans-

mitted to Cloudflare’s servers. Cloudflare admits that it caches certain content originally stored on
customer servers, and that cached content may be delivered to users. Cloudflare admits that its
services can reduce the workload of certain origin servers. Cloudflare otherwise denies the allegations contained in Paragraph 16.
17.

Cloudflare denies the allegations contained in Paragraph 17.

18.

Cloudflare denies the allegations contained in Paragraph 18.

19.

Cloudflare denies the allegations contained in Paragraph 19.

20.

Responding to Paragraph 20, Cloudflare admits that it provides error-page custom-

ization as a service to certain customers. Cloudflare admits that it sometimes refers to customized
error webpages as “branded” error webpages. Cloudflare otherwise denies the allegations contained in Paragraph 20.
21.

Cloudflare denies the allegations contained in Paragraph 21.

22.

Responding to Paragraph 22, Cloudflare admits that it provides error-page custom-

ization as a service to certain customers. Cloudflare otherwise denies the allegations contained in
Paragraph 22.
23.

Cloudflare denies the allegations contained in Paragraph 23.

24.

Cloudflare denies the allegations contained in Paragraph 24.

25.

Cloudflare denies the allegations contained in Paragraph 25.

26.

Cloudflare denies the allegations contained in Paragraph 26.
BLACKBIRD’S PRAYER FOR RELIEF

27.

Subject to and without waiver of Cloudflare’s previously filed Motion to Dismiss,

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 Cloudflare denies that Blackbird is entitled to any relief, and specifically denies all of the allegations and prayers for relief contained in Paragraphs A-F of Blackbird’s Prayer for Relief.
BLACKBIRD’S JURY DEMAND
28.

Cloudflare admits that Blackbird has purported to demand a trial by jury on all

claims and issues so triable.
DEFENSES
29.

Without altering the burden of proof, Cloudflare asserts the following defenses,

which are based upon an investigation that is not complete and prior to the opening of fact discovery. Cloudflare’s investigation of its defenses is continuing, and Cloudflare reserves the right to
assert all defenses under Federal Rule of Civil Procedure 8, the patent laws of the United States,
and any other defense, at law or in equity, that may now exist or in the future be available based
upon, among other things, discovery and further investigation in this case.
FIRST DEFENSE
(FAILURE TO STATE A CLAIM)
30.

Blackbird’s Complaint fails to state a claim upon which relief can be granted.
SECOND DEFENSE
(NON-INFRINGEMENT)

31.

Cloudflare has not directly or indirectly, literally or under the doctrine of equiva-

lents, infringed, contributed to the infringement of, or induced the infringement of any valid and
enforceable claim of the ’335 patent, and is not liable for infringement thereof.
THIRD DEFENSE
(INVALIDITY)
32.

The claims of the ’335 patent are invalid and/or void for failure to meet the condi-

tions for patentability specified by 35 U.S.C. §§ 101 et seq., including but not limited to 35 U.S.C.

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 §§ 101, 102, 103, 112, 282 and/or the Rules and Regulations of the United States Patent & Trademark Office.
FOURTH DEFENSE
(ESTOPPEL, UNCLEAN HANDS, OR WAIVER)
33.

Blackbird’s claims are barred in whole or in part by the doctrines of estoppel, un-

clean hands, and/or waiver.
FIFTH DEFENSE
(LIMITATION ON DAMAGES)
34.

Blackbird’s claims for relief are limited by 35 U.S.C. §§ 286-287 and/or 28 U.S.C.

§ 1498.
SIXTH DEFENSE
(PROSECUTION HISTORY ESTOPPEL)
35.

By reason of proceedings in the United States Patent & Trademark Office, and by

reasons of amendments, statements, admissions, omissions and/or representations made by the
applicant or on his behalf, Blackbird is estopped from asserting infringement of the ’335 patent
against Cloudflare.
SEVENTH DEFENSE
(DISCLOSURE-DEDICATION)
36.

Blackbird’s claims are barred to the extent that it has dedicated to the public sys-

tems, methods, and/or products disclosed in the ’335 patent but not literally claimed therein.
CLOUDFLARE’S PRAYER FOR RELIEF
37.

Cloudflare requests that the Court enter a judgment in Cloudflare’s favor as fol-

lows:
A.

Dismissing Blackbird’s Complaint in its entirety, with prejudice;

B.

Finding that Blackbird is not entitled to any relief, whether in law or equity
or otherwise, from its suit against Cloudflare;
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 C.

Finding that Cloudflare does not infringe and has not infringed the ’335
patent;

D.

Finding that the claims of the ’335 patent are invalid;

E.

Permanently enjoining Blackbird, its successors and assigns, and anyone
acting in concert therewith or on its behalf, from attempting to enforce the
’335 patent against Cloudflare or any parents, affiliates, or subsidiaries of
Cloudflare or any of their respective officers, agents, employees, successors, and assigns;

F.

Finding that this is an exceptional case in Cloudflare’s favor pursuant to 35
U.S.C. § 285;

G.

Awarding to Cloudflare its costs, expenses, and reasonable attorney’s fees,
whether pursuant to 35 U.S.C. § 285 or otherwise; and

H.

Entering an Order that Cloudflare shall have and recover from Blackbird
any and all such other and further relief, general and special, at law or in
equity, to which Cloudflare may be justly entitled.

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 CLOUDFLARE’S REQUEST FOR STATEMENT OF DAMAGES
38.

Pursuant to D. Del. LR 9.4(b), Cloudflare requests that Blackbird, within 14 days,

furnish Cloudflare with a written statement of the amount of damages claimed. Unless required by
Court order, such statement shall not be filed with the Court.

/s/ Jeffrey T. Castellano
Jeffrey T. Castellano (No. 4837)
SHAW KELLER LLP
I.M. Pei Building
1105 North Market Street, 12th Floor
Wilmington, DE 19801
(302) 298-0700
jcastellano@shawkeller.com
Attorneys for Defendant
OF COUNSEL:
Steven Callahan
Anthony M. Garza
CHARHON CALLAHAN ROBSON
& GARZA, PLLC
3333 Lee Parkway, Suite 460
Dallas, TX 75219
(469) 587-7242
Dated: May 11, 2017

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