DCT

8:17-cv-01172

Blue Spike LLC v. Vizio Inc

Key Events

Complaint

I. Executive Summary and Procedural Information

Parties & Counsel:
- Plaintiff: Blue Spike, LLC (Texas)
- Defendant: Vizio, Inc. (California)
- Plaintiff’s Counsel: Garteiser Honea, P.C.
Case Identification: 8:17-cv-01172, C.D. Cal., 07/10/2017
Venue Allegations: Plaintiff alleges venue is proper because Defendant is incorporated in California, has its headquarters within the Central District of California, and has a regular and established place of business in the district.
Core Dispute: Plaintiff alleges that Defendant’s tablets and smart televisions infringe seven patents related to software security through memory randomization, secure content servers, and systems for conducting trusted digital transactions.
Technical Context: The technologies at issue relate to digital rights management (DRM) and operating system security, which are foundational for protecting copyrighted content and defending against software exploits in consumer electronics.
Key Procedural History: The complaint alleges that Defendant had knowledge of all asserted patents at least as of January 30, 2017, due to the filing of a prior infringement lawsuit by Plaintiff against Defendant in the Eastern District of Texas. For one patent, the complaint also alleges knowledge based on prior widely publicized litigation against other major smartphone manufacturers. These allegations form the basis for claims of willful infringement.

Case Timeline

Date	Event
1996-01-17	Priority Date for U.S. Patent Nos. 5,745,569 and 8,930,719
1998-04-28	U.S. Patent No. 5,745,569 Issued
1999-08-04	Priority Date for U.S. Patent Nos. 7,475,246, 8,171,561, and 8,739,295
1999-12-07	Priority Date for U.S. Patent Nos. 7,159,116 and 8,538,011
2007-01-02	U.S. Patent No. 7,159,116 Issued
2009-01-06	U.S. Patent No. 7,475,246 Issued
2011-10-19	Android 4.0 Operating System Launched (Accused ASLR Instrumentality)
2012-05-01	U.S. Patent No. 8,171,561 Issued
2013-09-17	U.S. Patent No. 8,538,011 Issued
2014-05-27	U.S. Patent No. 8,739,295 Issued
2015-01-06	U.S. Patent No. 8,930,719 Issued
2017-01-30	Prior Blue Spike infringement complaint filed against Vizio in E.D. Tex.
2017-07-10	Complaint Filed

II. Technology and Patent(s)-in-Suit Analysis

U.S. Patent No. 5,745,569 - "Method for Stega-Cipher Protection of Computer Code"

Issued: April 28, 1998

The Invention Explained

Problem Addressed: The patent describes the need for robust protection of software from unauthorized copying and tampering, noting that existing methods were often easily bypassed by skilled pirates and that object code was vulnerable to analysis and "patching" ( ’569 Patent, col. 1:13-25, 2:21-26).
The Patented Solution: The invention proposes two primary solutions. First, it describes hiding essential executable "code resources" of a program within data resources (e.g., image or audio files) using a digital watermark, requiring a license key for access and execution (’569 Patent, col. 2:2-6, Abstract). Second, it discloses a "memory scheduler" that "intentionally shuffles the other code resources randomly in memory" at periodic or random intervals during execution to make memory-capture analysis and patching extremely difficult (’569 Patent, col. 8:1-12).
Technical Importance: The approach of tying software functionality directly to its copy protection and actively obfuscating its in-memory structure represented an attempt to create a higher barrier to reverse engineering than traditional software protection schemes.

Key Claims at a Glance

The complaint asserts independent claim 16 (Compl. ¶28).
Essential elements of Claim 16:
- A method for copy protecting a software application executed by a computer system, the software application including a plurality of executable code resources loaded in a memory of the computer system, said method comprising the steps of:
- determining an address within the memory of the computer system associated with each of the plurality of executable code resources; and
- intermittently relocating each of the plurality of executable code resources to a different address within the memory of the computer during execution of the software application.
The complaint does not explicitly reserve the right to assert dependent claims for this patent.

U.S. Patent No. 8,930,719 - "Data Protection Method and Device"

Issued: January 6, 2015

The Invention Explained

Problem Addressed: The complaint describes the vulnerability of modern operating systems that load software into predictable memory locations, which allows attackers to pinpoint and manipulate software in unintended ways (Compl. ¶17).
The Patented Solution: The asserted claim describes a computing device where the application software includes a "memory scheduler code resource" that is called to "shuffle" other code resources in memory and to "modify a stack frame" (Compl. ¶37). This is a specific architecture for implementing what is commonly known as Address Space Layout Randomization (ASLR), a technique that protects software by randomizing its location in memory (Compl. ¶17).
Technical Importance: ASLR is a foundational, widely adopted security technique in modern operating systems designed to mitigate exploits that rely on predictable memory addresses, such as buffer overflow attacks.

Key Claims at a Glance

The complaint asserts independent claim 1 (Compl. ¶37).
Essential elements of Claim 1:
- A computing device for running application software, comprising: an operating system; wherein said memory stores an application software;
- wherein said application software comprises (1) a memory scheduler code resource and (2) other code resources;
- wherein said application software is designed to call said memory scheduler code resource;
- wherein said memory scheduler code resource, when called, functions to shuffle said other code resources in said memory; and
- wherein said memory scheduler code resource is designed to modify a stack frame in said memory.
The complaint does not explicitly reserve the right to assert dependent claims for this patent.

Multi-Patent Capsule: Secure Server Patents

U.S. Patent No. 7,475,246 - "Secure Personal Content Server"

Issued: January 6, 2009
Technology Synopsis: This patent describes a method for managing digital content in a secure environment centered around a “Local Content Server” (LCS). The method involves receiving a user request, embedding both a robust authentication watermark and a second user-specific watermark into the content, and transmitting it to the LCS, which then extracts a watermark to authorize use.
Asserted Claims: Independent claim 17 is asserted (Compl. ¶46).
Accused Features: The accused features are Vizio’s smart televisions (“Accused TV Products”) that allow playback of secured content from streaming services like Netflix, which allegedly function as the claimed LCS (Compl. ¶46).

U.S. Patent No. 8,171,561 - "Secure Personal Content Server"

Issued: May 1, 2012
Technology Synopsis: This patent describes a method performed by an LCS for handling digital content. The LCS inspects incoming data for a watermark to determine its status (e.g., unsecure, secure, legacy), applies a set of rules based on that status, and determines a quality level for transmission based on user rights.
Asserted Claims: Independent claim 9 is asserted (Compl. ¶55).
Accused Features: The accused features are Vizio’s smart televisions that play back both secured and unsecured content from streaming services, allegedly performing the claimed LCS method of inspecting content for watermarks and determining its status (Compl. ¶55).

U.S. Patent No. 8,739,295 - "Secure Personal Content Server"

Issued: May 27, 2014
Technology Synopsis: This patent describes a method performed by an LCS that defines a “first LCS domain.” The system determines if incoming content belongs to a different LCS domain and, if so, excludes it from the first domain, thereby controlling content transfer between devices or ecosystems.
Asserted Claims: Independent claim 13 is asserted (Compl. ¶64).
Accused Features: The accused features are Vizio’s smart televisions that play back content from streaming services, allegedly implementing the claimed method of defining and enforcing an LCS domain (Compl. ¶64).

Multi-Patent Capsule: Trusted Transactions Patents

U.S. Patent No. 7,159,116 - "Systems, Methods and Devices for Trusted Transactions"

Issued: January 2, 2007
Technology Synopsis: The patent claims a device for conducting a trusted transaction using means-plus-function elements. The device includes a “means for uniquely identifying information” (such as a party or transaction ID) and a “steganographic cipher” governed by a predetermined key to generate that information.
Asserted Claims: Independent claim 14 is asserted (Compl. ¶73).
Accused Features: The accused feature is the use of the PlayReady digital rights management (DRM) system on Vizio smart TVs, which the complaint alleges authenticates information using unique device IDs and cryptographic keys, thereby practicing the claimed invention (Compl. ¶73).

U.S. Patent No. 8,538,011 - "Systems, Methods and Devices for Trusted Transactions"

Issued: September 17, 2013
Technology Synopsis: The patent claims a device for trusted transactions that includes a “steganographic cipher” and a “steganographically ciphered software application.” The device is configured to receive output data, cipher it using a key, and transmit it, using a stored device identification code in the process.
Asserted Claims: Independent claim 36 is asserted (Compl. ¶82).
Accused Features: The accused feature is the use of the PlayReady DRM system on Vizio smart TVs, which allegedly uses unique device IDs and cryptographic keys to authenticate and transmit secured content data (Compl. ¶¶82, 30).

III. The Accused Instrumentality

Product Identification

The complaint identifies two categories of accused products:
1. Accused ASLR Products: Vizio tablets employing Android 4.0 or later and the Smartcast™ Tablet Remote that accompanies certain Vizio televisions (Compl. ¶16).
2. Accused TV Products: Vizio smart televisions, including the D-Series, E-Series, M-Series, P-Series, and Reference Series (Compl. ¶19).

Functionality and Market Context

The Accused ASLR Products are alleged to infringe by implementing Address Space Layout Randomization (“ASLR”), a security technique that randomizes the memory locations of software components to protect against exploits (Compl. ¶¶17-18). The complaint provides a screenshot of a technical document stating that "Android 4.0 now provides address space layout randomization" (Compl. ¶28, Ex. G).
The Accused TV Products are alleged to infringe by being capable of streaming and playing back secured digital content from services such as Netflix, YouTube, and Google Play (Compl. ¶19). This functionality allegedly involves creating a secure environment, managing content based on embedded watermarks or security status, and conducting trusted transactions using DRM technologies like Microsoft’s PlayReady, as described in a provided exhibit (Compl. ¶¶46, 73, Ex. L).

IV. Analysis of Infringement Allegations

U.S. Patent No. 5,745,569 Infringement Allegations

Claim Element (from Independent Claim 16)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
A method for copy protecting a software application ... the software application including a plurality of executable code resources...	Defendant's Accused ASLR Products utilize the Android operating system, which employs Address Space Layout Randomization (ASLR).	¶28	col. 1:5-12
determining an address within the memory of the computer system associated with each of the plurality of executable code resources; and	The Android OS with ASLR determines the memory addresses for various areas of memory such as the stack, heap, and libraries.	¶28	col. 8:15-19
intermittently relocating each of the plurality of executable code resources to a different address within the memory... during execution...	ASLR "randomizes where various areas of memory (eg. stack, heap, libs, etc) are mapped in the address space of a process" at execution time.	¶28	col. 8:20-24

U.S. Patent No. 8,930,719 Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
A computing device for running application software, comprising: an operating system; wherein said memory stores an application software;	The Accused ASLR Products are computing devices that utilize the Android operating system.	¶37	Patent document not provided for verification.
wherein said application software comprises (1) a memory scheduler code resource and (2) other code resources;	The Android OS employs ASLR, which shuffles various code resources in computer memory. The complaint alleges these functions constitute the claimed code resources.	¶37	Patent document not provided for verification.
wherein said application software is designed to call said memory scheduler code resource;	The complaint alleges the ASLR functionality is called upon to perform its function.	¶37	Patent document not provided for verification.
wherein said memory scheduler code resource, when called, functions to shuffle said other code resources in said memory; and	The complaint alleges ASLR protects software by shuffling various code resources. It provides a screenshot of a document stating ASLR "randomizes where various areas of memory ... are mapped."	¶37, Ex. G	Patent document not provided for verification.
wherein said memory scheduler code resource is designed to modify a stack frame in said memory.	The complaint alleges the ASLR technology modifies the stack frame. It provides a screenshot of a document stating that ASLR randomizes "the base points of the stack."	¶37, Ex. J	Patent document not provided for verification.

Identified Points of Contention

Scope Questions: A central dispute for the ’569 Patent may concern whether ASLR, an operating system security feature designed to thwart exploits, falls within the scope of a claim for "copy protecting a software application." A further question is whether ASLR’s randomization of memory locations at the start of execution meets the claim limitation of “intermittently relocating... during execution of the software application,” which suggests ongoing shuffling rather than a one-time setup.
Technical Questions: For the ’719 Patent, a key technical question will be whether Android’s implementation of ASLR contains an identifiable software component that functions as the claimed "memory scheduler code resource." The analysis may focus on whether ASLR is performed by a discrete, callable resource or is a more integrated function of the operating system's process loader that does not map cleanly to the claimed architecture.

V. Key Claim Terms for Construction

The Term: "intermittently relocating ... during execution of the software application" (’569 Patent, Claim 16)

Context and Importance: The definition of this term is critical because the accused ASLR technology is often described as randomizing memory layout once, at the start of a program's execution. Practitioners may focus on this term because the defendant may argue this one-time randomization is not "intermittent relocation" that occurs "during execution," while the plaintiff may argue it is.
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification describes a goal to "randomly re-organize program memory structure to prevent attempts at memory capture or object code analysis" ('569 Patent, col. 7:22-25). This broad goal could be argued to encompass a one-time randomization at launch, as it achieves the stated purpose.
- Evidence for a Narrower Interpretation: The specification explicitly describes a special "memory scheduler" that "can be called periodically, or at random or pseudo random intervals, at which time it intentionally shuffles the other code resources randomly in memory" ('569 Patent, col. 8:3-8). This language strongly suggests an ongoing process of relocation after the program has already started, potentially narrowing the term to exclude a one-time-at-launch randomization.

The Term: "memory scheduler code resource" (’719 Patent, Claim 1)

Context and Importance: This term appears to define a specific structural component of the claimed invention. Practitioners may focus on this term because the infringement analysis will depend on whether Android's ASLR functionality is implemented via a discrete software module that can be characterized as a "memory scheduler code resource" that is "called" by the application.
Intrinsic Evidence for Interpretation:
- The complaint does not provide sufficient detail from the ’719 Patent's specification for analysis of intrinsic evidence for this term.

VI. Other Allegations

Indirect Infringement: The complaint alleges inducement and contributory infringement for all seven patents. The allegations are based on the assertion that Defendant’s products are used by customers to directly infringe, that Defendant provides these products knowing they will be used to infringe, and that the products have no substantial non-infringing uses (e.g., Compl. ¶¶29, 38, 47).
Willful Infringement: Willfulness is alleged for all seven patents. The primary basis is alleged actual knowledge stemming from a prior infringement complaint filed by Blue Spike against Vizio in the Eastern District of Texas on January 30, 2017 (e.g., Compl. ¶32.a). For the ’719 Patent, the complaint additionally alleges knowledge from widely publicized prior lawsuits against major smartphone manufacturers (Compl. ¶41.b).

VII. Analyst’s Conclusion: Key Questions for the Case

A core issue will be one of technical and temporal scope: can claims from a 1996-filed patent directed at application-level "copy protection" be construed to cover a modern, OS-level security feature like ASLR? The interpretation of "intermittently relocating... during execution" will be dispositive for the lead patent.
A key evidentiary question will be one of structural mapping: does the accused Android operating system contain discrete, identifiable software components that perform the specific functions of the "memory scheduler code resource" as claimed in the ’719 patent, or does the system’s architecture differ in a way that avoids infringement?
A central question for the Secure Server and Trusted Transaction patents will be one of direct infringement and control: does Vizio, by incorporating third-party DRM and content streaming services into its smart televisions, directly practice the claimed methods for using a "Local Content Server" and conducting "trusted transactions," or does control over the allegedly infringing steps reside with the content providers or the end users?