DCT
1:18-cv-01512
Blue Spike LLC v. DISH Network Corp
Key Events
Complaint
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Blue Spike, LLC (Texas)
- Defendant: DISH Network Corp (Nevada), DISH Network LLC. (Colorado), and DISH Network Service LLC. (Colorado)
- Plaintiff’s Counsel: Garteiser Honea PLLC
- Case Identification: 6:18-cv-00333, E.D. Tex., 07/06/2018
- Venue Allegations: Plaintiff alleges venue is proper in the Eastern District of Texas because Defendant maintains a regular and established place of business in the district, including preferred retailers, and derives substantial revenue from offering products and services to homes and businesses within the district.
- Core Dispute: Plaintiff alleges that Defendant’s DISH Fiber Internet and DISH TV products and services infringe twelve patents related to packet watermarking, secure data transmission, and secure personal content servers.
- Technical Context: The patents address methods for embedding identifying or functional data into digital data streams at the packet level to manage bandwidth, authenticate data, and secure content in network communications.
- Key Procedural History: The complaint alleges that Plaintiff has licensed its patents to competitors of the Defendant, but does not specify any prior litigation or inter partes review proceedings involving the patents-in-suit.
Case Timeline
| Date | Event |
|---|---|
| 1999-08-04 | Earliest Priority Date for ’246, ’295, ’602, ’842, and ’408 Patents |
| 1999-12-07 | Earliest Priority Date for ’116 and ’011 Patents |
| 2002-04-17 | Earliest Priority Date for ’222, ’307, ’275, ’746, and ’705 Patents |
| 2007-01-02 | U.S. Patent No. 7,159,116 Issues |
| 2007-10-23 | U.S. Patent No. 7,287,275 Issues |
| 2009-01-06 | U.S. Patent No. 7,475,246 Issues |
| 2012-07-17 | U.S. Patent No. 8,224,705 Issues |
| 2013-05-21 | U.S. Patent No. RE44,222 Issues |
| 2013-06-18 | U.S. Patent No. RE44,307 Issues |
| 2013-06-25 | U.S. Patent No. 8,473,746 Issues |
| 2013-09-17 | U.S. Patent No. 8,538,011 Issues |
| 2014-05-27 | U.S. Patent No. 8,739,295 Issues |
| 2015-04-28 | U.S. Patent No. 9,021,602 Issues |
| 2015-08-11 | U.S. Patent No. 9,104,842 Issues |
| 2018-04-10 | U.S. Patent No. 9,934,408 Issues |
| 2018-07-06 | Complaint Filed |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. RE44,222E1 - “Methods, systems and devices for packet watermarking and efficient provisioning of bandwidth”
- Issued: May 21, 2013
The Invention Explained
- Problem Addressed: The patent addresses the need for more efficient optimization and provisioning of network bandwidth, noting that prior art methods for ensuring Quality of Service (“QoS”) were insufficient for handling the increasing demand for data objects like streaming audio and video, especially in light of peer-to-peer technologies (U.S. Patent No. 7,287,275, col. 2:25-56).
- The Patented Solution: The invention proposes embedding a “packet watermark” into data packets. This watermark can be used to prioritize data traffic, define the data being transmitted in terms consistent with its ownership or usage rights, and enable authentication of the data packets as they traverse a network (’275 Patent, col. 4:24-42). This allows for more granular control over bandwidth allocation and data integrity than traditional network protocols (’275 Patent, col. 3:45-50).
- Technical Importance: The technology suggests a method for embedding metadata directly into the data stream at the packet level, providing a mechanism for network infrastructure to make intelligent routing and provisioning decisions based on the content itself rather than just on packet headers (’275 Patent, col. 3:1-12).
Key Claims at a Glance
- The complaint asserts independent claim 1 against the DISH Fiber Internet products and independent claim 12 against the DISH TV products (Compl. ¶¶31, 213).
- Independent Claim 1 (Process):
- A process for transmitting a stream of data, comprising:
- receiving a stream of data;
- organizing the stream of data into a plurality of packets;
- generating a packet watermark associated with the stream of data wherein the packet watermark indicates the integrity of at least one of the plurality of packets;
- combining the packet watermark with each of the plurality of packets to form watermarked packets; and
- transmitting at least one of the watermarked packets across a network.
- Independent Claim 12 (System):
- A system for provisioning content, comprising:
- a processor to receive content and to organize the content into a plurality of packets;
- a generator to generate at least one packet watermark associated with the content;
- a packager to combine the generated packet watermark with at least one of the plurality of packets to form watermarked packets; and
- a transmitter to transmit at least one of the watermarked packets across a network.
U.S. Patent No. RE44,307 - “Methods, systems and devices for packet watermarking and efficient provisioning of bandwidth”
- Issued: June 18, 2013
The Invention Explained
- Problem Addressed: As with the ’222 Patent, this patent (also a reissue of the ’275 Patent) addresses the need for more efficient and intelligent allocation of network bandwidth beyond traditional Quality of Service approaches (U.S. Patent No. 7,287,275, col. 2:25-56).
- The Patented Solution: The invention describes a process where data streams are organized into packet flows, and a processor generates and combines a "packet watermark" with the packets. This watermark is designed to "enable discrimination between packet flows," allowing network hardware to make more granular provisioning decisions (’275 Patent, col. 4:24-42).
- Technical Importance: This approach provided a mechanism to embed intelligence into data packets themselves, allowing for more dynamic and content-aware network management than prior art methods that relied on less granular information (’275 Patent, col. 3:1-12).
Key Claims at a Glance
- The complaint asserts independent claim 1 against both the DISH Fiber Internet and DISH TV products (Compl. ¶¶62, 243).
- Independent Claim 1 (Process):
- A process for provisioning a stream of data, comprising:
- receiving a stream of data;
- organizing the stream of data into a packet flow comprising a plurality of packets;
- generating, using a processor, a packet watermark associated with the packet flow wherein the packet watermark enables discrimination between packet flows;
- combining, using a processor, the packet watermark with each of the plurality of packets to form watermarked packets; and
- provisioning at least one of the watermarked packets across a network.
U.S. Patent No. 7,287,275B2 - “Methods, systems and devices for packet watermarking and efficient provisioning of bandwidth”
- Issued: Oct. 23, 2007
- Technology Synopsis: This is the original patent from which the ’222 and ’307 patents were reissued. The technology concerns embedding "packet watermarks" into data streams to manage network traffic, identify data, and provision bandwidth with greater granularity than prior art methods (Compl. ¶¶90, 93).
- Asserted Claims: Independent claim 1 is asserted against both DISH Fiber Internet and DISH TV products (Compl. ¶¶93, 272).
- Accused Features: The complaint alleges that the routers and "Managed Wi-Fi" of the DISH Fiber Internet service, and the content provisioning system of DISH TV, perform the claimed method of receiving, organizing, watermarking, and transmitting data packets (Compl. ¶¶95-96, 273).
U.S. Patent No. 8,473,746B2 - “Methods, systems and devices for packet watermarking and efficient provisioning of bandwidth”
- Issued: June 25, 2013
- Technology Synopsis: This patent, related to the '275 patent family, claims a router specifically structured and configured to receive a transmission that includes a data packet, an associated watermark, and a "bandwidth rights certificate," and to use a processor to analyze and authenticate the transmission (Compl. ¶¶121, 124).
- Asserted Claims: Independent claim 1 is asserted against DISH Fiber Internet products (Compl. ¶124).
- Accused Features: The complaint alleges that routers used in the DISH Fiber Internet service, including "Managed Wi-Fi" routers, are configured to receive and analyze data packets that allegedly contain watermarks signifying priority or Quality of Service (Compl. ¶¶126-127).
U.S. Patent No. 8,224,705 - “Methods, systems and devices for packet watermarking and efficient provisioning of bandwidth”
- Issued: July 17, 2012
- Technology Synopsis: This patent, related to the '275 patent family, claims a two-way communication system for selling an item or service. The system uses an exchange system that transmits a stream of data using a "packet watermark protocol" to enable identification of packets, which can be used for advertising, transactions, or delivery of a selected item (Compl. ¶¶298, 301).
- Asserted Claims: Independent claim 19 is asserted against DISH TV products (Compl. ¶301).
- Accused Features: The complaint alleges that the DISH TV "on demand" system, which allows users to purchase products, constitutes the claimed two-way communication system that uses watermarked packets (Compl. ¶302).
U.S. Patent No. 7,475,246 - “Secure personal content server”
- Issued: Jan. 6, 2009
- Technology Synopsis: This patent describes a local content server (LCS) system for creating a secure environment for digital content. The system includes a communications port to connect to a Secure Electronic Content Distributor (SECD), storage, and a domain processor that imposes rules for content transfer, including authorizing content based on quality levels (Compl. ¶¶327, 330).
- Asserted Claims: Independent claim 3 is asserted against DISH TV products (Compl. ¶330).
- Accused Features: The complaint alleges that the DISH TV system contains an LCS that practices the claimed method of creating a secure environment for digital content (Compl. ¶331).
U.S. Patent No. 8,739,295B2 - “Secure personal content server”
- Issued: May 27, 2014
- Technology Synopsis: This patent, related to the '246 patent, claims an LCS with a domain processor that imposes rules for content transfer between the LCS and outside devices. The LCS is configured to determine if incoming content belongs to a different LCS domain and to determine a status value (e.g., unsecure, secure, legacy) to decide which rules to apply (Compl. ¶¶356, 359).
- Asserted Claims: Independent claim 1 is asserted against DISH TV products (Compl. ¶359).
- Accused Features: The complaint alleges that the DISH TV system provides an LCS server that practices the claimed method for creating a secure environment for digital content (Compl. ¶360).
U.S. Patent No. 9,021,602 - “Data Protection and Device”
- Issued: Apr. 28, 2015
- Technology Synopsis: This patent is related to the '246 patent family and claims a local content server system (LCS) configured to receive a data set, determine if it belongs to a different LCS domain, and exclude it if so. It is further configured to determine a status value (unsecure, secure, legacy) from the data set and apply rules accordingly (Compl. ¶¶385, 388).
- Asserted Claims: Independent claim 1 is asserted against DISH TV products (Compl. ¶388).
- Accused Features: The complaint alleges that the DISH TV system contains an LCS server that practices the claimed method for creating a secure environment for digital content (Compl. ¶389).
U.S. Patent No. 9,104,842 - “Data Protection and Device”
- Issued: Aug. 11, 2015
- Technology Synopsis: This patent, related to the '246 patent family, claims an LCS with similar features to the '602 patent: determining content domain, excluding content from different domains, and using a status value from the data set to apply processing rules (Compl. ¶¶414, 417).
- Asserted Claims: Independent claim 1 is asserted against DISH TV products (Compl. ¶417).
- Accused Features: The complaint alleges that the DISH TV system provides an LCS server that practices the claimed method for creating a secure environment for digital content (Compl. ¶418).
U.S. Patent No. 9,934,408 - “Secure personal content server”
- Issued: Apr. 10, 2018
- Technology Synopsis: This patent, also in the '246 family, claims an LCS with features nearly identical to those in the '602 and '842 patents, focusing on domain-based content filtering and rule application based on a data set's status value (Compl. ¶¶443, 446).
- Asserted Claims: Independent claim 1 is asserted against DISH TV products (Compl. ¶446).
- Accused Features: The complaint alleges that the DISH TV system contains an LCS server that practices the claimed method for creating a secure environment for digital content (Compl. ¶447).
U.S. Patent No. 7,159,116B2 - “Systems, methods and devices for trusted transactions”
- Issued: Jan. 2, 2007
- Technology Synopsis: This patent describes a device for conducting a trusted transaction between parties. It comprises means for uniquely identifying information (e.g., a party, a transaction), a "steganographic cipher" for generating that information using a key and message, and means for verifying the agreement to transact (Compl. ¶¶152, 155).
- Asserted Claims: Independent claim 14 is asserted against DISH Fiber Internet products, and independent claim 1 is asserted against DISH TV products (Compl. ¶¶155, 475).
- Accused Features: The complaint alleges that the DISH Fiber Internet service institutes trusted transactions (Compl. ¶156) and that the DISH TV system provides an LCS that practices the claimed method for creating a secure environment for digital content (Compl. ¶476).
U.S. Patent No. 8,538,011B2 - “Systems, methods and devices for trusted transactions”
- Issued: Sep. 17, 2013
- Technology Synopsis: This patent, related to the '116 patent, claims a device for conducting trusted transactions that comprises a steganographic cipher, a controller, an I/O connection, a device ID code, an A/D converter, and a steganographically ciphered software application (Compl. ¶¶181, 184, 501, 504).
- Asserted Claims: Independent claim 35 is asserted against DISH Fiber Internet products, and independent claim 1 is asserted against DISH TV products (Compl. ¶¶184, 504).
- Accused Features: The complaint alleges that the DISH Fiber Internet service institutes trusted transactions (Compl. ¶185) and that the DISH TV system provides an LCS server that practices the claimed method for creating a secure environment for digital content (Compl. ¶505).
III. The Accused Instrumentality
Product Identification
- The complaint identifies two categories of accused instrumentalities: (1) "DISH Fiber Internet Accused Products and Services" and (2) "DISH TV Accused Products and Services" (Compl. ¶¶19, 21). The complaint often refers to the DISH TV products as "Spectrum Accused Products and Services" in later counts (e.g., Compl. ¶211).
Functionality and Market Context
- The DISH Fiber Internet products are described as internet services that use systems and processes, including "Managed Wi-Fi instituting routers," for transmitting streams of data (Compl. ¶¶32-33). The complaint alleges these routers organize data into packets and generate packet watermarks that signify priority or Quality of Service (QoS) (Compl. ¶33). A screenshot from Defendant's business webpage for "DISH Fiber Internet" is provided as an example of Defendant's offering (Compl. p. 7, Figure 1).
- The DISH TV products are described as television systems that provide for the provisioning of content (Compl. ¶214). These systems allegedly contain processors to organize content into packets, a "packager" to combine watermarks with packets, and a transmitter (Compl. ¶215). The complaint also alleges these systems include a "local content server system (LCS)" for creating a secure environment for digital content and an "on demand" feature for purchasing products (Compl. ¶¶302, 331). A screenshot of Defendant's offering for "DISH TV Accused Products and Services" is included as representative of this product line (Compl. p. 8, Figure 2).
IV. Analysis of Infringement Allegations
RE44,222E1 Infringement Allegations (DISH Fiber Internet)
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| A process for transmitting a stream of data, comprising: receiving a stream of data; | Defendant's systems receive streams of data from consumer end-points and other routers. | ¶34 | ’275 Patent, col. 7:42-45 |
| organizing the stream of data into a plurality of packets; | Defendant’s routers organize the stream of data into a plurality of packets. | ¶33 | ’275 Patent, col. 7:46-47 |
| generating a packet watermark associated with the stream of data wherein the packet watermark indicates the integrity of at least one of the plurality of packets; | One or more routers allegedly generate a packet watermark that signifies priority or Quality of Service (QoS). | ¶33 | ’275 Patent, col. 7:48-52 |
| combining the packet watermark with each of the plurality of packets to form watermarked packets; | The packets are allegedly classified and differentiated based on the bits watermarked into the packet’s IP header, which constitute watermarked packets. | ¶34 | ’275 Patent, col. 7:53-56 |
| and transmitting at least one of the watermarked packets across a network. | Defendant's products transmit these watermarked packets between routers, switches, and consumer devices across a network. | ¶32 | ’275 Patent, col. 7:57-59 |
RE44,222E1 Infringement Allegations (DISH TV)
| Claim Element (from Independent Claim 12) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| A system for provisioning content, comprising: a processor to receive content and to organize the content into a plurality of packets; | Defendant provides DISH TV, which contains a processor to both receive content and organize it into a plurality of packets. | ¶214 | ’275 Patent, col. 8:13-16 |
| a generator to generate at least one packet watermark associated with the content; | The DISH TV system allegedly generates at least one packet watermark associated with the content. | ¶214 | ’275 Patent, col. 8:17-19 |
| a packager to combine the generated packet watermark with at least one of the plurality of packets to form watermarked packets; | Defendant provides via DISH TV a packager to combine the generated packet watermark with at least one packet to form watermarked packets. | ¶215 | ’275 Patent, col. 8:20-23 |
| and a transmitter to transmit at least one of the watermarked packets across a network. | Defendant provides a transmitter to transmit at least one of the watermarked packets across a network. | ¶215 | ’275 Patent, col. 8:24-26 |
RE44,307 Infringement Allegations (DISH Fiber Internet & DISH TV)
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| A process for provisioning a stream of data, comprising: receiving a stream of data; | The accused systems receive streams of data from consumer end-points and other network devices. | ¶¶65, 244 | ’275 Patent, col. 7:42-45 |
| organizing the stream of data into a packet flow comprising a plurality of packets; | The accused routers and systems organize the stream of data into a plurality of packets. | ¶¶64, 244 | ’275 Patent, col. 7:46-47 |
| generating, using a processor, a packet watermark associated with the packet flow wherein the packet watermark enables discrimination between packet flows; | The routers allegedly generate a packet watermark that signifies priority or Quality of Service (QoS), which allegedly enables discrimination. | ¶¶64, 244 | ’275 Patent, col. 8:4-8 |
| combining, using a processor, the packet watermark with each of the plurality of packets to form watermarked packets; | Packets are allegedly marked and differentiated based on bits watermarked into the IP header. | ¶¶65, 244 | ’275 Patent, col. 8:9-12 |
| and provisioning at least one of the watermarked packets across a network. | The accused systems provision and transmit the watermarked packets across a network. | ¶¶63, 244 | ’275 Patent, col. 8:13-15 |
Identified Points of Contention
- Scope Questions: The infringement theory for the '222 and '307 Patents appears to equate standard Quality of Service (QoS) bits in an IP header with the claimed "packet watermark." A central question will be whether the term "packet watermark," as described and defined in the '275 Patent specification, can be construed to read on pre-existing, standardized bits in a packet's IP header, or if it requires a distinctly generated and combined data element as suggested by the claim language "generating" and "combining."
- Technical Questions: What evidence does the complaint provide that the accused DISH routers perform the specific act of "generating" a watermark? The allegations state that routers "generate a packet watermark that signifies...QoS" (Compl. ¶33), which raises the question of whether this refers to the creation of new data or the setting of existing bits in a standard protocol header.
V. Key Claim Terms for Construction
- The Term: "packet watermark"
- Context and Importance: This term is the central inventive concept of the '222 and '307 Patents. Its construction will likely determine whether the accused functionality, which the complaint describes in terms of standard network Quality of Service (QoS), falls within the scope of the claims. Practitioners may focus on this term because the dispute appears to hinge on whether standard QoS bits in an IP header can be considered a "packet watermark."
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The '275 Patent specification, from which the asserted claims derive, states that the "present invention offers a means for utilizing watermarks... to prioritize data traffic" ('275 Patent, col. 4:28-31). This focus on the function of prioritization could support an argument that any data bits used for that purpose, including standard QoS bits, constitute a "packet watermark."
- Evidence for a Narrower Interpretation: The claim language requires steps of "generating" and "combining" the watermark. The specification also describes generating a "watermark packet key" and a "unique identifier" associated with it ('275 Patent, col. 6:49-55). This language may suggest that a "packet watermark" is a specially created data structure, not merely the setting of predefined bits in a standard IP header.
VI. Other Allegations
- Indirect Infringement: The complaint alleges both induced and contributory infringement for all asserted patents. Inducement allegations are based on Defendant allegedly instructing its customers on how to use the accused products through instructions, technical support, demonstrations, and tutorials (e.g., Compl. ¶¶43-46, 74-77). Contributory infringement is alleged on the basis that the accused functionality has no substantial non-infringing uses (e.g., Compl. ¶¶50, 81).
- Willful Infringement: Willfulness is alleged for all counts. The primary basis for knowledge of the patents is post-suit, stemming from the filing and service of the complaint itself (e.g., Compl. ¶¶53(a), 84(a)). The complaint also makes general allegations, on "information and belief," of pre-suit knowledge derived from Defendant's due diligence, news coverage of Plaintiff's enforcement activities, and unspecified "blog postings" (e.g., Compl. ¶¶53(b-e), 84(b-c)).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of definitional scope: can the term "packet watermark," which the claims require to be "generated" and "combined" with packets, be construed to cover the setting of pre-defined Quality of Service (QoS) bits in a standard Internet Protocol header, or does the patent require the creation of a distinct, proprietary data structure?
- A second key issue will be one of technical evidence: what factual support will exist to show that the accused DISH routers and TV systems perform the specific, affirmative steps recited in the claims—such as "generating" a watermark that "indicates integrity" or "enables discrimination"—as opposed to merely implementing standard, conventional network traffic prioritization protocols?