DCT

1:24-cv-00086

Aylo Freesites Ltd v. DISH Tech LLC

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I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: 1:24-cv-00086, D. Del., 01/24/2024
  • Venue Allegations: Plaintiff Aylo alleges venue is proper in the District of Delaware because Defendants (DISH) are subject to personal jurisdiction there, based on DISH's extensive and repeated patent enforcement activities within the district, including litigating the same Asserted Patents against multiple Delaware-incorporated entities.
  • Core Dispute: Plaintiff seeks a declaratory judgment that its "Pornhub Streaming Services" do not infringe three of Defendants' patents related to adaptive bit-rate streaming technology.
  • Technical Context: The lawsuit concerns adaptive bit-rate (ABR) streaming, a foundational technology for delivering video content over the internet by dynamically adjusting video quality based on network conditions to ensure smooth playback.
  • Key Procedural History: The complaint arises from pre-suit correspondence in which DISH accused Aylo of infringement and provided exemplary claim charts. This action follows the dismissal of a prior declaratory judgment suit filed by Aylo in the Northern District of California for lack of personal jurisdiction. The complaint notes that DISH has engaged in a widespread litigation campaign asserting these patents against numerous other companies in the District of Delaware and at the International Trade Commission (ITC).

Case Timeline

Date Event
2004-04-30 Earliest Priority Date for '555, '156, and '138 Patents
2019-11-05 U.S. Patent No. 10,469,555 Issue Date
2020-08-25 U.S. Patent No. 10,757,156 Issue Date
2022-10-11 U.S. Patent No. 11,470,138 Issue Date
2023-03-17 DISH sends letter to Aylo (then MindGeek) alleging infringement of the '156 Patent
2023-07-07 DISH sends email to Aylo's counsel with claim charts for the '555, '156, and '138 Patents
2024-01-24 Complaint for Declaratory Judgment Filed

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

U.S. Patent No. 10,469,555 - "Apparatus, System, and Method for Multi-Bitrate Content Streaming"

Issued November 5, 2019.

The Invention Explained

  • Problem Addressed: The patent describes the fundamental challenges of delivering streaming media over packet-switched networks like the internet: reliability (network congestion causing interruptions), efficiency (fully utilizing available bandwidth), and latency (delays between a user request and the start of playback) ('555 Patent, col. 2:25-58).
  • The Patented Solution: The invention proposes a system that breaks a media file into a series of smaller, independent segments called "streamlets" ('555 Patent, col. 7:40-44). These streamlets are then encoded into multiple versions at different bit-rates (e.g., low, medium, high quality) ('555 Patent, col. 7:25-35). A client device can then dynamically request streamlets from the different quality streams based on real-time network conditions, allowing it to "shift" quality up or down to maintain continuous playback without buffering ('555 Patent, col. 3:6-10; col. 13:20-29).
  • Technical Importance: This adaptive streaming approach allows for a more resilient and higher-quality user experience over unpredictable networks compared to single-bitrate streaming or "progressive download" methods ('555 Patent, col. 2:8-23).

Key Claims at a Glance

  • Independent Claim 10 is asserted (Compl. ¶ 56).
  • Key elements include:
    • A content player device to stream a video... comprising: a processor; a digital processing apparatus memory device comprising non-transitory machine-readable instructions that... cause the processor to:
    • establish one or more network connections between the client module and the server;
    • wherein the video is encoded at a plurality of different bitrates to create a plurality of streams (low, medium, high quality);
    • wherein at least one of the... streams is encoded at a bit rate of no less than 600 kbps;
    • wherein the streamlet encoding the same portion of the video in the low quality stream has an equal playback duration as the streamlet encoding the same portion of the video in the high quality stream;
    • select a specific one of the streams based upon a determination by the client module to select a higher or lower bitrate version;
    • place a streamlet request to the server... for the selected stream;
    • receive the requested streamlets from the server; and
    • provide the received streamlets for playback of the video.
  • The complaint does not explicitly reserve the right to assert dependent claims.

U.S. Patent No. 10,757,156 - "Apparatus, System, and Method for Adaptive-Bitrate Shifting of Streaming Content"

Issued August 25, 2020.

The Invention Explained

  • Problem Addressed: The patent addresses the same core issues of reliability, efficiency, and latency inherent in streaming media over the internet ('156 Patent, col. 2:17-60).
  • The Patented Solution: The invention describes an "apparatus for rendering a video" (i.e., a client device) that actively manages the adaptive streaming process. The client's media player requests sequential video segments ("streamlets") from a server using standard HTTP GET requests. Crucially, the player "repeatedly generat[es]... a factor relating to the performance of the network" by monitoring responses, and then uses this factor to make "successive determinations to shift the playback quality" up or down to ensure continuous playback at the highest sustainable quality ('156 Patent, col. 14:26-44).
  • Technical Importance: This client-centric approach empowers the end-user device to intelligently manage its own streaming experience based on its unique, real-time network conditions, rather than relying on server-side logic ('156 Patent, col. 11:1-11).

Key Claims at a Glance

  • Independent Claim 1 is asserted (Compl. ¶ 58).
  • Key elements include:
    • An apparatus for rendering a video... comprising; a media player operating on the apparatus... wherein the media player streams the video by:
    • requesting sequential streamlets of one of the copies from the video server according to the playback times of the streamlets by transmitting hypertext transport protocol (HTTP) GET requests;
    • repeatedly generating, by the media player, a factor relating to the performance of the network that is indicative of an ability to sustain the streaming of the video;
    • adapting the successive determinations to shift the playback quality based on the factor to achieve continuous playback; and
    • presenting the video for playback by providing the requested streamlets in order of ascending start time.
  • The complaint does not explicitly reserve the right to assert dependent claims.

U.S. Patent No. 11,470,138 - "Apparatus, System, and Method for Multi-Bitrate Content Streaming"

Issued October 11, 2022.

  • Technology Synopsis: This patent, part of the same family, describes an adaptive bit-rate streaming system. The technology involves encoding a video into multiple streams of varying quality, segmenting those streams into "streamlets," and allowing a client device to request streamlets from the different streams to adapt to network conditions and ensure uninterrupted playback ('138 Patent, Abstract; col. 2:25-39).
  • Asserted Claims: Independent Claim 14 is asserted (Compl. ¶ 60).
  • Accused Features: The "Pornhub Streaming Services" are accused of operating in a way that infringes this patent (Compl. ¶ 2).

III. The Accused Instrumentality

Product Identification

Functionality and Market Context

  • The complaint describes the Accused Websites as services that provide streaming video content to end-users over the internet (Compl. ¶2). The infringement allegations center on the websites' use of adaptive bit-rate streaming technology to deliver this content (Compl. ¶44). The complaint notes that DISH's accusations are based on Aylo's alleged implementation of Apple's HTTP Live Streaming (HLS) protocol, a common ABR technology (Compl. ¶16). The complaint does not provide further detail on the technical operation of the Accused Websites or their market context, beyond identifying their function as streaming services. No probative visual evidence provided in complaint.

IV. Analysis of Infringement Allegations

The complaint references exemplary claim charts (Exhibits E-G) that were provided by DISH to Aylo pre-suit, but these exhibits are not attached to or included within the complaint document itself (Compl. ¶47). Therefore, a claim chart summary cannot be constructed. The analysis below is based on Aylo's narrative arguments for non-infringement.

  • '555 Patent Infringement Allegations
    • Aylo's complaint presents its theory of non-infringement for Claim 10. A primary argument is that the Accused Websites do not constitute a "content player device" comprising a "processor" and "memory device," because Aylo only provides websites, not the end-user hardware (Compl. ¶¶ 71-72). Aylo also contends that its websites do not request multiple streamlets at one time, which it suggests is a requirement of the claim (Compl. ¶ 70).
  • '156 Patent Infringement Allegations
    • For Claim 1, Aylo argues that it does not practice the claimed method because it does not have a "single server" performing all the recited functions, suggesting its architecture is distributed (Compl. ¶ 82). It further argues that its websites do not request streamlets "according to the playback times of the streamlets" (Compl. ¶¶ 83-84).
  • Identified Points of Contention:
    • Scope Questions: A principal dispute for the '555 and '138 Patents appears to be definitional: can the claim terms "content player device" and "end user station" be construed to read on a system where Aylo provides the streaming service (a website) and the end user provides the physical hardware (computer, phone) that contains the processor and memory? This raises a classic question of divided infringement, where different entities perform different steps or provide different components of a claimed system.
    • Technical Questions: For the '156 Patent, a key factual question will be whether the Accused Websites' ABR implementation functions as claimed. Specifically, what evidence will show whether the system requests streamlets "according to the playback times of the streamlets" and "repeatedly generat[es]... a factor relating to the performance of the network" to adapt quality? The answer may depend on a technical analysis of the HLS protocol as implemented by Aylo.

V. Key Claim Terms for Construction

  • Term ('555 Patent, Claim 10): "content player device... comprising: a processor; a digital processing apparatus memory device"
    • Context and Importance: This term is the foundation of Aylo's primary non-infringement defense for the '555 Patent. Aylo argues it only provides websites, not the physical "device" with a processor and memory (Compl. ¶¶ 71-72). The construction of this term will determine whether direct infringement is possible when the defendant provides a service that is executed on a user's hardware.
    • Intrinsic Evidence for Interpretation:
      • Evidence for a Broader Interpretation: The specification describes a "client module 114" that can be software configured to "play the content on the end user station 104," which itself may be a personal computer or other electronic device ('555 Patent, col. 6:59-63, Fig. 1). This could support an interpretation where providing the "client module" software for execution on a user's device satisfies the limitation.
      • Evidence for a Narrower Interpretation: The explicit recitation of physical hardware components—"a processor" and "a digital processing apparatus memory device"—in the claim language itself may support an argument that the claim is limited to a tangible, unitary apparatus, which Aylo does not provide to end users.
  • Term ('156 Patent, Claim 1): "requesting sequential streamlets... according to the playback times of the streamlets"
    • Context and Importance: This term is critical as Aylo specifically alleges its Accused Websites do not perform this step (Compl. ¶ 84). The interpretation of "according to the playback times" will be central to determining if there is a technical mismatch between the claim and the accused functionality.
    • Intrinsic Evidence for Interpretation:
      • Evidence for a Broader Interpretation: The specification describes streamlets having a "unique time index in relation to the beginning of the content" ('156 Patent, col. 5:1-3, as incorporated by reference from the parent application). This could support a reading where simply requesting streamlets in their chronological sequence (e.g., 0, 1, 2...) is sufficient to meet the limitation.
      • Evidence for a Narrower Interpretation: The phrase could be interpreted more technically to require a specific timing or scheduling mechanism for the requests that is directly calculated from the playback duration of each streamlet. The patent discusses arranging streamlets in "order of ascending playback time," which could be argued to imply more than simply requesting the next one in a manifest file ('156 Patent, col. 14:47-49).

VI. Other Allegations

  • Indirect Infringement: The complaint seeks a declaration that Aylo has not infringed "either directly or indirectly" (Compl. ¶ 2; Request for Relief ¶ 1). However, it does not set forth a detailed factual basis for any potential indirect infringement claims by either party.
  • Willful Infringement: The complaint requests a declaration that Aylo has not willfully infringed the asserted claims (Request for Relief ¶ 3). Any potential willfulness claim by DISH would likely be predicated on Aylo's alleged pre-suit knowledge of the patents, established by DISH's correspondence and provision of claim charts beginning on March 17, 2023 (Compl. ¶ 44), and continuing on July 7, 2023 (Compl. ¶ 47).

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

  • A core issue will be one of divided infringement and claim scope: Can DISH prove direct infringement of the apparatus claims ('555 and '138 Patents) when Aylo provides the streaming website and the end-user provides the physical "device" or "station" that contains the claimed processor and memory? The case may turn on whether providing the software/service layer is sufficient to meet the claim limitations for the entire apparatus.
  • A key evidentiary question will be one of technical operation: For the '156 Patent, does the accused HLS-based streaming service actually function in the manner required by the claims? Specifically, does it request streamlets "according to the playback times of the streamlets" and generate a performance "factor" in the way the patent describes, or is there a fundamental mismatch in how the accused system adapts to network conditions?