Blue Spike LLC v. Razer USA Ltd

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Blue Spike LLC (Texas)
  • Defendant: Razer USA Ltd. (Delaware)
  • Plaintiff’s Counsel: Garteiser Honea PLLC
• Case Identification: 6:17-cv-00099, E.D. Tex., 06/22/2017
• Venue Allegations: Plaintiff alleges venue is proper in the Eastern District of Texas because Defendant conducts business in the state, has committed alleged acts of infringement in the district, and is subject to personal jurisdiction.
• Core Dispute: Plaintiff alleges that Defendant’s ForgeTV and zVault product lines infringe seven patents related to three distinct technology groups: software security via memory randomization, secure personal content servers, and systems for conducting trusted digital transactions.
• Technical Context: The patents address foundational technologies in software security and digital rights management (DRM), which are critical for protecting intellectual property from unauthorized copying and reverse engineering in software and digital media distribution.
• Key Procedural History: The complaint alleges Defendant had knowledge of U.S. Patent No. 8,930,719 due to Plaintiff’s prior, widely publicized lawsuits asserting the same patent against five major smartphone manufacturers, which may be relevant to the allegations of willful infringement.

Case Timeline

Date	Event
1996-01-17	Priority Date for ’569 and ’719 Patents
1998-04-28	U.S. Patent No. 5,745,569 Issued
1999-08-04	Priority Date for ’246, ’561, and ’295 Patents
1999-12-07	Priority Date for ’116 and ’011 Patents
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, which implemented ASLR, is publicly released
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
2015-02-03	U.S. Patent No. US8930719B2 Issued
2015-12-09	Plaintiff's prior lawsuit asserting the '719 patent is reported
2017-06-22	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"

The Invention Explained

• Problem Addressed: The patent describes the problem of conventional software copy-protection being easily circumvented by skilled pirates who can analyze and "patch" executable code to disable the protection mechanisms (’569 Patent, col. 1:15-24). It also identifies memory capture analysis as a method of attack to reverse-engineer a program's functionality (’569 Patent, col. 7:21-30).
• The Patented Solution: The patent discloses a method to make software more resistant to such analysis by actively frustrating attempts at memory capture (’569 Patent, col. 2:5-8). It proposes a "memory scheduler," a special code resource that runs during the application's execution to "intentionally shuffle the other code resources randomly in memory," making it difficult for an attacker analyzing memory snapshots to understand the program's organization (’569 Patent, col. 8:1-12).
• Technical Importance: This technique represents an early description of what is now widely known as Address Space Layout Randomization (ASLR), a fundamental security feature in modern operating systems designed to prevent memory-corruption exploits.

Key Claims at a Glance

• The complaint asserts independent Claim 16 (Compl. ¶26).
• The essential elements of Claim 16 are:
  • A method for copy protecting a software application that includes a plurality of executable code resources loaded in a computer's memory.
  • Determining a memory address associated with each of the plurality of executable code resources.
  • Intermittently relocating each of the plurality of executable code resources to a different address within the memory during the application's execution.
• 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"

The Invention Explained

• Problem Addressed: As a continuation of the same patent family, the ’719 Patent addresses the same software security problems as the ’569 Patent, namely the vulnerability of static program memory layouts to analysis and attack (’569 Patent, col. 1:15-24).
• The Patented Solution: The invention claims a computing device where the application software itself contains a specific component—a "memory scheduler code resource"—that, when called, shuffles other code resources and is designed to modify the stack frame in memory (’719 Patent, Abstract). This provides a more specific architectural implementation of the memory randomization concept.
• Technical Importance: The claimed solution structures the memory-shuffling technique as a discrete, callable component within an application, providing a potential framework for software self-protection.

Key Claims at a Glance

• The complaint asserts independent Claim 1 (Compl. ¶37).
• The essential elements of Claim 1 are:
  • A computing device with an operating system and memory storing application software.
  • The application software comprises a "memory scheduler code resource" and "other code resources."
  • The application is designed to call the memory scheduler.
  • The memory scheduler, when called, functions to shuffle the other code resources in memory.
  • The memory scheduler is designed to modify a stack frame in memory.
• The complaint does not explicitly reserve the right to assert dependent claims for this patent.

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

• Technology Synopsis: The patent describes a method for securely distributing digital content to a consumer. The method involves embedding a first watermark to authenticate the content and a second, user-specific watermark, before transmitting the content to a "Local Content Server" (LCS) that then permits or denies use based on authorization (’246 Patent, Abstract).
• Asserted Claims: The complaint asserts Claim 17 (Compl. ¶48).
• Accused Features: The complaint alleges that the ForgeTV Products’ ability to play back secured content from streaming services like Netflix and HBO infringes this patent (Compl. ¶48).

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

• Technology Synopsis: The patent describes a method for a local content server (LCS) to manage digital data. The LCS inspects incoming data for a watermark to determine its status as "unsecure, secure, and legacy," and then applies a set of rules to process the data based on that status (’561 Patent, Abstract).
• Asserted Claims: The complaint asserts Claim 9 (Compl. ¶56).
• Accused Features: The complaint alleges that the ForgeTV Products’ functionality for playing both secured and unsecured content from streaming services infringes this patent (Compl. ¶56).

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

• Technology Synopsis: The patent describes a local content server (LCS) system that defines a "first LCS domain." The system determines if incoming content belongs to a different LCS domain and applies rules based on its status, managing content transfer between different trusted domains (’295 Patent, Abstract).
• Asserted Claims: The complaint asserts Claim 13 (Compl. ¶65).
• Accused Features: The complaint alleges that the ForgeTV Products’ ability to play secured and unsecured content from streaming services like Netflix and HBO infringes this patent (Compl. ¶65).

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

• Technology Synopsis: The patent claims a device for conducting a trusted transaction between parties. The device uses a "steganographic cipher" to generate unique identifying information (such as a party ID or transaction ID), governed by a predetermined key, message, and carrier signal (’116 Patent, Abstract).
• Asserted Claims: The complaint asserts Claim 14 (Compl. ¶74).
• Accused Features: The complaint alleges that Defendant’s zVault and ForgeTV products, which use the PlayReady DRM system employing unique device IDs and cryptographic keys for streaming services, infringe this patent (Compl. ¶75).

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

• Technology Synopsis: The patent claims a device for conducting trusted transactions that includes a "steganographic cipher," a device identification code, and a "steganographically ciphered software application." The device is configured to use the cipher to encrypt and transmit output data using a key (’011 Patent, Abstract).
• Asserted Claims: The complaint asserts Claim 36 (Compl. ¶82).
• Accused Features: The complaint alleges that the zVault and ForgeTV products’ use of the PlayReady DRM system, which authenticates data transmission using device IDs and keys, infringes this patent (Compl. ¶¶82-83).

III. The Accused Instrumentality

Product Identification

The complaint names Defendant’s ForgeTV products and its zVault products (including zVault, zGold, and zSilver) as the "Accused Products" (Compl. ¶15).

Functionality and Market Context

The complaint alleges that the ForgeTV Products are devices that utilize various versions of the Android Operating System, beginning with version 4.0 (Compl. ¶17). A key technical feature of this operating system is Address Space Layout Randomization ("ASLR"), a security technique that shuffles software components into random memory locations to protect against attacks (Compl. ¶16, ¶27). The ForgeTV products are also alleged to allow playback of streaming video services such as Netflix and HBO (Compl. ¶18). These services, in turn, are alleged to use digital rights management (DRM) systems, such as Microsoft’s PlayReady, which authenticates content delivery using unique device identifiers and cryptographic keys (Compl. ¶75, ¶82-83). The complaint alleges Defendant imports and sells these products in the United States through its online store and various resellers, as evidenced by a referenced screenshot of the online store in Exhibit A (Compl. ¶25).

IV. Analysis of Infringement Allegations

'569 Patent Infringement Allegations

Claim Element (from Independent Claim 16)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
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...	Defendant’s ForgeTV Products utilize the Android operating system, which employs Address Space Layout Randomization (ASLR), a security technique that protects software by shuffling it in computer memory (Compl. ¶27).	¶27	col. 8:16-18
determining an address within the memory of the computer system associated with each of the plurality of executable code resources; and	The Android 4.0 OS provides address space layout randomization, which involves determining the addresses of memory areas such as the stack, heap, and libraries so they can be mapped into the address space of a process (Compl. ¶27, Exhibit H). A referenced exhibit from an Android developer blog explains how ASLR randomizes where various areas of memory are mapped (Compl. ¶27, Exhibit H).	¶27	col. 8:18-20
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.	ASLR "randomizes where various areas of memory (eg. stack, heap, libs, etc) are mapped in the address space of a process" (Compl. ¶27, Exhibit H). A referenced exhibit further states that "Each instance of an executable will be given a randomized address space layout at execution time" (Compl. ¶27, Exhibit I).	¶27	col. 8:21-26

Identified Points of Contention

• Scope Questions: A question may arise as to whether the term "software application" being protected, as used in the patent, can be construed to mean a general-purpose operating system (Android). The patent's specification appears to describe a method for protecting a specific application program, whereas the complaint accuses the underlying OS that provides the protective functionality itself.
• Technical Questions: The claim requires "intermittently relocating" resources "during execution." The complaint cites evidence that Android's ASLR provides a "randomized address space layout at execution time" (Compl. ¶27, Exhibit I). A potential point of dispute is whether this one-time randomization at launch constitutes "intermittently relocating... during execution" as contemplated by the patent, which also describes a "memory scheduler" that can be called "periodically, or at random or pseudo random intervals" to shuffle resources (’569 Patent, col. 8:3-9).

'719 Patent 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;	The ForgeTV Products are computing devices that utilize the Android operating system (Compl. ¶38).	¶38	col. 7:65-67
wherein said application software comprises (1) a memory scheduler code resource and (2) other code resources;	The Android operating system employs ASLR, which is alleged to be a "memory scheduler code resource" that protects software by shuffling "other code resources" (e.g., stack, heap, libs) in computer memory (Compl. ¶38, Exhibit H).	¶38	col. 8:2-4
wherein said application software is designed to call said memory scheduler code resource;	The complaint alleges that the Android operating system utilizes ASLR technology, but does not specify how the OS as an "application software" is "designed to call" the ASLR feature as a discrete resource (Compl. ¶38).	¶38	col. 8:5-6
wherein said memory scheduler code resource, when called, functions to shuffle said other code resources...	The ASLR technique in Android "randomizes where various areas of memory (eg. stack, heap, libs, etc) are mapped in the address space of a process" (Compl. ¶38, Exhibit H).	¶38	col. 8:7-9
wherein said memory scheduler code resource is designed to modify a stack frame in said memory.	The complaint cites to Exhibit K, which allegedly states that ASLR "randomizes the base points of the stack, heap, shared libraries, and base executables," which is alleged to meet this limitation (Compl. ¶38, Exhibit K).	¶38	col. 8:10-12

Identified Points of Contention

• Scope Questions: The central dispute may be whether the ASLR functionality integral to the Android OS can be characterized as a "memory scheduler code resource" that is comprised by an "application software," as required by the claim structure. An argument could be made that the patent claims a discrete scheduler component within a specific application, not a system-wide security feature of the operating system itself.
• Technical Questions: The complaint alleges the limitation "modify a stack frame" is met by the allegation that ASLR "randomizes the base points of the stack" (Compl. ¶38, Exhibit K). A technical question for the court will be whether randomizing the starting address of the stack is functionally the same as the "modify a stack frame" operation described in the patent.

V. Key Claim Terms for Construction

The Term: "intermittently relocating" (’569 Patent, Claim 16)

• Context and Importance: The definition of this term is critical for determining the temporal scope of the claimed method. The dispute may turn on whether a single randomization of memory locations at the beginning of a program's execution meets this limitation, or if multiple relocations during a single runtime session are required.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The plain meaning of "intermittently" is "at intervals; not continuously." This could be read to encompass a single relocation event that occurs at the interval between non-execution and execution.
  • Evidence for a Narrower Interpretation: The specification describes a "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, so that someone trying to analyze snapshots of memory at various intervals cannot be sure if they are looking at the same code" (’569 Patent, col. 8:5-12). This language suggests a purpose of defeating analysis during an execution session, which may support a construction requiring multiple relocations.

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

• Context and Importance: This term defines the central component of the claimed device. Its construction will determine whether the system-level ASLR functionality of an OS can infringe, or if the claim is limited to a discrete software component contained within a specific application program.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The patent does not appear to provide an explicit definition that would limit the term to a specific implementation, which may allow for any block of code that performs the claimed scheduling and shuffling function to meet the definition.
  • Evidence for a Narrower Interpretation: The claim requires that the "application software comprises (1) a memory scheduler code resource and (2) other code resources." This suggests the scheduler is a component part of the application software, separate from the operating system. The parent patent’s specification refers to it as a "special code resource which knows about all the other code resources in memory" (’569 Patent, col. 8:1-3), reinforcing the idea of a distinct component.

VI. Other Allegations

Indirect Infringement

The complaint alleges both induced and contributory infringement for all seven patents. The allegations are based on Defendant importing, offering for sale, and selling the Accused Products, which are alleged to have no substantial non-infringing uses and to be especially adapted for infringement. The complaint further alleges inducement through Defendant's partners and resellers who demonstrate the infringing functionality (Compl. ¶¶28-29, 39-40).

Willful Infringement

Willfulness is alleged for all asserted patents. For the ’719 Patent, the basis is alleged pre-suit knowledge derived from "widely publicized and reported" prior lawsuits filed by Plaintiff against major smartphone manufacturers on the same patent (Compl. ¶42.a). For the ’569 Patent, the basis is alleged constructive notice due to the patent being forward-cited in over 300 subsequent patents from major technology companies (Compl. ¶31.a). For the remaining patents, willfulness is alleged based on general duties of "due diligence" and, in some instances, "prior litigation with Blue Spike LLC" (Compl. ¶¶51, 60, 69, 77, 85).

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

• A core issue will be one of architectural scope: Can the system-level ASLR security feature integral to the Android operating system be construed as a "memory scheduler code resource" comprised by a "software application," as required by the claims of the ASLR patents, or is there a fundamental mismatch between the patents' focus on a self-protecting application and the accused functionality of a general-purpose OS?
• A key evidentiary question will be one of functional equivalence: Does the complaint provide sufficient technical evidence to demonstrate that high-level functions of third-party DRM systems, like using device IDs and keys, perform the specific, multi-step methods of watermarking, content status analysis, and rule application recited in the claims of the Secure Server and Trusted Transaction patents?
• The dispute over willfulness will likely test the legal standard for pre-suit knowledge, raising the question of whether knowledge can be imputed to a defendant based on publicized litigation against unrelated third parties or on an extensive patent forward citation history.