Aylo Freesites Ltd v. DISH Tech LLC

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Aylo Freesites Ltd (Republic of Cyprus)
  • Defendant: DISH Technologies L.L.C. and Sling TV L.L.C. (Colorado)
  • Plaintiff’s Counsel: Richards, Layton & Finger, P.A.
• Case Identification: 2:25-cv-01003, D. Del., 01/24/2024
• Venue Allegations: Plaintiff alleges that venue is proper in Delaware because Defendants are subject to personal jurisdiction in the district, deeming them residents for venue purposes. The complaint asserts that Defendants have purposefully availed themselves of the forum through an extensive patent litigation campaign in Delaware involving the Asserted Patents.
• Core Dispute: Plaintiff seeks a declaratory judgment that its "Pornhub Streaming Services" do not infringe three of Defendant’s patents related to adaptive bit-rate video streaming technology.
• Technical Context: The technology at issue is adaptive bit-rate (ABR) streaming, a method for delivering video over the internet where the video quality dynamically adjusts based on the user's network conditions to ensure continuous playback.
• Key Procedural History: This declaratory judgment action follows pre-suit correspondence in which Defendant DISH accused Plaintiff Aylo of infringement and provided exemplary claim charts. 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). Aylo had previously filed a declaratory judgment action in the Northern District of California, which was dismissed for lack of personal jurisdiction over DISH.

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 Issued
2020-08-25	U.S. Patent No. 10,757,156 Issued
2022-10-11	U.S. Patent No. 11,470,138 Issued
2023-03-17	DISH sends letter to Aylo alleging infringement
2023-07-07	DISH sends claim charts to Aylo
2023-07-25	Aylo files first declaratory judgment action in N.D. Cal.
2024-01-24	Complaint Filing Date (D. Del.)

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 Nov. 5, 2019)

The Invention Explained

• Problem Addressed: The patent's background section describes the challenges of streaming media over packet-switched networks like the internet, which suffer from variable reliability, efficiency, and latency. Traditional streaming methods either sacrifice quality for real-time delivery or, like downloading, require users to wait, failing to provide an ideal viewing experience. (’555 Patent, col. 2:25-52).
• The Patented Solution: The invention discloses a system for adaptive-rate content streaming. A media file is segmented into small, sequential pieces called "streamlets." These streamlets are then encoded at multiple different bitrates (e.g., low, medium, and high quality). A client device can then request the appropriate quality version of each streamlet based on current network conditions, allowing the playback quality to shift up or down dynamically to avoid buffering while maximizing quality. (’555 Patent, Abstract; col. 3:11-23). This architecture is illustrated in Figure 3b, which shows sets of streamlets (306a, 306b) corresponding to the same moment in time but encoded at different quality levels (204, 206, 208). (’555 Patent, Fig. 3b).
• Technical Importance: This adaptive bit-rate (ABR) approach was foundational to enabling high-quality, uninterrupted video streaming over the public internet, addressing the core technical hurdles that previously limited the viability of such services. (’555 Patent, col. 2:58-67).

Key Claims at a Glance

• The complaint identifies independent claim 10 as asserted. (Compl. ¶¶2, 56).
• Essential elements of Claim 10 include:
  • A content player device for streaming video, comprising a processor and memory with instructions.
  • The instructions cause the processor to establish network connections with a server that can access groups of "streamlets."
  • The video is encoded at different bitrates (low, medium, high) to create multiple streams.
  • Each stream has streamlets encoding the same portion of the video as corresponding streamlets in other streams, but at different bitrates.
  • At least one stream is encoded at no less than 600 kbps.
  • Corresponding streamlets in the low and high quality streams have equal playback durations.
  • The device selects a specific stream based on a determination to use a higher or lower bitrate.
  • The device places a request for, receives, and provides the streamlets from the selected stream for playback.

U.S. Patent No. 10,757,156 - "Apparatus, System, and Method for Adaptive-Bitrate Shifting of Streaming Content" (issued Aug. 25, 2020)

The Invention Explained

• Problem Addressed: Like its family members, this patent addresses the unreliability and inefficiency of streaming media over networks with variable bandwidth and potential for data loss. (’156 Patent, col. 2:21-40).
• The Patented Solution: The invention describes an "apparatus for rendering a video" that contains a media player. This player streams video from a server where the content is stored in multiple, time-aligned copies at different bitrates. The core of the solution lies in the player's client-side logic: it "repeatedly generat[es]... a factor relating to the performance of the network" and uses this factor to make "successive determinations to shift the playback quality" to the highest level that can be sustained without interruption. (’156 Patent, Abstract; col. 13:20-29). Figure 7 illustrates the client-side components, including the "Agent Controller Module" (702) that manages streamlet requests and quality selection. (’156 Patent, Fig. 7).
• Technical Importance: The patent focuses on the client-side intelligence required for ABR streaming, detailing a method for a media player to actively monitor network conditions and make autonomous decisions to switch quality levels, a critical function for a smooth user experience. (’156 Patent, col. 2:54-62).

Key Claims at a Glance

• The complaint identifies independent claim 1 as asserted. (Compl. ¶¶2, 58).
• Essential elements of Claim 1 include:
  • An apparatus for rendering adaptively received video, comprising a media player.
  • The media player streams video from a server over a TCP connection.
  • The server stores multiple, time-aligned copies of the video encoded at different bitrates as sets of streamlets.
  • The media player requests sequential streamlets via HTTP GET requests.
  • Streamlet selection is based on successive determinations to shift playback quality.
  • The player repeatedly generates a network performance factor.
  • The player adapts its quality-shifting determinations based on this factor to achieve continuous playback.
  • The player presents the video by providing streamlets in ascending start time order.

U.S. Patent No. 11,470,138 - "Apparatus, System, and Method for Multi-Bitrate Content Streaming" (issued Oct. 11, 2022)

Technology Synopsis

This patent, from the same family as the ’555 and ’156 patents, addresses the problem of delivering streaming media reliably over variable-condition networks like the internet. (’138 Patent, col. 2:25-52). The patented solution describes an "end user station" that connects to a server, which provides access to video content encoded into multiple streams at different bitrates, with each stream composed of "streamlets." The end-user station selects a specific stream, requests streamlets from it, and provides them for playback, with the ability to shift to higher or lower bitrate streams. (’138 Patent, Abstract).

Asserted Claims

Independent claim 14. (Compl. ¶¶2, 60).

Accused Features

The complaint states DISH accuses the "Pornhub Streaming Services" of infringement. (Compl. ¶¶2, 90). Aylo's non-infringement argument centers on the assertion that its websites do not constitute an "end user station" and that Aylo does not provide the "processor" and "memory device" recited in the claim to end users. (Compl. ¶¶94-95).

III. The Accused Instrumentality

Product Identification

The accused instrumentalities are the "Pornhub Streaming Services," which include the websites www.pornhub.com and www.pornhubpremium.com (the "Accused Websites"). (Compl. ¶2).

Functionality and Market Context

The complaint identifies the Accused Websites as services that provide streaming video content to users. (Compl. ¶¶2-3). DISH's underlying infringement theory, as presented in the complaint, is that these services use adaptive bit-rate streaming technology that falls within the scope of the Asserted Patents. (Compl. ¶¶44, 47-48). The complaint itself, seeking a declaration of non-infringement, focuses its technical descriptions on arguing why the Accused Websites do not meet specific claim limitations. (Compl. ¶¶69-72, 81-86, 94-95). No probative visual evidence provided in complaint.

IV. Analysis of Infringement Allegations

The complaint references exemplary claim charts provided by DISH, but these exhibits are not attached to the publicly filed complaint. (Compl. ¶¶3, 47-48). Therefore, the infringement allegations are summarized below based on the complaint's narrative description of DISH's contentions and Aylo's corresponding non-infringement arguments.

U.S. Patent No. 10,469,555 Narrative Summary (Claim 10)

DISH allegedly contends that the Accused Websites infringe claim 10. (Compl. ¶64). Aylo’s complaint for declaratory judgment counters this by arguing that its services do not meet key limitations of the claim. A primary point of dispute is the requirement of a "content player device comprising: a processor; a digital processing apparatus memory device." (Compl. ¶71). Aylo argues that it only provides websites and does not provide such hardware to end users. (Compl. ¶72). Aylo further contends that its services do not perform the claimed steps of placing specific "streamlet request[s]," receiving "requested streamlets," and providing them for playback as recited in the claim. (Compl. ¶69).

• Identified Points of Contention:
  • Scope Question: A central issue may be whether the term "content player device," as recited in the claim, can be construed to cover the combination of an end-user's computer and web browser when accessing Aylo's website, or if it is limited to a tangible device that Aylo itself provides. This raises a fundamental question of where the claimed device is assembled and used.
  • Technical Question: Does the technical operation of the Accused Websites involve selecting a bitrate-specific stream and then requesting individual streamlets from that selected stream, as the claim language requires?

U.S. Patent No. 10,757,156 Narrative Summary (Claim 1)

DISH allegedly contends that the Accused Websites infringe claim 1. (Compl. ¶76). Aylo argues that its services do not constitute "[a]n apparatus for rendering a video" that includes "a media player" performing the claimed functions. (Compl. ¶81). The complaint also asserts that Aylo "does not have a single server performing each limitation of claim 1," suggesting that the architecture of the Accused Websites may not map onto the claim's requirement for "the video server" to perform certain functions. (Compl. ¶82). Additionally, Aylo disputes that its services request streamlets "according to the playback times of the streamlets." (Compl. ¶84).

• Identified Points of Contention:
  • Scope Question: Similar to the '555 Patent, a key dispute will be whether Aylo's provision of a website can be deemed the provision of an "apparatus for rendering a video" under the claim.
  • Technical Question: Does the architecture of the Accused Websites rely on a single, logical "video server" that performs all functions recited in the claim, or is functionality distributed in a manner that no single entity meets all limitations?

V. Key Claim Terms for Construction

The Term: "content player device" (’555 Patent, cl. 10)

• Context and Importance: This term is critical because Aylo's primary non-infringement defense is that it provides a website, not a physical "device" with a "processor" and "memory." (Compl. ¶¶71-72). The outcome of the case may depend on whether liability for infringing this apparatus claim can attach to a service provider whose service is accessed by end-user devices.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification describes the system in terms of an "end user station 104" running a "client module 114," which could be a personal computer or other electronic device. (’555 Patent, col. 6:45-51, 60-62). This may support an interpretation that the "device" is the end-user's hardware executing software to interact with Aylo's servers.
  • Evidence for a Narrower Interpretation: The claim explicitly recites the hardware components "a processor" and "a digital processing apparatus memory device." This specific language may support a narrower construction limited to a tangible piece of hardware, which Aylo asserts it does not provide to users. (Compl. ¶72).

The Term: "a video server" / "the video server" (’156 Patent, cl. 1)

• Context and Importance: Aylo argues that it "does not have a single server performing each limitation of claim 1." (Compl. ¶82). The construction of this term will determine whether the claim can read on a distributed, cloud-based architecture or if it requires a single, monolithic server.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification discloses a system where a "content server 102" can replicate content to numerous other "web servers 116" or "proxy cache servers 118." (’156 Patent, col. 5:26-34). This contemplation of a distributed system could support construing "a video server" as a logical system.
  • Evidence for a Narrower Interpretation: The claim's use of "a video server" followed by subsequent references to "the video server" may suggest that a single entity must perform all the functions associated with that element. Aylo cites case law for the principle that subsequent references to "said microprocessor" require that one microprocessor be capable of performing all recited functions, suggesting a similar argument applies here. (Compl. ¶82).

VI. Other Allegations

• Indirect Infringement: The complaint seeks a declaration of non-infringement both directly and indirectly. (Compl. p. 22, ¶1). However, it does not set forth specific factual allegations from DISH that would form the basis of a claim for induced or contributory infringement.
• Willful Infringement: The complaint requests a declaration that Aylo has not willfully infringed the asserted claims. (Compl. p. 22, ¶3). The basis for a potential willfulness allegation by DISH is established by the complaint's acknowledgment of receiving pre-suit notice letters and claim charts from DISH on March 17, 2023, and July 7, 2023, which provided Aylo with knowledge of the patents and DISH's infringement contentions. (Compl. ¶¶44, 47).

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

• A core issue will be one of divided infringement and definitional scope: can a service provider like Aylo, which operates websites, be found to directly infringe apparatus claims reciting a "content player device" or "apparatus for rendering a video," where the physical components (processor, memory) are part of the end-user's hardware and not supplied by the provider?
• A second key issue will be one of architectural mapping: does the claim term "a video server," followed by "the video server," require all associated functions to be performed by a single, cognizable entity, and if so, does the potentially distributed architecture of the Accused Websites meet that requirement?