Aylo Freesites Ltd v. DISH Technologies LLC

1. Case Identification

• Case #: IPR2024-00047
• Patent #: 9,407,564
• Filed: October 13, 2023
• Petitioner(s): Aylo Freesites Ltd
• Patent Owner(s): DISH Technologies LLC.
• Challenged Claims: 1-8, 10, and 12-16

2. Patent Overview

• Title: APPARATUS, SYSTEM, AND METHOD FOR ADAPTIVE-RATE SHIFTING OF STREAMING CONTENT
• Brief Description: The ’564 patent discloses a system for adaptive bitrate streaming of digital content. The system involves a server storing multiple copies of a video encoded at different bit rates and an end-user station that repeatedly generates a performance factor related to network conditions to dynamically shift between the different quality copies for continuous playback.

3. Grounds for Unpatentability

Ground 1: Obviousness over Ogdon - Claims 1-8, 10, and 12-16 are obvious over Ogdon.

• Prior Art Relied Upon: Ogdon (Patent 6,161,137).
• Core Argument for this Ground:
  • Prior Art Mapping: Petitioner asserted that Ogdon taught all limitations of the challenged claims. Ogdon disclosed a client-server system for distributing a video presentation over the internet, where content is available in multiple versions at different quality levels (e.g., full vs. limited animation). The client node in Ogdon dynamically and adaptively selected the appropriate quality version for the next segment of the presentation based on calculated network transmission characteristics, such as available bandwidth. Petitioner argued this process of repeatedly calculating network performance to select a quality level for sequential segments met the core limitations of independent claims 1 and 8, including generating a "factor" and making "successive determinations" to shift quality.
  • Key Aspects: For dependent claims, Petitioner argued Ogdon’s disclosure of accessing content from different network server nodes inherently taught or rendered obvious the use of multiple TCP connections (claim 2). It also contended that Ogdon’s system of monitoring data transmission rates and timely caching constituted a determination of whether higher quality playback could be sustained (claim 10).

Ground 2: Obviousness over Ogdon, Shteyn, and Chou - Claims 1-8, 10, and 12-16 are obvious over Ogdon in view of Shteyn and Chou.

• Prior Art Relied Upon: Ogdon (Patent 6,161,137), Shteyn (Patent 7,529,806), and Chou (Patent 6,637,031).
• Core Argument for this Ground:
  • Prior Art Mapping: Petitioner presented this ground as an alternative, asserting that to the extent Ogdon was found to not teach certain limitations, the combination with Shteyn and Chou would have rendered the claims obvious.
    • Shteyn was cited for its teaching of partitioning a content file into a sequence of segments, with multiple alternative files for each segment stored at the server encoded at different bitrates (e.g., different byte lengths and bandwidth requirements). Shteyn’s client application automatically selected the next segment format based on changing circumstances like network congestion.
    • Chou was introduced to teach minimizing start-up delay, a known problem in streaming media. Chou disclosed providing two streams, one low-resolution and one normal-resolution, and initially transmitting the low-resolution stream to reduce buffering delay before switching to the higher-quality stream. Chou also described network jitter as a factor indicative of the ability to sustain streaming.
  • Motivation to Combine: A POSITA would combine Ogdon with Shteyn to implement a more robust adaptive streaming system using explicitly defined alternative files for each segment, a known design choice. A POSITA would combine the teachings of Ogdon/Shteyn with Chou to solve the well-known and "particularly annoying" problem of start-up delay by starting with a lower quality stream, and to improve system responsiveness by incorporating network jitter as a performance factor to guard against buffer underflow.
  • Expectation of Success: Petitioner argued a POSITA would have a high expectation of success, as all three references were in the same field of adaptive client-server streaming, addressed analogous problems, and proposed compatible solutions.

4. Key Claim Construction Positions

• Petitioner asserted that no specific claim constructions were necessary for institution.
• However, Petitioner acknowledged that in a related ITC Investigation, the term "a factor indicative of the current ability to sustain the streaming... wherein the set of one or more factors relate to the performance of the network" was construed according to its plain and ordinary meaning.
• Petitioner argued that the challenged claims were unpatentable even under the ITC's constructions but reserved the right to challenge those constructions in the future.

5. Arguments Regarding Discretionary Denial

• §314(a) Fintiv Factors: Petitioner argued the Fintiv factors strongly favored institution. The parallel district court litigation was in its earliest stages, with no trial date set, making a Final Written Decision highly likely to issue first. Petitioner also stipulated that if the IPR was instituted, it would not pursue any invalidity ground in the district court litigation that was raised or could have been reasonably raised in the IPR.
• §325(d) Advanced Bionics Factors: Petitioner contended that discretionary denial under §325(d) was unwarranted because the prior art asserted in the petition (Ogdon, Shteyn, and Chou) was neither presented to nor considered by the USPTO examiner during the original prosecution of the ’564 patent. Therefore, the petition raised new arguments and art not previously before the Office.

6. Relief Requested

• Petitioner requests institution of an inter partes review and cancellation of claims 1-8, 10, and 12-16 of the ’564 patent as unpatentable.