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All Roads Lead to ABR Royalties

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IdeaHub and Helios Streaming sued Crackle, Vudu, and Showtime Digital this autumn for infringing upon their DASH-related patents. While these suits percolate through the system, this leaves many larger DASH users wondering when they'll see a complaint while the rest of us wonder "what happens now?"

To answer the second question, I spoke with patent attorney David Long, who's the author of the Essential Patents blog. David was not familiar with the DASH suits when I caught him while he was traveling, but helped guide me through the general alternatives available to the defendants. Any statements below not directly attributed to Long come from me, not him.

According to Long, a typical patent infringement suit should take about 2 years to resolve, barring any appeals. If a trial is held, the case would be decided by a judge or jury who are not patent experts or even particularly technical.

According to Long, one potentially attractive alternative is an inter partes review (IPR), which would be cheaper, faster, and adjudicated by a panel of three administrative patent judges rather than a lay judge or jury. IPRs have two phases. First, you file a petition identifying the challenges to each claim(s) of the patent, to which the patent owner has 3 months to respond. Three months later, the Patent Office must either dismiss the claim or "institute" the inter partes review upon a finding that the petitioner has a "reasonable likelihood" to prevail on at least one of the claims challenged in the patent. The Patent Office must rule on the case within 12 months (barring a "good cause" six-month extension) for a total duration of 18 months.

Note that the only issue adjudicated within an IPR is the patentability of the patent and associated claims, and then only issues raised under Section 102 (novelty) or Section 103 (non-obvious subject matter) of the Patent Act. So, you can't argue that your implementation isn't infringing in an IPR, only that the patent claim is invalid. The initial petition must be supported by actual patents or other printed publications, or affidavits or declarations if the petitioner is relying upon expert opinions.

Here's the part where I freelance while Long provides reality checks. When it comes to adaptive streaming, there's lots of prior art that precede the patents asserted by Helios Streaming, which all originate after July 2011. This goes back to Move Network's 2010 patent on adaptive streaming (US Patent 7,818,444) entitled "Apparatus, system, and method for multi-bitrate content streaming." Then, there's the Emblaze patent 6,389,473 on "Network media streaming." Then, of course, there's the Apple HTTP Live Streaming Specification published in November 2009.

In this case, prior art might show both that the Helios patents weren't novel and were obvious. Certainly, with adaptive streaming it seems that the big Aha! moment relates to conceiving a system of segmented content and manifest files that enable the player to find and retrieve the segments; the rest is just implementation. However, here Long warns that both novelty and non-obvious findings are fact- and case-specific, and that the existence of prior art doesn't mean there weren't patent-worthy improvements or enhancements in the Helios patents. Along the same lines, just because Apple published part of the HLS spec in 2009 doesn't mean that later Helios patents don't contain improvements that HLS now infringes upon.

It's also worth noting that DISH networks, which owns the rights to the Move patents, has asserted them against two other companies (one settled, one pending) and that Emblaze sued Apple and lost on their patent. So even if these or other patents help invalidate the Helios patents, it doesn't mean they won't be used to sue other ABR streamers in other patent infringement cases. The bottom line is that it looks like we're going to have to pay the piper to deploy adaptive streaming, though at this point we don't know exactly who the piper is.

[This article first appeared in the November/December issue of Streaming Media magazine as "The Producer's View: All Roads Lead to ABR Royalties."]

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