Case 1:21-cv-00531-UNA Document 1 Filed 04/13/21 Page 1 of 49 PageID #: 1
`
`
`
`
`
`
`DISH TECHNOLOGIES L.L.C. and SLING
`TV L.L.C.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`
`
`
`
`
`C.A. No. ________________
`
`JURY TRIAL DEMANDED
`
`Plaintiffs,
`
`v.
`ICON HEALTH & FITNESS, INC.
`Defendant.
`
`
`
`
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiffs DISH Technologies L.L.C. and Sling TV L.L.C. (collectively, “DISH”) allege
`
`against Defendant ICON Health & Fitness, Inc. as follows:
`
`PARTIES
`
`1.
`
`Plaintiff DISH Technologies L.L.C. is a limited liability company organized and
`
`existing under the laws of the State of Colorado, with its principal place of business at 9601 South
`
`Meridian Boulevard, Englewood, Colorado 80112. It provides innovation and technology services
`
`and products to, among others, the DISH Network® satellite pay TV service operated by DISH
`
`Network L.L.C. and the Sling TV® streaming pay TV service operated by Sling TV L.L.C.
`
`2.
`
`Plaintiff Sling TV L.L.C. is a limited liability company organized and existing under
`
`the laws of the State of Colorado, with its principal place of business at 9601 South Meridian
`
`Boulevard, Englewood, Colorado 80112. It operates the Sling TV® streaming pay TV service.
`
`3.
`
`On information and belief, Defendant ICON Health & Fitness, Inc. (“ICON”) is a
`
`corporation existing under the laws of the State of Delaware, with its principal place of business
`
`at 1500 S. 1000 W Logan, UT 84321. This Defendant has appointed The Corporation Trust
`
`Company at 1209 Orange St., Wilmington DE 19801 as its agent for service of process.
`
`{01679044;v1 }
`
`1
`
`
`
`

`

`Case 1:21-cv-00531-UNA Document 1 Filed 04/13/21 Page 2 of 49 PageID #: 2
`
`
`
`4.
`
`On information and belief, ICON operates online streaming services through its iFit®
`
`software, which it provides on certain ICON fitness equipment and is made available for download
`
`through the Apple iTunes Store and Google Play store.
`
`JURISDICTION AND VENUE
`
`5.
`
`DISH asserts a claim for patent infringement against ICON arising under the patent
`
`laws of the United States, Title 35 of the United States Code. Accordingly, this Court has subject
`
`matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1338(a).
`
`6.
`
`This Court has personal jurisdiction over ICON for at least the following reasons: (1)
`
`ICON Health & Fitness, Inc. is incorporated in Delaware; (2) ICON has committed acts of patent
`
`infringement and contributed to and induced acts of patent infringement by others in this District;
`
`(3) ICON regularly does business or solicits business in this District; (4) ICON engages in other
`
`persistent courses of conduct and derives substantial revenue by its offering of infringing products
`
`and services and providing infringing products and services in this District; and (5) ICON has
`
`purposefully established substantial, systematic, and continuous contacts with this District and
`
`should reasonably expect to be subject to suit here by its offering of infringing products and
`
`services and providing infringing products and services in this District.
`
`7.
`
`Venue is proper in the District of Delaware under at least 28 U.S.C. §§ 1391(b), (c)
`
`and/or 1400(b) at least because ICON Health & Fitness, Inc. is incorporated in Delaware.
`
`Additionally, on information and belief, ICON has committed acts of infringement in the State of
`
`Delaware, including but not limited to offering products or services that infringe one or more of
`
`DISH’s asserted patents to customers located in Delaware and/or for use in Delaware.
`
`
`
`
`
`2
`
`
`
`
`
`{01679044;v1 }
`
`

`

`Case 1:21-cv-00531-UNA Document 1 Filed 04/13/21 Page 3 of 49 PageID #: 3
`
`
`
`THE ABR PATENTS
`
`On August 2, 2016, the PTO duly and lawfully issued United States Patent No.
`
`8.
`
`9,407,564 (“the ’564 Patent”), entitled “Apparatus, system, and method for adaptive-rate shifting
`
`of streaming content.” A true and correct copy of the ’564 Patent is attached as Exhibit A. Subject
`
`to the exclusive license referenced below, all rights, title, and interest in and to the ’564 Patent
`
`have been assigned to DISH Technologies L.L.C., which is the sole owner of the ’564 Patent.
`
`9.
`
`On November 5, 2019, the PTO duly and lawfully issued United States Patent No.
`
`10,469,554 (“the ’554 Patent”), entitled “Apparatus, system, and method for multi-bitrate content
`
`streaming.” A true and correct copy of the ’554 Patent is attached as Exhibit B. Subject to the
`
`exclusive license referenced below, all rights, title, and interest in and to the ’554 Patent have been
`
`assigned to DISH Technologies L.L.C., which is the sole owner of the ’554 Patent.
`
`10.
`
`On November 5, 2019, the PTO duly and lawfully issued United States Patent No.
`
`10,469,555 (“the ’555 Patent”), entitled “Apparatus, system, and method for multi-bitrate content
`
`streaming.” A true and correct copy of the ’555 Patent is attached as Exhibit C. Subject to the
`
`exclusive license referenced below, all rights, title, and interest in and to the ’555 Patent have been
`
`assigned to DISH Technologies L.L.C., which is the sole owner of the ’555 Patent.
`
`11.
`
`On August 25, 2020, the PTO duly and lawfully issued United States Patent No.
`
`10,757,156 (“the ’156 Patent”), entitled “Apparatus, system, and method for adaptive-rate shifting
`
`of streaming content.” A true and correct copy of the ’156 Patent is attached as Exhibit D. Subject
`
`to the exclusive license referenced below, all rights, title, and interest in and to the ’156 Patent
`
`have been assigned to DISH Technologies L.L.C., which is the sole owner of the ’156 Patent.
`
`12.
`
`On March 16, 2021, the PTO duly and lawfully issued United States Patent No.
`
`10,951,680 (“the ’680 Patent”), entitled “Apparatus, system, and method for multi-bitrate content
`
`{01679044;v1 }
`
`3
`
`
`
`

`

`Case 1:21-cv-00531-UNA Document 1 Filed 04/13/21 Page 4 of 49 PageID #: 4
`
`
`
`streaming.” A true and correct copy of the ’680 Patent is attached as Exhibit E. Subject to the
`
`exclusive license referenced below, all rights, title, and interest in and to the ’680 Patent have been
`
`assigned to DISH Technologies L.L.C., which is the sole owner of the ’680 Patent.
`
`13.
`
`DISH Technologies has entered into an exclusive license with Sling TV L.L.C. granting
`
`substantial rights in the above-identified patents to Sling TV L.L.C., including the right to sue
`
`thereon.
`
`14.
`
`Certain of Sling TV L.L.C.’s products and services practice one or more of the Asserted
`
`Patents. In compliance with 35 U.S.C. § 287(a), Sling TV L.L.C. marks its practicing products
`
`and requires its sublicensees to do the same.
`
`15.
`
`Additionally, certain products and services offered by DISH Technologies’ affiliate
`
`DISH Network L.L.C. (“DISH Network”) also practice the Asserted Patents. DISH Network
`
`marks its practicing products and maintains a webpage identifying a listing of patents applicable
`
`to DISH Network’s
`
`products.
`
`
`
`See
`
`Intellectual Property, DISH NETWORK,
`
`https://www.dish.com/ip/ (last visited Feb. 23, 2021).
`
`16.
`
`The claimed inventions in these patents are directed to various novel aspects and
`
`improvements to adaptive bitrate streaming (“ABR”) technology. The ’564, ’554, ’555, ’156,
`
`and ’680 Patents (collectively, “the ABR Patents”) are currently in full force and effect. The patent
`
`applications underlying the ’564 and ’156 Patents are continuations of U.S. Patent Application No.
`
`11/116,783. Each of the ’554, ’555, and ’680 Patents issued from patent applications that are
`
`continuations-in-part of U.S. Patent Application No. 11/116,783.
`
`{01679044;v1 }
`
`4
`
`
`
`

`

`Case 1:21-cv-00531-UNA Document 1 Filed 04/13/21 Page 5 of 49 PageID #: 5
`
`
`
`BACKGROUND OF THE DISPUTE
`
`MOVE IS A PIONEER OF ADAPTIVE BITRATE TECHNOLOGY
`
`17. MOVE Networks, Inc. (“MOVE”) was the original owner of the ABR Patents. MOVE
`
`invented and patented HTTP-based Adaptive Bitrate Streaming to improve the quality of streamed
`
`video content over the Internet. While at MOVE, inventors Drew Major, Mark Hurst, and later,
`
`David Brueck, (collectively, “the ABR Inventors”) observed that the Internet was fast becoming a
`
`preferred method for distributing live and recorded video to individuals even though content
`
`delivery over the Internet at the time was notoriously unreliable, expensive and inferior in quality
`
`compared to cable- and satellite-delivered content. To access video content online, users were left
`
`with two mediocre choices: (1) waiting for their content to download (which did not support
`
`immediate viewing of live content and often required the user to select the quality desired: LOW,
`
`MEDIUM, or HIGH, which in turn determined how long the user had to wait before viewing); or
`
`(2) streaming live or recorded content, which often was unreliable (pausing to “buffer”) or only
`
`worked at low-resolution.
`
`18.
`
`The ABR Inventors knew that media streaming had not reached its full potential and
`
`that, through research and improvement, it was possible that streaming could rival the quality of
`
`cable and satellite delivered content. The state-of-the-art, though was unacceptable prior to the
`
`inventions disclosed in the patents-in-suit. Often during playback, the streaming technologies did
`
`a poor job selecting the video quality / resolution that the network bandwidth and reliability could
`
`support. Most commercial systems, from companies like RealNetworks, Adobe, Microsoft, or
`
`Apple, were proprietary implementations based on public Internet standards (RTP/RTSP).
`
`Common standards notwithstanding, the proprietary implementations were mutually incompatible.
`
`They were expensive to deploy by the Content Delivery Networks (“CDNs”) and required many
`
`{01679044;v1 }
`
`5
`
`
`
`

`

`Case 1:21-cv-00531-UNA Document 1 Filed 04/13/21 Page 6 of 49 PageID #: 6
`
`
`
`servers to scale to a large number of viewers. In addition, these technologies often required custom
`
`server architectures and routing IT configurations to penetrate Internet firewalls. The ABR
`
`Inventors recognized these shortcomings as an opportunity and developed a better solution.
`
`19.
`
`The ABR Patents’ specifications detail the need for improved data transport in content
`
`streaming. Users will generally choose streaming over downloading because “they tend to want
`
`to see or hear the media files instantaneously.” ’564 Patent, Exhibit A, at col. 1, ll. 49–51.
`
`Unfortunately for protocols at the time, “[s]treaming offers the advantage of immediate access to
`
`the content but currently sacrifices quality compared with downloading a file of the same content.”
`
`See, e.g., id. col. 1, ll. 52–54. The ABR Inventors observed that “a need exists for an [invention]
`
`that alleviates the problems of reliability, efficiency, and latency” encountered in currently
`
`available content streaming systems. See, e.g., id. col. 2, ll. 39–41.
`
`20.
`
`To address these needs, the ABR Inventors came up with a novel solution: HTTP-
`
`based Adaptive Bitrate Streaming. ABR segments the full content file into smaller units
`
`(“streamlets”) in multiple bitrates and delivers them over HTTP / TCP, the underlying protocols
`
`used for reliably transmitting data over the Internet. The ABR Inventors’ approach enables content
`
`delivery to adapt to the bandwidth available at any particular time, ensuring delivery of the highest
`
`possible quality content throughout the course of the stream. The playback client device
`
`continuously observes the quality of a user’s network connection and adjusts the requested quality
`
`of the streamed content. The other RTP/RTSP-based technologies used a client / server
`
`architecture, where the server determined the bitrate to send to the client. The other technologies
`
`also did not segment the content, usually delivering it as a continuous stream of bits or as a single
`
`large file. Segmenting the content allows the playback device to easily change bitrates. The result
`
`{01679044;v1 }
`
`6
`
`
`
`

`

`Case 1:21-cv-00531-UNA Document 1 Filed 04/13/21 Page 7 of 49 PageID #: 7
`
`
`
`is that today, MOVE’s patented ABR technology allows Internet users to stream content from
`
`across the world in real time at the highest possible quality.
`
`21.
`
`The ABR Patents’ specifications describe how the MOVE inventors significantly
`
`improved the functionality of computer devices used to stream content data over a network: “[A]
`
`need exists for an apparatus, system, and method that alleviate the problems of reliability,
`
`efficiency, and latency [during data transport streaming over a network]. Additionally, such an
`
`apparatus, system, and method would offer instantaneous viewing along with the ability to fast
`
`forward, rewind, direct seek, and browse multiple streams.” See, e.g., id. col. 2, ll. 39–44. The
`
`claims of the ABR Patents embody these improvements by providing a particular solution to these
`
`problems. The ABR Patents’ specifications explain that “[t]he present invention has been
`
`developed in response to the present state of the art, and in particular, in response to the problems
`
`and needs in the art that have not yet been fully solved by currently available content streaming
`
`systems.” See, e.g., id. col. 2, ll. 52–55. Thus, the specifications explain “the present invention
`
`has been developed to provide an apparatus, system, and method for adaptive-rate content
`
`streaming that overcome many or all of the above-discussed shortcomings in the art.” See, e.g.,
`
`id. col. 2, ll. 56–59. The claims of the ABR Patents include numerous unconventional and
`
`revolutionary elements that, taken as a whole, provide this solution that improves the functionality
`
`of computer devices used to stream content data over a network.
`
`22.
`
`One unconventional but fundamental improvement found in the claims of the ABR
`
`Patents is the creation of sets of streamlets from the original large content file, where a plurality of
`
`streamlets in each set are aligned by starting time and duration (typically a few seconds) but have
`
`different bitrates. By segmenting and then encoding the streamlets, the claims of the ABR Patent
`
`allow for contiguous playback of the streamlets that independently yields playback of the full
`
`{01679044;v1 }
`
`7
`
`
`
`

`

`Case 1:21-cv-00531-UNA Document 1 Filed 04/13/21 Page 8 of 49 PageID #: 8
`
`
`
`content. The common alignment of the streamlets in each set allows a playback device to select
`
`one quality of streamlet from a particular set, and, as needed to adjust for changing bandwidth
`
`resources, to select a different quality of streamlet from the subsequent set. When the bandwidth
`
`of the user’s network is constrained, the client can select a lower bitrate to maintain playback
`
`continuity instead of “buffering.” By using streamlets, the claims of the ABR Patents eliminate
`
`the need for users to download the full content file before beginning playback, thereby offering
`
`instantaneous viewing along with the ability to fast forward, rewind, direct seek, and browse
`
`multiple streams. Additionally, segmenting the media into streamlets as required by the claims of
`
`the ABR Patents enables users to retrieve and enjoy content at the most appropriate bitrate possible
`
`as the media is streamed, thereby reducing latency and improving the reliability and efficiency of
`
`computer devices used to stream content data over a network. It is also well suited for live stream
`
`playback.
`
`23.
`
`Another non-routine and revolutionary improvement found in the claims of the ABR
`
`Patents is that the client controls switching between different bitrates. The benefits of using an
`
`intelligent client to make the decisions and switch between different bitrate streamlets are two-
`
`fold. First, the claims of the ABR Patents reduce latency and improve the efficiency of computer
`
`devices used to stream content data over a network because the client is in a better position to
`
`determine the appropriate streamlet by measuring the actual throughput of the network at its point
`
`of reception. Second, the claims of the ABR Patents improve the reliability and efficiency of
`
`computer devices used to stream content data over a network because moving the decision-making
`
`to the client effectively eliminates the need for a customized video server. Instead, a standard web
`
`server can be employed to host all the content’s streamlets. Streamlets may be requested by a
`
`client using the standard HTTP/TCP protocol—the web standard upon which the Internet is built.
`
`{01679044;v1 }
`
`8
`
`
`
`

`

`Case 1:21-cv-00531-UNA Document 1 Filed 04/13/21 Page 9 of 49 PageID #: 9
`
`
`
`Shifting control of switching between different bitrates to the clients allows for access to the
`
`segmented content that can be scaled exponentially through the use of standardized web caches.
`
`These benefits also allow for a vast reduction in operating and publishing costs. Thus, the claims
`
`of the ABR Patents provide a reliable and efficient solution that improves the functioning of
`
`computer devices used to stream content data while reducing overall latency and network
`
`congestion.
`
`24.
`
`The ABR Inventors’ improvements to streaming succeeded where others tried and
`
`failed. During the late 1990s, established streaming companies, including RealNetworks, Adobe,
`
`Microsoft, and Apple, separately attempted to develop a successful multiple bitrate streaming
`
`platform by using proprietary implementations of the RTP/RTSP standards. None of these systems
`
`succeeded at making bitrate switching consistent and none actually worked over the Internet.
`
`25.
`
`The unconventional and revolutionary improvements embodied by the claims of the
`
`ABR Patents were also recognized by numerous industry leaders and commentators. For example,
`
`Forbes explained that Move Networks was “at the forefront of [the] next evolution” of media
`
`streaming. Exhibit 1. Forbes explained that the technology covered by the ABR Patents “breaks
`
`up the video into bits and efficiently reorganizes them over the network so there’s no need for the
`
`special computer servers and dedicated transmission lines.” Id. Move Networks was identified as
`
`a member of the Red Herring 100 in 2007. Exhibit 2. Industry leaders “have regarded the Red
`
`Herring 100 lists as an invaluable instrument to discover and advocate the promising startups that
`
`will lead the next wave of disruption and innovation.” Exhibit 3. Similarly, Move Networks was
`
`also named as a member of the OnHollywood 100 in 2007. Exhibit 4. The list is curated by
`
`AlwaysOn to “introduce a new generation of game-changing players in the digital entertainment
`
`space.” Id. Move Networks was also nominated as a finalist in the 2007 Crunchies for the “Best
`
`{01679044;v1 }
`
`9
`
`
`
`

`

`Case 1:21-cv-00531-UNA Document 1 Filed 04/13/21 Page 10 of 49 PageID #: 10
`
`
`
`Technology Innovation / Achievement” category by GigaOm, Read/WriteWeb, VentureBeat, and
`
`TechCrunch. Exhibit 5.
`
`ABR PATENTS SELL FOR $45 MILLION
`
`26.
`
`In December of 2010, EchoStar Advanced Technologies L.L.C., then a wholly owned
`
`subsidiary of EchoStar Corporation, spent $45 million to acquire MOVE and its ABR Patent
`
`portfolio. Recognizing the ingenuity of MOVE’s ABR technology and the value-added for its
`
`customers and their increasing interest in quality online content delivery, DISH affiliate DISH
`
`Digital Holding L.L.C. acquired EchoStar Advanced Technologies L.L.C. in connection with a
`
`joint venture with EchoStar Corporation in 2012. EchoStar Advanced Technologies L.L.C., which
`
`was later renamed DISH Digital L.L.C., transferred the ABR Patents to EchoStar Technologies
`
`L.L.C. (a subsidiary of EchoStar Corporation) in 2014. In February 2017, EchoStar Technologies
`
`L.L.C. became a subsidiary of DISH Network L.L.C., and in February 2018, was renamed DISH
`
`Technologies L.L.C.
`
`27.
`
`DISH and its affiliated companies are a leading provider of Internet streaming services.
`
`It is a leading investor and innovator in infrastructure and technologies that will meet the
`
`personalized needs of its increasingly diverse pool of customers. Since its founding, DISH and its
`
`affiliated companies have invested millions in research and development and acquisition of novel
`
`technologies that will resolve long-felt problems and needs across its industry.
`
`28.
`
`As the public continues to increasingly rely on the Internet for its informational and
`
`entertainment needs, one such problem into which DISH and its affiliated companies have
`
`dedicated great time and resources is improving the quality of streaming media. The specific
`
`entities that implement and own the technology covered by MOVE’s patent portfolio have
`
`{01679044;v1 }
`
`10
`
`
`
`

`

`Case 1:21-cv-00531-UNA Document 1 Filed 04/13/21 Page 11 of 49 PageID #: 11
`
`
`
`undergone significant evolution as these entities continue to improve upon ABR and advance
`
`reliable delivery of high-resolution content over the Internet.
`
`29.
`
`DISH’s recent investments in ABR have already proven a success. Sling TV L.L.C. is
`
`DISH and its affiliated companies’ main Internet-delivered content provider, offering
`
`programming to numerous Internet streaming devices. Since the launch of Sling TV in the
`
`beginning of 2015, Sling TV has grown to over 2.474 million subscribers, who are now receiving
`
`a live TV video experience comparable to cable or satellite.
`
`ICON’S PRODUCTS AND SERVICES INFRINGE THE ABR PATENTS
`
`30.
`
`ICON has been and is now directly infringing and/or indirectly infringing the ABR
`
`Patents.
`
`31.
`
`On information and belief, ICON is a distributor of live and on-demand content via the
`
`Internet. Exhibit 6 at 1. ICON makes, uses, sells, and offers for sale in the United States products
`
`and services that infringe the ABR Patents, and continues to do so. These infringing products and
`
`services include online streaming services operated by ICON, including the iFit software and
`
`ICON Equipment (e.g., stationary bikes, treadmills, elliptical trainers, strength trainers, rowing
`
`machines, and flat-panel fitness devices) (collectively, “the Accused Streaming Services”).
`
`32.
`
`ICON makes the Accused Streaming Services available on standalone devices, as well
`
`as on certain fitness equipment sold by ICON through its fitness brands NordicTrack, ProForm
`
`and Freemotion:
`
`{01679044;v1 }
`
`11
`
`
`
`

`

`Case 1:21-cv-00531-UNA Document 1 Filed 04/13/21 Page 12 of 49 PageID #: 12
`
`
`
`
`
`
`
`IFIT, https://www.ifit.com/ (last visited Apr. 4, 2021) (“iFit Homepage”).
`
`
`
`Id.; see also Exhibit 7 at 2 (“iFit comes on a variety of fitness equipment, including treadmills,
`
`bikes, ellipticals, rowers, and strength machines. We can be found built into brands like
`
`NordicTrack, ProForm, and Freemotion. You can also view and complete workouts on your phone
`
`or tablet using the iFit app on any equipment or with no equipment at all.”). Notably, ICON
`
`markets itself as “the only company which creates a connected fitness experience across multiple
`
`brands, multiple product categories and all consumer fitness segments.” Exhibit 6 at 1. On
`
`information and belief, ICON is the importer of record for all fitness equipment sold under the
`
`{01679044;v1 }
`
`12
`
`
`
`

`

`Case 1:21-cv-00531-UNA Document 1 Filed 04/13/21 Page 13 of 49 PageID #: 13
`
`
`
`NordicTrack, ProForm, and FreeMotion brands. The Accused Streaming Services include, but are
`
`not limited to, the following ICON equipment:
`
`Equipment Type
`
`Stationary Bikes
`
`Treadmills
`
`Elliptical Trainers
`
`Strength Trainers
`
`Rowing Machines
`
`Flat Panel Fitness
`Devices
`
`ICON Equipment
`ProForm Studio Bike Pro
`ProForm Studio Bike Pro 22
`FreeMotion r22.9
`FreeMotion u22.9
`FreeMotion Coachbike
`NordicTrack Commercial S15i
`NordicTrack Commercial S22i
`NordicTrack Commercial VR25
`NordicTrack Commercial R35
`NordicTrack Commercial VU 19
`NordicTrack Commercial VU 29
`ProForm Carbon T7
`ProForm Carbon T10
`ProForm Pro 2000
`ProForm Pro 9000
`FreeMotion i22.9
`FreeMotion t22.9
`NordicTrack X22i
`NordicTrack X32i
`NordicTrack Commercial 1750
`NordicTrack Commercial 2450
`NordicTrack Commercial 2950
`NordicTrack EXP 7i
`NordicTrack EXP10i
`NordicTrack T 6.5 Si
`ProForm Carbon E7
`ProForm Pro E14
`FreeMotion e22.9 Elliptical
`NordicTrack FS10i
`NordicTrack FS14i
`NordicTrack Commercial 9.9
`NordicTrack Commercial 14.9
`NordicTrack SpaceSaver SE9i
`ProForm Carbon HIIT H7
`ProForm Pro HIIT H14
`NordicTrack Fusion CST
`NordicTrack Fusion CST Pro
`ProForm R10
`NordicTrack RW600
`NordicTrack RW700
`NordicTrack RW900
`ProForm Vue
`NordicTrack Vault (complete)
`NordicTrack Vault (standalone)
`
`
`
`{01679044;v1 }
`
`13
`
`
`
`

`

`Case 1:21-cv-00531-UNA Document 1 Filed 04/13/21 Page 14 of 49 PageID #: 14
`
`
`
`33.
`
`On information and belief, the vast majority of all fitness equipment sold by ICON is
`
`enabled with iFit software. Exhibit 8 at 1 (quoting ICON chairman and CEO Scott Watterson,
`
`“Virtually all our products sold are connected fitness, this is no longer a trend.”).
`
`34.
`
`The Accused Streaming Services are defined by an integrated experience of hardware,
`
`software, and content. For example, an ICON press release states that “iFit’s proprietary streaming
`
`technology allows a multi-faceted interaction between the user, their iFit trainer and their smart
`
`machine. iFit seamlessly adjusts . . . iFit-enabled machines in sync with interactive trainer-led
`
`streaming workouts shot on location around the world.” Exhibit 9 at 1.
`
`35.
`
`ICON’s implementation of such “proprietary” streaming technology has been further
`
`fueled by a $200 million dollar investment led by Pamplona Capital Management which will
`
`“allow iFit to further accelerate its rapidly growing interactive fitness platform in the connected
`
`home and club fitness industries. [ICON] will dramatically expand consumer awareness, broaden
`
`the most expansive library of interactive fitness content in the world, and continue to invest in
`
`innovation and technology that truly enhances our customers’ fitness experience.” Id.
`
`36.
`
`ICON chairman and CEO Scott Watterson recognizes iFit as “the leader in streaming
`
`fitness technology” and has noted that the ability to stream workouts using ICON’s iFit software
`
`has made fitness more affordable and accessible. Exhibit 10 at 2; see also Exhibit 11 at 2 (“We
`
`look forward to bringing iFit workouts to the masses. Regardless of their equipment type, iFit
`
`workouts can now take anyone’s exercise experience to an entirely new level.”).
`
`37.
`
`On information and belief, the Accused Streaming Services provide an “interactive
`
`fitness streaming platform” which “delivers beautiful global workouts, high-energy studio classes,
`
`and the best personal trainers right to [a user’s] machine.” Exhibit 9; Exhibit 12. An example of
`
`a fitness class available for streaming through iFit is shown below:
`
`{01679044;v1 }
`
`14
`
`
`
`

`

`Case 1:21-cv-00531-UNA Document 1 Filed 04/13/21 Page 15 of 49 PageID #: 15
`
`
`
`
`
`
`
`CLAIMS FOR RELIEF
`COUNT I: INFRINGEMENT OF U.S. PATENT NO. 9,407,564
`
`DIRECT INFRINGEMENT
`
`38.
`
`DISH re-alleges and incorporates herein by reference the allegations contained in
`
`Paragraphs 1–37 of the Complaint as if fully set forth herein.
`
`39.
`
`On information and belief, ICON directly infringes, literally and/or under the doctrine
`
`of equivalents, at least claim 8 of the ’564 Patent, which recites:
`
`A method executable by an end user station to present rate-adaptive streams
`received via at least one transmission control protocol (TCP) connection with a
`server over a network, the method comprising;
`
`streaming, by a media player operating on the end user station, a video from the
`server via the at least one TCP connection over the network, wherein multiple
`different copies of the video encoded at different bit rates are stored as multiple sets
`of files on the server, wherein each of the files yields a different portion of the video
`on playback, wherein the files across the different copies yield the same portions of
`the video on playback, and wherein each of the files comprises a time index such
`
`{01679044;v1 }
`
`15
`
`
`
`

`

`Case 1:21-cv-00531-UNA Document 1 Filed 04/13/21 Page 16 of 49 PageID #: 16
`
`
`
`that the files whose playback is the same portion of the video for each of the
`different copies have the same time index in relation to the beginning of the video,
`and wherein the streaming comprises:
`
`requesting by the media player a plurality of sequential files of one of the copies
`from the server based on the time indexes;
`
`automatically requesting by the media player from the server subsequent portions
`of the video by requesting for each such portion one of the files from one of the
`copies dependent upon successive determinations by the media player to shift the
`playback quality to a higher or lower quality one of the different copies, the
`automatically requesting including repeatedly generating a factor indicative of the
`current ability to sustain the streaming of the video using the files from different
`ones of the copies, wherein the factor relates to the performance of the network;
`and
`
`making the successive determinations to shift the playback quality based on the
`factor to achieve continuous playback of the video using the files of the highest
`quality one of the copies determined sustainable at that time, wherein the making
`the successive determinations to shift comprises upshifting to a higher quality one
`of the different copies when the at least one factor is greater than a first threshold
`and downshifting to a lower quality one of the different copies when the at least
`one factor is less than a second threshold; and
`
`presenting the video by playing back the requested media files with the media
`player on the end user station in order of ascending playback time.
`40.
`
`The Accused Streaming Services receive segments of selected video program for
`
`playback of programming over a network connection. The Accused Streaming Services adapt
`
`their requests for segments from a set of segments with the same content but varying quality based
`
`upon the quality of the network connection. Exhibit A-1 to this Complaint is a claim chart with a
`
`more detailed infringement analysis of the Accused Streaming Services.1
`
`41.
`
`On information and belief, ICON possesses knowledge of, and is aware of, the ’564
`
`Patent, or became aware of this patent at the time of filing this lawsuit.
`
`
`1. DISH notes that Exhibit A-1 and Exhibits B-1, C-1, D-1, and E-1, see infra, are based
`exclusively on publicly available information, and without the benefit of any Court claim
`construction. Accordingly, for each Count below, DISH reserves the right to supplement, amend
`or modify the analysis as warranted in light of additional facts, claim construction, or other
`developments. DISH further reserves the right to add additional claims as the case progresses.
`
`{01679044;v1 }
`
`16
`
`
`
`

`

`Case 1:21-cv-00531-UNA Document 1 Filed 04/13/21 Page 17 of 49 PageID #: 17
`
`
`
`42.
`
`ICON’s acts of infringement have injured and damaged DISH and will continue to
`
`injure and damage DISH.
`
`43.
`
`ICON’s actions have caused DISH to suffer irreparable harm resulting from the loss of
`
`its lawful patent rights and the loss of its ability to exclude others from the market. Upon
`
`information and belief, ICON will continue these infringing acts unless enjoined by this court.
`
`INDIRECT INFRINGEMENT
`
`44.
`
`DISH re-alleges and incorporates herein by reference the allegations contained in
`
`Paragraphs 1–43 of the Complaint as if fully set forth herein.
`
`45.
`
`On information and belief, ICON indirectly infringes, literally and/or under the doctrine
`
`of equivalents, at least claim 8 of the ’564 Patent, which recites:
`
`A method executable by an end user station to present rate-adaptive streams
`received via at least one transmission control protocol (TCP) connection with a
`server over a network, the method comprising;
`
`streaming, by a media player operating on the end user station, a video from the
`server via the at least one TCP connection over the network, wherein multiple
`different copies of the video encoded at different bit rates are stored as multiple sets
`of files on the server, wherein each of the files yields a different portion of the video
`on playback, wherein the files across the different copies