Case 1:21-cv-00532-UNA Document 1 Filed 04/13/21 Page 1 of 51 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`DISH TECHNOLOGIES L.L.C. and SLING
`TV L.L.C.
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`Plaintiffs,
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`v.
`LULULEMON ATHLETICA INC. and
`CURIOUSER PRODUCTS INC. (d/b/a
`MIRROR)
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`C.A. No. ________________
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`JURY TRIAL DEMANDED
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`Defendant.
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`COMPLAINT FOR PATENT INFRINGEMENT
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`Plaintiffs DISH Technologies L.L.C. and Sling TV L.L.C. (collectively, “DISH”) allege
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`against Defendants lululemon athletica inc. and Curiouser Products Inc. (d/b/a MIRROR)
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`(collectively, “Defendants”) as follows:
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`PARTIES
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`1.
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`Plaintiff DISH Technologies L.L.C. is a limited liability company organized and
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`existing under the laws of the State of Colorado, with its principal place of business at 9601 South
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`Meridian Boulevard, Englewood, Colorado 80112. It provides innovation and technology services
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`and products to, among others, the DISH Network® satellite pay TV service operated by DISH
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`Network L.L.C. and the Sling TV® streaming pay TV service operated by Sling TV L.L.C.
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`2.
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`Plaintiff Sling TV L.L.C. is a limited liability company organized and existing under
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`the laws of the State of Colorado, with its principal place of business at 9601 South Meridian
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`Boulevard, Englewood, Colorado 80112. It operates the Sling TV® streaming pay TV service.
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`3.
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`On information and belief, Defendant lululemon athletica inc. (“lululemon”) is a
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`corporation existing under the laws of the State of Delaware, with its principal place of business
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`at 1818 Cornwall Avenue, Vancouver, British Columbia V6J 1C7. lululemon athletica has
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`appointed The Corporation Trust Company at 1209 Orange St., Wilmington DE 19801 as its agent
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`for service of process.
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`4.
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`On information and belief, Defendant MIRROR is a corporation existing under the
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`laws of the State of Delaware, with its principal place of business at 1261 Broadway #208, New
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`York, New York 10001. MIRROR has appointed The Corporation Trust Company at 1209 Orange
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`St., Wilmington DE 19801 as its agent for service of process.
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`5.
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`In June 2020, Defendant lululemon announced its intention to acquire Defendant
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`MIRROR for $500 million. Exhibit 1. As recognized by lululemon and MIRROR, the potential
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`acquisition provided synergistic opportunities for both companies. For example, such acquisition
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`would facilitate expansion of the “content creation partnership” which brought lululemon “sweat
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`and meditation classes to the MIRROR platform.” Id. As another example, such acquisition would
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`enable MIRROR to “strengthen its position and accelerate its growth” by leveraging lululemon’s
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`infrastructure “including its store network and ecommerce channels.” Id.; see also Exhibit 2 at 10
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`(noting that lululemon could bring, as a benefit to MIRROR, the opportunity to “leverage
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`distribution channels to scale growth”).
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`6.
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`lululemon completed the acquisition of MIRROR on July 7, 2020, with MIRROR
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`surviving the acquisition as a wholly-owned subsidiary of lululemon. Exhibit 3 at 2; Exhibit 4 at
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`9.
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`7.
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`On information and belief, Defendants operate online streaming services through the
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`Mirror Application and a flat panel fitness device marketed and sold as the “Mirror.” The Mirror
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`is a “nearly invisible home gym” that allows users to stream live and on-demand workouts on an
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`immersive display. Exhibit 5; see also Exhibit 6; Exhibit 7.
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`JURISDICTION AND VENUE
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`8.
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`DISH asserts a claim for patent infringement against lululemon and MIRROR arising
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`under the patent laws of the United States, Title 35 of the United States Code. Accordingly, this
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`Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1338(a).
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`9.
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`This Court has personal jurisdiction over lululemon for at least the following reasons:
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`(1) lululemon athletica inc. is incorporated in Delaware; (2) lululemon has committed acts of
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`patent infringement and contributed to and induced acts of patent infringement by others in this
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`District; (3) lululemon regularly does business or solicits business in this District; (4) lululemon
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`engages in other persistent courses of conduct and derives substantial revenue by its offering of
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`infringing products and services and providing infringing products and services in this District;
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`and (5) lululemon has purposefully established substantial, systematic, and continuous contacts
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`with this District and should reasonably expect to subject to suit here by its offering of infringing
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`products and services and providing infringing products and services in this District.
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`10.
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`This Court has personal jurisdiction over MIRROR for at least the following reasons:
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`(1) Curiouser Products, Inc. is incorporated in Delaware; (2) MIRROR has committed acts of
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`patent infringement and contributed to and induced acts of patent infringement by others in this
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`District; (3) MIRROR regularly does business or solicits business in this District; (4) MIRROR
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`engages in other persistent courses of conduct and derives substantial revenue by its offering of
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`infringing products and services and providing infringing products and services in this District;
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`and (5) MIRROR has purposefully established substantial, systematic, and continuous contacts
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`with this District and should reasonably expect to be subject to suit here by its offering of infringing
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`products and services and providing infringing products and services in this District.
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`11.
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`Venue is proper in the District of Delaware under at least 28 U.S.C. §§ 1391(b), (c)
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`and/or 1400(b) at least because both lululemon athletica inc. and Curiouser Products, Inc. are
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`incorporated in Delaware. Additionally, on information and belief, lululemon and MIRROR have
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`committed acts of infringement in the State of Delaware, including but not limited to offering
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`products or services that infringe one or more of DISH’s asserted patents to customers located in
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`Delaware and/or for use in Delaware.
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`THE ABR PATENTS
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`On August 2, 2016, the PTO duly and lawfully issued United States Patent No.
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`12.
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`9,407,564 (“the ’564 Patent”), entitled “Apparatus, system, and method for adaptive-rate shifting
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`of streaming content.” A true and correct copy of the ’564 Patent is attached as Exhibit A. Subject
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`to the exclusive license referenced below, all rights, title, and interest in and to the ’564 Patent
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`have been assigned to DISH Technologies L.L.C., which is the sole owner of the ’564 Patent.
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`13.
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`On November 5, 2019, the PTO duly and lawfully issued United States Patent No.
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`10,469,554 (“the ’554 Patent”), entitled “Apparatus, system, and method for multi-bitrate content
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`streaming.” A true and correct copy of the ’554 Patent is attached as Exhibit B. Subject to the
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`exclusive license referenced below, all rights, title, and interest in and to the ’554 Patent have been
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`assigned to DISH Technologies L.L.C., which is the sole owner of the ’554 Patent.
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`14.
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`On November 5, 2019, the PTO duly and lawfully issued United States Patent No.
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`10,469,555 (“the ’555 Patent”), entitled “Apparatus, system, and method for multi-bitrate content
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`streaming.” A true and correct copy of the ’555 Patent is attached as Exhibit C. Subject to the
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`exclusive license referenced below, all rights, title, and interest in and to the ’555 Patent have been
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`assigned to DISH Technologies L.L.C., which is the sole owner of the ’555 Patent.
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`15.
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`On March 19, 2013, the PTO duly and lawfully issued United States Patent No.
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`10,757,156 (“the ’156 Patent”), entitled “Apparatus, system, and method for multi-bitrate content
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`streaming.” A true and correct copy of the ’156 Patent is attached as Exhibit D. Subject to the
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`exclusive license referenced below, all rights, title, and interest in and to the ’156 Patent have been
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`assigned to DISH Technologies L.L.C., which is the sole owner of the ’156 Patent.
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`16.
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`On March 16, 2021, the PTO duly and lawfully issued United States Patent No.
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`10,951,680 (“the ’680 Patent”), entitled “Apparatus, system, and method for multi-bitrate content
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`streaming.” A true and correct copy of the ’680 Patent is attached as Exhibit E. Subject to the
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`exclusive license referenced below, all rights, title, and interest in and to the ’680 Patent have been
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`assigned to DISH Technologies L.L.C., which is the sole owner of the ’680 Patent.
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`17.
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`DISH Technologies has entered into an exclusive license with Sling TV L.L.C. granting
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`substantial rights in the above-identified patents to Sling TV L.L.C., including the right to sue
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`thereon.
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`18.
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`Certain of Sling TV L.L.C.’s products and services practice one or more of the Asserted
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`Patents. In compliance with 35 U.S.C. § 287(a), Sling TV L.L.C. marks its practicing products
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`and requires its sublicensees to do the same.
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`19.
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`Additionally, certain products and services offered by DISH Technologies’ affiliate
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`DISH Network L.L.C. (“DISH Network”) also practice the Asserted Patents. DISH Network
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`marks its practicing products and maintains a webpage identifying a listing of patents applicable
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`to DISH Network’s
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`products.
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`See
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`Intellectual Property, DISH NETWORK,
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`https://www.dish.com/ip/ (last visited Feb. 23, 2021).
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`20.
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`The claimed inventions in these patents are directed to various novel aspects and
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`improvements to adaptive bitrate streaming (“ABR”) technology. The ’564, ’554, ’555, ’156,
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`and ’680 Patents (collectively, “the ABR Patents”) are currently in full force and effect. The patent
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`applications underlying the ’564 and ’156 Patents are continuations of U.S. Patent Application No.
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`11/116,783. Each of the ’554, ’555, ’156, and ’680 Patents issued from patent applications that
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`are continuations-in-part of U.S. Patent Application No. 11/116,783.
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`BACKGROUND OF THE DISPUTE
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`MOVE IS A PIONEER OF ADAPTIVE BITRATE TECHNOLOGY
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`21. MOVE Networks, Inc. (“MOVE”) was the original owner of the ABR Patents. MOVE
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`invented and patented HTTP-based Adaptive Bitrate Streaming to improve the quality of streamed
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`video content over the Internet. While at MOVE, inventors Drew Major, Mark Hurst, and later,
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`David Brueck, (collectively, “the ABR Inventors”) observed that the Internet was fast becoming a
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`preferred method for distributing live and recorded video to individuals even though content
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`delivery over the Internet at the time was notoriously unreliable, expensive and inferior in quality
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`compared to cable- and satellite-delivered content. To access video content online, users were left
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`with two mediocre choices: (1) waiting for their content to download (which did not support
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`immediate viewing of live content and often required the user to select the quality desired: LOW,
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`MEDIUM, or HIGH, which in turn determined how long the user had to wait before viewing); or
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`(2) streaming live or recorded content, which often was unreliable (pausing to “buffer”) or only
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`worked at low-resolution.
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`22.
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`The ABR Inventors knew that media streaming had not reached its full potential and
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`that, through research and improvement, it was possible that streaming could rival the quality of
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`cable and satellite delivered content. The state-of-the-art, however, was unacceptable prior to the
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`inventions disclosed in the patents-in-suit. Often during playback, the streaming technologies did
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`a poor job selecting the video quality / resolution that the network bandwidth and reliability could
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`support. Most commercial systems, from companies like RealNetworks, Adobe, Microsoft, or
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`Apple, were proprietary implementations based on public Internet standards (RTP/RTSP).
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`Common standards notwithstanding, the proprietary implementations were mutually incompatible.
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`They were expensive to deploy by the Content Delivery Networks (“CDNs”) and required many
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`servers to scale to a large number of viewers. In addition, these technologies often required custom
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`server architectures and routing IT configurations to penetrate Internet firewalls. The ABR
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`Inventors recognized these shortcomings as an opportunity and developed a better solution.
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`23.
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`The ABR Patents’ specifications detail the need for improved data transport in content
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`streaming. Users will generally choose streaming over downloading because “they tend to want
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`to see or hear the media files instantaneously.” See, e.g., ’564 Patent, Exhibit A, at col. 1, ll. 49–
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`51. Unfortunately for protocols at the time, “[s]treaming offers the advantage of immediate access
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`to the content but currently sacrifices quality compared with downloading a file of the same
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`content.” See, e.g., id. col. 1, ll. 52–54. The ABR Inventors observed that “a need exists for an
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`[invention] that alleviates the problems of reliability, efficiency, and latency” encountered in
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`currently available content streaming systems. See, e.g., id. col. 2, ll. 39–41.
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`24.
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`To address these needs, the ABR Inventors came up with a novel solution: HTTP-
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`based Adaptive Bitrate Streaming. ABR segments the full content file into smaller units
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`(“streamlets”) in multiple bitrates and delivers them over HTTP / TCP, the underlying protocols
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`used for reliably transmitting data over the Internet. The ABR Inventors’ approach enables content
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`delivery to adapt to the bandwidth available at any particular time, ensuring delivery of the highest
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`possible quality content throughout the course of the stream. The playback client device
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`continuously observes the quality of a user’s network connection and adjusts the requested quality
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`of the streamed content. The other RTP/RTSP-based technologies used a client / server
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`architecture, where the server determined the bitrate to send to the client. The other technologies
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`also did not segment the content, usually delivering it as a continuous stream of bits or as a single
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`large file. Segmenting the content allows the playback device to easily change bitrates. The result
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`is that today, MOVE’s patented ABR technology allows Internet users to stream content from
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`across the world in real time at the highest possible quality.
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`25.
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`The ABR Patents’ specifications describe how the MOVE inventors significantly
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`improved the functionality of computer devices used to stream content data over a network: “[A]
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`need exists for an apparatus, system, and method that alleviate the problems of reliability,
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`efficiency, and latency [during data transport streaming over a network]. Additionally, such an
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`apparatus, system, and method would offer instantaneous viewing along with the ability to fast
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`forward, rewind, direct seek, and browse multiple streams.” See, e.g., id. col. 2, ll. 39–44. The
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`claims of the ABR Patents embody these improvements by providing a particular solution to these
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`problems. The ABR Patents’ specifications explain that “[t]he present invention has been
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`developed in response to the present state of the art, and in particular, in response to the problems
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`and needs in the art that have not yet been fully solved by currently available content streaming
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`systems. See, e.g., id. col. 2, ll. 52–55. Thus, the specifications explain “the present invention has
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`been developed to provide an apparatus, system, and method for adaptive-rate content streaming
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`that overcome many or all of the above-discussed shortcomings in the art.” See, e.g., id. col. 2, ll.
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`56–59. The claims of the ABR Patents include numerous unconventional and revolutionary
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`elements that, taken as a whole, provide this solution that improves the functionality of computer
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`devices used to stream content data over a network.
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`26.
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`One unconventional but fundamental improvement found in the claims of the ABR
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`Patents is the creation of sets of streamlets from the original large content file, where a plurality of
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`streamlets in each set are aligned by starting time and duration (typically a few seconds) but have
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`different bitrates. By segmenting and then encoding the streamlets, the claims of the ABR Patent
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`allow for contiguous playback of the streamlets that independently yields playback of the full
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`content. The common alignment of the streamlets in each set allows a playback device to select
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`one quality of streamlet from a particular set, and, as needed to adjust for changing bandwidth
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`resources, to select a different quality of streamlet from the subsequent set. When the bandwidth
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`of the user’s network is constrained, the client can select a lower bitrate to maintain playback
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`continuity instead of “buffering.” By using streamlets, the claims of the ABR Patents eliminate
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`the need for users to download the full content file before beginning playback, thereby offering
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`instantaneous viewing along with the ability to fast forward, rewind, direct seek, and browse
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`multiple streams. Additionally, segmenting the media into streamlets as required by the claims of
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`the ABR Patents enables users to retrieve and enjoy content at the most appropriate bitrate possible
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`as the media is streamed, thereby reducing latency and improving the reliability and efficiency of
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`computer devices used to stream content data over a network. It is also well suited for live stream
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`playback.
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`27.
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`Another non-routine and revolutionary improvement found in the claims of the ABR
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`Patents is that the client controls switching between different bitrates. The benefits of using an
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`intelligent client to make the decisions and switch between different bitrate streamlets are two-
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`fold. First, the claims of the ABR Patents reduce latency and improve the efficiency of computer
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`devices used to stream content data over a network because the client is in a better position to
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`determine the appropriate streamlet by measuring the actual throughput of the network at its point
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`of reception. Second, the claims of the ABR Patents improve the reliability and efficiency of
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`computer devices used to stream content data over a network because moving the decision-making
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`to the client effectively eliminates the need for a customized video server. Instead, a standard web
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`server can be employed to host all the content’s streamlets. Streamlets may be requested by a
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`client using the standard HTTP/TCP protocol—the web standard upon which the Internet is built.
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`Shifting control of switching between different bitrates to the clients allows for access to the
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`segmented content that can be scaled exponentially through the use of standardized web caches.
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`These benefits also allow for a vast reduction in operating and publishing costs. Thus, the claims
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`of the ABR Patents provide a reliable and efficient solution that improves the functioning of
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`computer devices used to stream content data while reducing overall latency and network
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`congestion.
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`28.
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`The ABR Inventors’ improvements to streaming succeeded where others tried and
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`failed. During the late 1990s, established streaming companies, including RealNetworks, Adobe,
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`Microsoft, and Apple, separately attempted to develop a successful multiple bitrate streaming
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`platform by using proprietary implementations of the RTP/RTSP standards. None of these systems
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`succeeded at making bitrate switching consistent and none actually worked over the Internet.
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`29.
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`The unconventional and revolutionary improvements embodied by the claims of the
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`ABR Patents were also recognized by numerous industry leaders and commentators. For example,
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`Forbes explained that Move Networks was “at the forefront of [the] next evolution” of media
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`streaming. Exhibit 8. Forbes explained that the technology covered by the ABR Patents “breaks
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`up the video into bits and efficiently reorganizes them over the network so there’s no need for the
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`special computer servers and dedicated transmission lines.” Id. Move Networks was identified as
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`a member of the Red Herring 100 in 2007. Exhibit 9. Industry leaders “have regarded the Red
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`Herring 100 lists as an invaluable instrument to discover and advocate the promising startups that
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`will lead the next wave of disruption and innovation.” Exhibit 10. Similarly, Move Networks was
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`also named as a member of the OnHollywood 100 in 2007. Exhibit 11. The list is curated by
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`AlwaysOn to “introduce a new generation of game-changing players in the digital entertainment
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`space.” Id. Move Networks was also nominated as a finalist in the 2007 Crunchies for the “Best
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`Technology Innovation / Achievement” category by GigaOm, Read/WriteWeb, VentureBeat, and
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`TechCrunch. Exhibit 12.
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`ABR PATENTS SELL FOR $45 MILLION
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`30.
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`In December of 2010, EchoStar Advanced Technologies L.L.C., then a wholly owned
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`subsidiary of EchoStar Corporation, spent $45 million to acquire MOVE and its ABR Patent
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`portfolio. Recognizing the ingenuity of MOVE’s ABR technology and the value-added for its
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`customers and their increasing interest in quality online content delivery, DISH affiliate DISH
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`Digital Holding L.L.C. acquired EchoStar Advanced Technologies L.L.C. in connection with a
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`joint venture with EchoStar Corporation in 2012. EchoStar Advanced Technologies L.L.C., which
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`was later renamed DISH Digital L.L.C., transferred the ABR Patents to EchoStar Technologies
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`L.L.C. (a subsidiary of EchoStar Corporation) in 2014. In February 2017, EchoStar Technologies
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`L.L.C. became a subsidiary of DISH Network L.L.C., and in February 2018, was renamed DISH
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`Technologies L.L.C.
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`31.
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`DISH and its affiliated companies are a leading provider of Internet streaming services.
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`It is a leading investor and innovator in infrastructure and technologies that will meet the
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`personalized needs of its increasingly diverse pool of customers. Since its founding, DISH and its
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`affiliated companies have invested millions in research and development and acquisition of novel
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`technologies that will resolve long-felt problems and needs across its industry.
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`32.
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`As the public continues to increasingly rely on the Internet for its informational and
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`entertainment needs, one such problem into which DISH and its affiliated companies have
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`dedicated great time and resources is improving the quality of streaming media. The specific
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`entities that implement and own the technology covered by MOVE’s patent portfolio have
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`undergone significant evolution as these entities continue to improve upon ABR and advance
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`reliable delivery of high-resolution content over the Internet.
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`33.
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`DISH’s recent investments in ABR have already proven a success. Sling TV L.L.C. is
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`DISH and its affiliated companies’ main Internet-delivered content provider, offering
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`programming to numerous Internet streaming devices. Since the launch of Sling TV in the
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`beginning of 2015, Sling TV has grown to over 2.474 million subscribers, who are now receiving
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`a live TV video experience comparable to cable or satellite.
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`PRODUCTS AND SERVICES OFFERED BY LULULEMON AND MIRROR
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`INFRINGE THE ABR PATENTS
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`34.
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`Defendants have been and are now directly infringing and/or indirectly infringing the
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`ABR Patents.
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`35.
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`On information and belief, Defendants are distributors of live and on-demand content
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`via the Internet. See Exhibit 13; Exhibit 14. Defendants make, use, sell, and offer for sale in the
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`United States products and services that infringe the ABR Patents, and continue to do so. These
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`infringing products and services include online streaming services operated by Defendants,
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`including the Mirror Application, and the Mirror (collectively, “the Accused Streaming Services”).
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`36.
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`The Accused Streaming Services integrate hardware, software, and content to create a
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`unique user experience. For example, MIRROR CEO Brynn Putnam has explained that
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`“MIRROR is creating a new category of in-home fitness with cutting-edge hardware, responsive
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`software, and best-in-class content to provide a uniquely immersive, and personalized workout
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`experience.” Exhibit 15. The MIRROR software facilitates the delivery of this experience which
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`includes a real-time aspect that distinguishes the Mirror from traditional methods of exercising.
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`Id. (“MIRROR stands apart from the traditional gym because it adapts to the needs of an
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`individual user in real-time” and “We create custom hardware, proprietary software and original
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`content so that every element of the experience is deeply aligned with the user’s needs, and can
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`quickly respond to improve the experience as those needs evolve” (emphases added)).
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`37.
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`Streaming enables subscribers to enjoy full access to MIRROR’s content, including its
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`live classes. See Exhibit 16. An example of a live-streamed fitness class is shown below:
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`Exhibit 13 at 1–2.
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`
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`38.
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`On information and belief, Defendants have sold and offered for sale, and sell and offer
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`for sale, the Accused Streaming Services through their respective ecommerce websites:
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`{01679052;v1 }
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`13
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`
`
`

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`Case 1:21-cv-00532-UNA Document 1 Filed 04/13/21 Page 14 of 51 PageID #: 14
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`
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`Buy The Mirror, MIRROR, https://www.mirror.co/shop/mirror (last visited Apr. 3, 2021).
`
`
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`{01679052;v1 }
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`14
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`
`
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`

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`Case 1:21-cv-00532-UNA Document 1 Filed 04/13/21 Page 15 of 51 PageID #: 15
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`
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`Mirror, LULULEMON, https://shop.lululemon.com/story/mirror-home-gym (last visited Apr. 3,
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`2021). Clicking the “Shop the Mirror” hyperlink shown in the above screen capture redirects to a
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`lululemon-branded MIRROR webpage which allows an interested customer to purchase the
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`Mirror:
`
`
`
`Mirror
`
`from
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`lululemon,
`
`
`
`MIRROR,
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`https://www.mirror.co/shop/mirror/?utm_source=lululemon_site&utm_medium=lululemon&utm
`
`_campaign=lululemon_story_page (last visited Apr. 3, 2021).
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`39.
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`On information and belief, Defendants have also sold and offered for sale, and sell and
`
`offer for sale, the Accused Streaming Services via brick and mortar stores. According to the
`
`MIRROR website, MIRROR has 19 locations (which it refers to as “showrooms”) in the United
`
`States. Exhibit 17. These showrooms offer interested customers an opportunity to see and test the
`
`Accused Streaming Services. Id. (“Seeing is believing. Visit a showroom to try a sample workout
`
`and experience the Mirror for yourself.”). As identified on the MIRROR website, many of the
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`{01679052;v1 }
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`15
`
`
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`

`

`Case 1:21-cv-00532-UNA Document 1 Filed 04/13/21 Page 16 of 51 PageID #: 16
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`
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`showroom locations are lululemon retail stores. Id. (identifying 36 of the 37 MIRROR showrooms
`
`as being located within a lululemon retail store). On information and belief, hundreds of lululemon
`
`stores will double as MIRROR showrooms by the end of 2021. 60. Brynn Putnam, Founder &
`
`CEO of Mirror, FITT
`
`INSIDER WITH JOE VENNARE, at
`
` 20:50
`
`(Dec. 8, 2020),
`
`https://podcasts.apple.com/us/podcast/60-brynn-putnam-founder-ceo-of-
`
`mirror/id1481418164?i=1000501704754 (“FITT Insider Podcast”) (stating, post lululemon-
`
`MIRROR acquisition: “to be able to do that sort of a retail store rollout in such a quick amount of
`
`time with an eye towards hundreds of stores next year [] is just really exciting” and “the store
`
`rollout [] is one of our main focuses for holiday [2020] and into the new year [2021]” (emphases
`
`added)).
`
`CLAIMS FOR RELIEF
`
`COUNT I: INFRINGEMENT OF U.S. PATENT NO. 9,407,564
`
`DIRECT INFRINGEMENT
`
`40.
`
`DISH re-alleges and incorporates herein by reference the allegations contained in
`
`Paragraphs 1–39 of the Complaint as if fully set forth herein.
`
`41.
`
`On information and belief, Defendants directly infringe, 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
`that the files whose playback is the same portion of the video for each of the
`
`{01679052;v1 }
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`16
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`

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`Case 1:21-cv-00532-UNA Document 1 Filed 04/13/21 Page 17 of 51 PageID #: 17
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`
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`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.
`42.
`
`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
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`more detailed infringement analysis of the Accused Streaming Services.1
`
`43.
`
`On information and belief, Defendants possess knowledge of, and are 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 ad