Case 2:21-cv-00132-JRG Document 1 Filed 04/13/21 Page 1 of 51 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`DISH TECHNOLOGIES L.L.C. and SLING
`TV L.L.C.
`
`Plaintiffs,
`
`v.
`PELOTON INTERACTIVE, INC.
`Defendant.
`
`C.A. No. ________________
`JURY TRIAL DEMANDED
`
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiffs DISH Technologies L.L.C. and Sling TV L.L.C. (collectively, “DISH”) allege
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`against Defendant Peloton Interactive, Inc. (“Peloton”) as follows:
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`PARTIES
`
`1.
`
`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.
`
`2.
`
`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.
`
`On information and belief, Defendant Peloton Interactive, Inc. is a corporation existing
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`under the laws of the State of Delaware, with its principal place of business at 125 West 25th
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`Street, 11th Floor, New York, New York 10001. On information and belief, Peloton Interactive,
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`Inc. operates online streaming services through its Peloton Application and Peloton Devices (e.g.,
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`Peloton Bike and Peloton Tread). This Defendant has appointed Corporation Service Company at
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`251 Little Falls Drive, Wilmington DE 19808 as its agent for service of process.
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`JURISDICTION AND VENUE
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`4.
`
`DISH asserts a claim for patent infringement against Peloton arising under the patent
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`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).
`
`5.
`
`This Court has personal jurisdiction over Peloton for at least the following reasons:
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`(1) Peloton has committed acts of patent infringement and contributed to and induced acts of patent
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`infringement by others in this District; (2) Peloton regularly does business or solicits business in
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`this District; (3) Peloton engages in other persistent courses of conduct and derives substantial
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`revenue by its offering of infringing products and services and providing infringing products and
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`services in this District; and (4) Peloton has purposefully established substantial, systematic, and
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`continuous contacts with this District and should reasonably expect to be subject to suit here by its
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`offering of infringing products and services and providing infringing products and services in this
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`District.
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`6.
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`Peloton has been registered to do business in Texas since at least May 27, 2015, has
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`been assigned Texas Taxpayer No. 32057346739, and has a Texas registered agent, Corporation
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`Service Company dba CSC-Lawyers Incorporating Service Company, located at 211 East 7th
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`Street, Suite 620, Austin, TX 78701.
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`7.
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`Peloton, directly and through subsidiaries or intermediaries (including distributors,
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`retailers, and others), has purposefully and voluntarily placed its infringing products into this
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`District and into the stream of commerce with the intention and expectation that the infringing
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`2
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`products will be purchased for use in this District. Peloton has offered for sale and sold, and
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`continues to offer for sale and sell, infringing products for delivery and use in this District.
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`8.
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`Venue is proper in the District of Texas under at least 28 U.S.C. §§ 1391(b), (c) and/or
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`1400(b) at least because, on information and belief, Peloton has committed acts of infringement in
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`the State of Texas, including but not limited to offering products or services that infringe one or
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`more of DISH’s asserted patents to customers located in Texas and/or for use in Texas.
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`9.
`
`Peloton has a regular and established places of business in this District because it has
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`dedicated, physical places for its operations in this District. On information and belief, Peloton
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`has a second corporate headquarters, in Plano’s Legacy Central development located at 6600
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`Chase Oaks Blvd., Plano, TX 75023. See Complaint ¶¶ 7, 41, Peloton Interactive, Inc. v. Flywheel
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`Sports, Inc., No. 2-19-cv-00317 (E.D. Tex. Sept. 20, 2019); see also Exhibit 1 (stating that Peloton
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`has “rented 27,518 square feet of office space” at Legacy Central for its “first member support
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`center located outside of its New York City headquarters”). Peloton’s second corporate
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`headquarters is pictured below.
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`3
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`Peloton Head Quarters 2, 6600 Chase Oaks Blvd, Plano, TX 75023, GOOGLE MAPS,
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`https://goo.gl/maps/fJUAzt7Xc4hzgDkQ8 (last visited on Dec. 2, 2020). In December 2020,
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`Peloton announced that it would be expanding its second corporate headquarters by 103,759 square
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`feet of office space and up to 1,600 more jobs. Exhibit 2; see also Exhibit 3 at 19 (stating that the
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`lease term for the Plano corporate headquarters is extended through January 2029 and Peloton
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`expects to begin preparing the additional square footage for use as an office facility on December
`
`1, 2020).
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`10.
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`In addition to having a corporate headquarters in this judicial district, Peloton also has
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`a showroom in Plano’s Legacy West development located at 7500 Windrose Avenue, Plano, Texas
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`75024. Complaint ¶ 7, Peloton Interactive, Inc. v. Flywheel Sports, Inc., No. 2-19-cv-00317 (E.D.
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`4
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`Tex. Sept. 20, 2019); see also Exhibit 1 (stating that Peloton has “opened a new showroom at
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`Legacy West in Plano”); Exhibit 4. Peloton’s Plano showroom is pictured below.
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`7500 Windrose
`
`Ave
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`b165,
`
`Plano,
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`TX
`
`75024,
`
`GOOGLE
`
`MAPS,
`
`https://goo.gl/maps/Enceoqvg9hMkyuPH8 (last visited on Dec. 2, 2020).
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`11.
`
`Peloton has a regular and established place of business because, on information and
`
`belief, Peloton has employees and other agents regularly conducting business at its second
`
`corporate headquarters and showroom located in this District. Exhibit 1 at 2 (“Peloton will hire
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`up to 400 people to work in the Plano location”); Exhibit 4 (offering “a personalized walkthrough
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`of the Peloton Bike or Tread by a dedicated sales associate” at the Plano Legacy West location).
`
`12.
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`Peloton also has a regular and established place of business because Peloton’s Plano
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`corporate headquarters and Plano showroom are a place of Peloton. On information and belief,
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`Peloton leases these places from the owners of Plano’s Legacy Central and Legacy West
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`developments and Peloton engages in business from these places. Exhibit 1 (stating that Peloton
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`has “rented 27,518 square feet of office space” at Legacy Central and has “opened a new
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`showroom at Legacy West in Plano”); see also Exhibit 4.
`
`THE ABR PATENTS
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`13.
`
`On August 2, 2016, the PTO duly and lawfully issued United States Patent No.
`
`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.
`
`14.
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`On November 5, 2019, the PTO duly and lawfully issued United States Patent No.
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`10,469,554 (“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
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`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.
`
`15.
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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
`
`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.
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`16.
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`On August 25, 2020, 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 adaptive-rate shifting
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`of streaming content.” A true and correct copy of the ’156 Patent is attached as Exhibit D. Subject
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`6
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`to the exclusive license referenced below, all rights, title, and interest in and to the ’156 Patent
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`have been assigned to DISH Technologies L.L.C., which is the sole owner of the ’156 Patent.
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`17.
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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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`18.
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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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`19.
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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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`20.
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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.
`
`
`
`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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`21.
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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,
`
`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.
`
`7
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`

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`11/116,783. Each of the ’554, ’555, and ’680 Patents issued from patent applications that are
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`continuations-in-part of U.S. Patent Application No. 11/116,783.
`
`BACKGROUND OF THE DISPUTE
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`MOVE IS A PIONEER OF ADAPTIVE BITRATE TECHNOLOGY
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`22. 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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`23.
`
`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, though, 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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`24.
`
`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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`25.
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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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`26.
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`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]
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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
`
`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
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`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
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`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.
`
`27.
`
`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
`
`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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`28.
`
`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-
`
`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
`
`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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`29.
`
`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
`
`succeeded at making bitrate switching consistent and none actually worked over the Internet.
`
`30.
`
`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,
`
`Forbes explained that Move Networks was “at the forefront of [the] next evolution” of media
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`streaming. Exhibit 5. 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
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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 6. Industry leaders “have regarded the Red
`
`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 7. Similarly, Move Networks was
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`also named as a member of the OnHollywood 100 in 2007. Exhibit 8. The list is curated by
`
`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 9.
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`ABR PATENTS SELL FOR $45 MILLION
`
`31.
`
`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
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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
`
`Technologies L.L.C.
`
`32.
`
`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
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`technologies that will resolve long-felt problems and needs across its industry.
`
`33.
`
`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
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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.
`
`34.
`
`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
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`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.
`
`PELOTON’S PRODUCTS AND SERVICES INFRINGE THE ABR PATENTS
`
`35.
`
`Peloton has been and is now directly infringing and/or indirectly infringing the ABR
`
`Patents.
`
`36.
`
`On information and belief, Peloton is a distributor of live and on-demand content via
`
`the Internet. Exhibit 3 at 11. Peloton 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 Peloton Interactive, Inc.
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`including, the Peloton Application and Peloton Devices (e.g., the Peloton Bike and Peloton Tread)
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`(collectively, “the Accused Streaming Services”). Id.
`
`37.
`
`The Accused Streaming Services are defined by an integrated experience of hardware,
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`software, and content. For example, a Peloton document states that “[w]hile we use the word bike
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`freely, the ‘the [sic] Peloton Bike’ is actually defined by the integrated experience of hardware
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`software and content. Need to ensure we don’t draw focus to the hardware only.” Exhibit 10 at
`
`5.
`
`38.
`
`Peloton’s use of state-of-the-art streaming technology has established Peloton as
`
`“premium brand.” For example, a Peloton document states that “Peloton has established itself as
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`a premium brand through design and performance excellence. Some proof points include: … (2)
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`state of the art streaming technology.” Exhibit 11 at 21.
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`39.
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`Streaming technology is at the core of the Peloton experience. In an interview with
`
`Sarah Lacy of Startups.com, Peloton’s Chief Technology Officer, Yony Feng, stated that:
`
`Streaming is the core experience. The worst thing we can do is have an
`interruption to the experience of riding. Over the past year and half what we
`started building is a system where the table is sending anonymous metrics to
`us, such as, out of the last thirty seconds how did you buffer and how did you
`not buffer? The question we always want to know the answer to is: First, is
`every one of our users experiencing a streaming problem now? If so then the
`studio has a problem and it’s impacting the user base worldwide.
`
`In a lot of cases streaming problems are a combination with some of the set ups
`people have. Think about the bike. It isn’t necessarily in the same location as
`your AppleTV, which is usually right next to the router or modem. There’s a
`combination of wifi density and fdistance from the router. We are looking at
`ways to long term solve that problem, maybe through a more powerful antenna.
`
`Exhibit 12 at 6-7 (Streaming the Future of Fitness Interview with Yony Feng) (available at
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`https://www.startups.com/library/founder-stories/yony-feng).
`
`40.
`
`On information and belief, the Accused Streaming Services provide “connected,
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`technology-enabled fitness” and “the streaming of immersive, instructor-led boutique classes.”
`
`Exhibit 3 at 9. Here is an example of a live streamed fitness class using the Peloton Bike platform:
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`15
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`Case 2:21-cv-00132-JRG Document 1 Filed 04/13/21 Page 16 of 51 PageID #: 16
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`CLAIMS FOR RELIEF
`COUNT I: INFRINGEMENT OF U.S. PATENT NO. 9,407,564
`
`DIRECT INFRINGEMENT
`
`41.
`
`DISH re-alleges and incorporates herein by reference the allegations contained in
`
`Paragraphs 1–40 of the Complaint as if fully set forth herein.
`
`42.
`
`On information and belief, Peloton 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;
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`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
`
`16
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`

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`Case 2:21-cv-00132-JRG Document 1 Filed 04/13/21 Page 17 of 51 PageID #: 17
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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.
`
`43.
`
`The Accused Streaming Services receive segments of a selected video program for
`
`playback of programming over a network connection. The Accused Streaming Services adapt
`
`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
`
`44.
`
`On information and belief, Peloton 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.
`
`17
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`Case 2:21-cv-00132-JRG Document 1 Filed 04/13/21 Page 18 of 51 PageID #: 18
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`45.
`
`Peloton’s acts of infringement have injured and damaged DISH and will continue to
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`injure and damage DISH.
`
`46.
`
`Peloton’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, Peloton will continue these infringing acts unless enjoined by this court.
`
`INDIR