Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 1 of 76 PageID #: 322
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`REALTIME ADAPTIVE STREAMING LLC,
`
`Plaintiff,
`
`v.
`
`BRIGHTCOVE INC., and
`BRIGHTCOVE HOLDINGS, INC.,
`
`Defendants.
`
`C.A. No. 17-1519-VAC-MPT
`
`JURY TRIAL DEMANDED
`
`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`This is an action for patent infringement arising under the Patent Laws of the
`
`United States of America, 35 U.S.C. § 1 et seq. in which Plaintiff Realtime Adaptive
`
`Streaming LLC (“Plaintiff” or “Realtime”) makes the following allegations against
`
`Defendants Brightcove Inc. (“Brightcove”) and Brightcove Holdings, Inc. (“BH”)
`
`(collectively “Defendants”).
`
`PARTIES
`
`1.
`
`Realtime is a Texas limited liability company. Realtime has a place of
`
`business at 1828 E.S.E. Loop 323, Tyler, Texas 75701. Realtime has researched and
`
`developed specific solutions for data compression, including, for example, those that
`
`increase the speeds at which data can be stored and accessed. As recognition of its
`
`innovations rooted in this technological field, Realtime holds multiple United States
`
`patents and pending patent applications.
`
`2.
`
`On information and belief, Defendants Brightcove and BH are Delaware
`
`corporations with their principal place of business at 290 Congress Street, 4th Floor,
`
`Boston, MA 02210. Defendants reside in this District because they are incorporated in
`
`1
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`REALTIME ADAPTIVE STREAMING LLC,
`
`Plaintiff,
`
`v.
`
`BRIGHTCOVE INC., and
`BRIGHTCOVE HOLDINGS, INC.,
`
`Defendants.
`
`C.A. No. 17-1519-VAC-MPT
`
`JURY TRIAL DEMANDED
`
`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`This is an action for patent infringement arising under the Patent Laws of the
`
`United States of America, 35 U.S.C. § 1 et seq. in which Plaintiff Realtime Adaptive
`
`Streaming LLC (“Plaintiff” or “Realtime”) makes the following allegations against
`
`Defendants Brightcove Inc. (“Brightcove”) and Brightcove Holdings, Inc. (“BH”)
`
`(collectively “Defendants”).
`
`PARTIES
`
`1.
`
`Realtime is a Texas limited liability company. Realtime has a place of
`
`business at 1828 E.S.E. Loop 323, Tyler, Texas 75701. Realtime has researched and
`
`developed specific solutions for data compression, including, for example, those that
`
`increase the speeds at which data can be stored and accessed. As recognition of its
`
`innovations rooted in this technological field, Realtime holds multiple United States
`
`patents and pending patent applications.
`
`2.
`
`On information and belief, Defendants Brightcove and BH are Delaware
`
`corporations with their principal place of business at 290 Congress Street, 4th Floor,
`
`Boston, MA 02210. Defendants reside in this District because they are incorporated in
`
`1
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 2 of 76 PageID #: 323
`
`Delaware. Defendants offer their products and/or services, including those accused
`
`herein of infringement, to customers and potential customers located in Delaware and in
`
`this District. Defendants may be served with process through their registered agent for
`
`service in Delaware at The Corporation Trust Company, located at Corporation Trust
`
`Center, 1209 Orange Street, Wilmington, Delaware, 19801.
`
`JURISDICTION AND VENUE
`
`3.
`
`This action arises under the patent laws of the United States, Title 35 of
`
`the United States Code. This Court has original subject matter jurisdiction pursuant to 28
`
`U.S.C. §§ 1331 and 1338(a).
`
`4.
`
`This Court has personal jurisdiction over Defendants in this action because
`
`Defendants have committed acts within the District of Delaware giving rise to this action
`
`and have established minimum contacts with this forum such that the exercise of
`
`jurisdiction over Defendants would not offend traditional notions of fair play and
`
`substantial justice. Defendants have also committed and continue to commit acts of
`
`infringement in this District by, among other things, offering to sell and selling products
`
`and/or services that infringe the asserted patents.
`
`5.
`
`Venue is proper in this district, e.g., under 28 U.S.C. § 1400(b).
`
`Defendants reside in this District because they are incorporated in Delaware. Furthermore,
`
`upon information and belief, Defendants have transacted business in the District of
`
`Delaware and have committed acts of direct and indirect infringement in the District of
`
`Delaware.
`
`2
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 3 of 76 PageID #: 324
`
`COUNT I
`INFRINGEMENT OF U.S. PATENT NO. 8,934,535
`
`6.
`
`Plaintiff
`
`re-alleges
`
`and incorporates by reference
`
`the
`
`foregoing
`
`paragraphs, as if fully set forth herein.
`
`7.
`
`Plaintiff Realtime is the owner by assignment of United States Patent No.
`
`8,934,535 (“the ’535 Patent”) entitled “Systems and methods for video and audio data
`
`storage and distribution.” The ’535 Patent was duly and legally issued by the United
`
`States Patent and Trademark Office on January 13, 2015. A true and correct copy of
`
`the ’535 Patent is included as Exhibit A.
`
`8.
`
`On information and belief, Defendants have made, used, offered for sale,
`
`sold and/or imported into the United States products that infringe the ’535 Patent, and
`
`continue to do so. By way of illustrative example, these infringing products include,
`
`without limitation, Defendants’ video encoding, streaming, and publishing services and
`
`products, such as, e.g., Video Cloud, Brightcove Live, Mediacoder and Zencoder, and all
`
`versions and variations thereof since the issuance of the ’535 Patent (“Accused
`
`Instrumentalities”).
`
`9.
`
`On information and belief, Defendants have directly infringed and
`
`continue to infringe the ’535 Patent, for example, through their own use and testing of the
`
`Accused Instrumentalities, which when used, practices the method claimed by Claim 15
`
`of the ’535 Patent, namely, a method, comprising: determining a parameter of at least a
`
`portion of a data block; selecting one or more asymmetric compressors from among a
`
`plurality of compressors based upon the determined parameter or attribute; compressing
`
`the at least the portion of the data block with the selected one or more asymmetric
`
`compressors to provide one or more compressed data blocks; and storing at least a
`
`3
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 4 of 76 PageID #: 325
`
`portion of the one or more compressed data blocks. Upon information and belief,
`
`Defendants use the Accused Instrumentalities to practice infringing methods for its own
`
`internal non-testing business purposes, while testing the Accused Instrumentalities, and
`
`while providing technical support and repair services for the Accused Instrumentalities to
`
`their customers.
`
`10.
`
`For example, the Accused Instrumentalities utilize H.264 video
`
`compression standard. For example, users are instructed to select the H.264 video codec
`
`when using the Brightcove Live API to create a live stream on Video Cloud
`
`(https://docs.brightcove.com/en/live/getting-started/quick-start.html) and Zencoder also
`
`uses H.264 (https://support.brightcove.com/zencoder-encoding-settings-h264) and
`
`Mediacoder is a H264 encoder (https://www.brightcove.com/en/blog/2009/08/h264-
`
`encoding-using-mediacoder). On information and belief, all of the Accused
`
`Instrumentalities deliver “adaptive bitrate streaming” to client devices.
`
`(https://www.brightcove.com/en/zencoder.)
`
`11.
`
`The Accused Instrumentalities determine a parameter of at least a portion
`
`of a video data block. As shown below, examples of such parameters include bitrate (or
`
`max video bitrate) and resolution parameters. Different parameters correspond with
`
`different end applications. H.264 provides for multiple different ranges of such
`
`parameters, each included in the “profiles” and “levels” defined by the H.264 standard.
`
`See http://www.axis.com/files/whitepaper/wp_h264_31669_en_0803_lo.pdf at 5:
`
`4
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 5 of 76 PageID #: 326
`
`See https://en.wikipedia.org/wiki/H.264/MPEG-4_AVC:
`
`12.
`
`A video data block is organized by the group of pictures (GOP) structure,
`
`which is a “collection of successive pictures within a coded video stream.” See
`
`https://en.wikipedia.org/wiki/Group_of_pictures. A GOP structure can contain intra
`
`5
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 6 of 76 PageID #: 327
`
`coded pictures (I picture or I frame), predictive coded pictures (P picture or P frame),
`
`bipredictive coded pictures (B picture or B frame) and direct coded pictures (D picture or
`
`D frames, or DC direct coded pictures which are used only in MPEG-1 video). See
`
`https://en.wikipedia.org/wiki/Video_compression_picture_types (for descriptions of I
`
`frames, P frames and B frames); https://en.wikipedia.org/wiki/MPEG-1#D-frames (for
`
`descriptions of D frames). Thus, at least a portion of a video data block would also make
`
`up a GOP structure and could also contain I frames, P frames, B frames and/or D frames.
`
`The GOP structure also reflects the size of a video data block, and the GOP structure can
`
`be controlled and used to fine-tune other parameters (e.g. bitrate, max video bitrate and
`
`resolution parameters) or even be considered as a parameter by itself.
`
`13.
`
`Based on the bitrate and/or resolution parameter identified (e.g. bitrate,
`
`max video bitrate, resolution, GOP structure or frame type within a GOP structure), any
`
`H.264-compliant system such as the Accused Instrumentalities would determine which
`
`profile (e.g., “baseline,” “extended,” “main”, or “high”) corresponds with that parameter,
`
`then select between at least two asymmetric compressors. If baseline or extended is the
`
`corresponding profile, then the system will select a Context-Adaptive Variable Length
`
`Coding (“CAVLC”) entropy encoder. If main or high is the corresponding profile, then
`
`the system will select a Context-Adaptive Binary Arithmetic Coding (“CABAC”) entropy
`
`encoder. Both encoders are asymmetric compressors because it takes a longer period of
`
`time for them to compress data than to decompress data. See
`
`https://sonnati.wordpress.com/2007/10/29/how-h-264-works-part-ii/:
`
`6
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 7 of 76 PageID #: 328
`
`See http://web.cs.ucla.edu/classes/fall03/cs218/paper/H.264_MPEG4_Tutorial.pdf at 7:
`
`7
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 8 of 76 PageID #: 329
`
`Moreover, the H.264 Standard requires a bit-flag descriptor, which is set to determine the
`
`correct decoder for the corresponding encoder. As shown below, if the flag = 0, then
`
`CAVLC must have been selected as the encoder; if the flag = 1, then CABAC must have
`
`been selected as the encoder. See https://www.itu.int/rec/dologin_pub.asp?lang=e&id=T-
`
`REC-H.264-201304-S!!PDF-E&type=items (Rec. ITU-T H.264 (04/2013)) at 80:
`
`14.
`
`The Accused Instrumentalities compress the at least the portion of the data
`
`block with the selected one or more asymmetric compressors to provide one or more
`
`compressed data blocks, which can be organized in a GOP structure (see above). After
`
`its selection, the asymmetric compressor (CAVLC or CABAC) will compress the video
`
`8
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 9 of 76 PageID #: 330
`
`data to provide various compressed data blocks, which can also be organized in a GOP
`
`structure. See https://sonnati.wordpress.com/2007/10/29/how-h-264-works-part-ii/:
`
`See
`
`http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.602.1581&rep=rep1&type=pdf
`
`at 13:
`
`See http://www.ijera.com/papers/Vol3_issue4/BM34399403.pdf at 2:
`
`9
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 10 of 76 PageID #: 331
`
`15.
`
`On information and belief, the Accused Instrumentalities store at least a
`
`portion of the one or more compressed data blocks in buffers, hard disk, or other forms of
`
`memory/storage.
`
`16.
`
`On information and belief, Defendants also directly infringe and continue
`
`to infringe other claims of the ’535 Patent, for similar reasons as explained above with
`
`respect to Claim 15 of the ’535 Patent.
`
`17.
`
`On information and belief, all of the Accused Instrumentalities perform
`
`the claimed methods in substantially the same way, e.g., in the manner specified in the
`
`H.264 standard.
`
`18.
`
`On information and belief, use of the Accused Instrumentalities in their
`
`ordinary and customary fashion results in infringement of the methods claimed by
`
`the ’535 Patent.
`
`19.
`
`On information and belief, Defendants have had knowledge of the ’535
`
`Patent since at least the filing of this Complaint or shortly thereafter, and on information
`
`and belief, Defendants knew of the ’535 Patent and knew of its infringement, including
`
`by way of this lawsuit. By the time of trial, Defendants will have known and intended
`
`(since receiving such notice) that its continued actions would actively induce and
`
`contribute to the infringement of the claims of the ’535 Patent.
`
`20.
`
`Upon information and belief, Defendants’ affirmative acts of making,
`
`using, and selling the Accused Instrumentalities, and providing implementation services
`
`and technical support to users of the Accused Instrumentalities, including, e.g., through
`
`training, demonstrations, brochures, installation and user guides, have induced and
`
`continue to induce users of the Accused Instrumentalities to use them in their normal and
`
`10
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 11 of 76 PageID #: 332
`
`customary way to infringe the ’535 Patent by practicing a method, comprising:
`
`determining a parameter of at least a portion of a data block; selecting one or more
`
`asymmetric compressors from among a plurality of compressors based upon the
`
`determined parameter or attribute; compressing the at least the portion of the data block
`
`with the selected one or more asymmetric compressors to provide one or more
`
`compressed data blocks; and storing at least a portion of the one or more compressed data
`
`blocks. For example, Defendants adopted H.264 in their Zencoder application and
`
`streaming and publishing services. For similar reasons, Defendants also induce their
`
`customers to use the Accused Instrumentalities to infringe other claims of the ’535
`
`Patent. Defendants specifically intended and were aware that these normal and
`
`customary activities would infringe the ’535 Patent. Defendants performed the acts that
`
`constitute induced infringement, and would induce actual infringement, with the
`
`knowledge of the ’535 Patent and with the knowledge, or willful blindness to the
`
`probability, that the induced acts would constitute infringement. On information and
`
`belief, Defendants engaged in such inducement to promote the sales of the Accused
`
`Instrumentalities. Accordingly, Defendants have induced and continue to induce users of
`
`the Accused Instrumentalities to use the Accused Instrumentalities in their ordinary and
`
`customary way to infringe the ’535 Patent, knowing that such use constitutes
`
`infringement of the ’535 Patent. Accordingly, Defendants have been, and currently are,
`
`inducing infringement of the ’535 Patent, in violation of 35 U.S.C. § 271(b).
`
`21.
`
`Defendants have also infringed, and continue to infringe, claims of
`
`the ’535 Patent by offering to commercially distribute, commercially distributing, making,
`
`and/or importing the Accused Instrumentalities, which are used in practicing the process,
`
`11
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 12 of 76 PageID #: 333
`
`or using the systems, of the ’535 Patent, and constitute a material part of the invention.
`
`Defendants know the components in the Accused Instrumentalities to be especially made
`
`or especially adapted for use in infringement of the ’535 Patent, not a staple article, and
`
`not a commodity of commerce suitable for substantial noninfringing use. Accordingly,
`
`Defendants have been, and currently are, contributorily infringing the ’535 Patent, in
`
`violation of 35 U.S.C. § 271(c).
`
`22.
`
`By making, using, offering for sale, selling and/or importing into the
`
`United States the Accused Instrumentalities, and touting the benefits of using the
`
`Accused Instrumentalities’ compression features, Defendants have injured Realtime and
`
`are liable to Realtime for infringement of the ’535 Patent pursuant to 35 U.S.C. § 271.
`
`23.
`
`As a result of Defendants’ infringement of the ’535 Patent, Plaintiff
`
`Realtime is entitled to monetary damages in an amount adequate to compensate for
`
`Defendants’ infringement, but in no event less than a reasonable royalty for the use made
`
`of the invention by Defendants, together with interest and costs as fixed by the Court.
`
`COUNT II
`INFRINGEMENT OF U.S. PATENT NO. 9,769,477
`
`24.
`
`Plaintiff
`
`re-alleges
`
`and incorporates by reference
`
`the
`
`foregoing
`
`paragraphs, as if fully set forth herein.
`
`25.
`
`Plaintiff Realtime is the owner by assignment of United States Patent No.
`
`9,769,477 (“the ‘477 Patent”) entitled “Video data compression systems.” The ’477
`
`Patent was duly and legally issued by the United States Patent and Trademark Office on
`
`September 19, 2017. A true and correct copy of the ’477 Patent is included as Exhibit B.
`
`26.
`
`On information and belief, Defendants have made, used, offered for sale,
`
`sold and/or imported into the United States products that infringe the ’477 Patent, and
`
`12
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 13 of 76 PageID #: 334
`
`continue to do so. By way of illustrative example, these infringing products include,
`
`without limitation, Defendants’ video encoding, streaming, and publishing services and
`
`products, such as, e.g., Video Cloud, Brightcove Live, Mediacoder and Zencoder, and all
`
`versions and variations thereof since the issuance of the ’477 Patent (“Accused
`
`Instrumentalities”).
`
`27.
`
`On information and belief, Defendants have directly infringed and
`
`continue to infringe the ’477 Patent, for example, through their own use and testing of the
`
`Accused Instrumentalities, which when used, practices the system claimed by Claim 1 of
`
`the ’477 Patent, namely, a system, comprising: a plurality of different asymmetric data
`
`compression encoders, wherein each asymmetric data compression encoder of the
`
`plurality of different asymmetric data compression encoders is configured to utilize one
`
`or more data compression algorithms, and wherein a first asymmetric data compression
`
`encoder of the plurality of different asymmetric data compression encoders is configured
`
`to compress data blocks containing video or image data at a higher data compression rate
`
`than a second asymmetric data compression encoder of the plurality of different
`
`asymmetric data compression encoders; and one or more processors configured to:
`
`determine one or more data parameters, at least one of the determined one or more data
`
`parameters relating to a throughput of a communications channel measured in bits per
`
`second; and select one or more asymmetric data compression encoders from among the
`
`plurality of different asymmetric data compression encoders based upon, at least in part,
`
`the determined one or more data parameters. Upon information and belief, Defendants
`
`use the Accused Instrumentalities to practice infringing methods for its own internal non-
`
`testing business purposes, while testing the Accused Instrumentalities, and while
`
`13
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 14 of 76 PageID #: 335
`
`providing technical support and repair services for the Accused Instrumentalities to their
`
`customers.
`
`28.
`
`For example, the Accused Instrumentalities utilize H.264 video
`
`compression standard. For example, users are instructed to select the H.264 video codec
`
`when using the Brightcove Live API to create a live stream on Video Cloud
`
`(https://docs.brightcove.com/en/live/getting-started/quick-start.html) and Zencoder also
`
`uses H.264 (https://support.brightcove.com/zencoder-encoding-settings-h264) and
`
`Mediacoder is a H264 encoder (https://www.brightcove.com/en/blog/2009/08/h264-
`
`encoding-using-mediacoder). On information and belief, all of the Accused
`
`Instrumentalities deliver “adaptive bitrate streaming” to client devices.
`
`(https://www.brightcove.com/en/zencoder.)
`
`29.
`
`The Accused Instrumentalities determine a parameter of at least a portion
`
`of a video data block. As shown below, examples of such parameters include bitrate (or
`
`max video bitrate) and resolution parameters. Different parameters correspond with
`
`different end applications. H.264 provides for multiple different ranges of such
`
`parameters, each included in the “profiles” and “levels” defined by the H.264 standard.
`
`See http://www.axis.com/files/whitepaper/wp_h264_31669_en_0803_lo.pdf at 5:
`
`14
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 15 of 76 PageID #: 336
`
`See https://en.wikipedia.org/wiki/H.264/MPEG-4_AVC:
`
`30.
`
`A video data block is organized by the group of pictures (GOP) structure,
`
`which is a “collection of successive pictures within a coded video stream.” See
`
`https://en.wikipedia.org/wiki/Group_of_pictures. A GOP structure can contain intra
`
`15
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 16 of 76 PageID #: 337
`
`coded pictures (I picture or I frame), predictive coded pictures (P picture or P frame),
`
`bipredictive coded pictures (B picture or B frame) and direct coded pictures (D picture or
`
`D frames, or DC direct coded pictures which are used only in MPEG-1 video). See
`
`https://en.wikipedia.org/wiki/Video_compression_picture_types (for descriptions of I
`
`frames, P frames and B frames); https://en.wikipedia.org/wiki/MPEG-1#D-frames (for
`
`descriptions of D frames). Thus, at least a portion of a video data block would also make
`
`up a GOP structure and could also contain I frames, P frames, B frames and/or D frames.
`
`The GOP structure also reflects the size of a video data block, and the GOP structure can
`
`be controlled and used to fine-tune other parameters (e.g. bitrate, max video bitrate and
`
`resolution parameters) or even be considered as a parameter by itself.
`
`31.
`
`Based on the bitrate and/or resolution parameter identified (e.g. bitrate,
`
`max video bitrate, resolution, GOP structure or frame type within a GOP structure), any
`
`H.264-compliant system such as the Accused Instrumentalities would determine which
`
`profile (e.g., “baseline,” “extended,” “main”, or “high”) corresponds with that parameter,
`
`then select between at least two asymmetric compressors. If baseline or extended is the
`
`corresponding profile, then the system will select a Context-Adaptive Variable Length
`
`Coding (“CAVLC”) entropy encoder. If main or high is the corresponding profile, then
`
`the system will select a Context-Adaptive Binary Arithmetic Coding (“CABAC”) entropy
`
`encoder. Both encoders are asymmetric compressors because it takes a longer period of
`
`time for them to compress data than to decompress data. See
`
`https://sonnati.wordpress.com/2007/10/29/how-h-264-works-part-ii/:
`
`16
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 17 of 76 PageID #: 338
`
`See http://web.cs.ucla.edu/classes/fall03/cs218/paper/H.264_MPEG4_Tutorial.pdf at 7:
`
`17
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 18 of 76 PageID #: 339
`
`Moreover, the H.264 Standard requires a bit-flag descriptor, which is set to determine the
`
`correct decoder for the corresponding encoder. As shown below, if the flag = 0, then
`
`CAVLC must have been selected as the encoder; if the flag = 1, then CABAC must have
`
`been selected as the encoder. See https://www.itu.int/rec/dologin_pub.asp?lang=e&id=T-
`
`REC-H.264-201304-S!!PDF-E&type=items (Rec. ITU-T H.264 (04/2013)) at 80:
`
`32.
`
`The Accused Instrumentalities compress the at least the portion of the data
`
`block with the selected one or more asymmetric compressors to provide one or more
`
`compressed data blocks, which can be organized in a GOP structure (see above). After
`
`its selection, the asymmetric compressor (CAVLC or CABAC) will compress the video
`
`18
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 19 of 76 PageID #: 340
`
`data to provide various compressed data blocks, which can also be organized in a GOP
`
`structure. See https://sonnati.wordpress.com/2007/10/29/how-h-264-works-part-ii/:
`
`33.
`
`See
`
`http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.602.1581&rep=rep1&type=pdf
`
`at 13:
`
`See http://www.ijera.com/papers/Vol3_issue4/BM34399403.pdf at 2:
`
`19
`
`
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`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 20 of 76 PageID #: 341
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`34.
`
`On information and belief, the Accused Instrumentalities store at least a
`
`portion of the one or more compressed data blocks in buffers, hard disk, or other forms of
`
`memory/storage.
`
`35.
`
`On information and belief, Defendants also directly infringe and continue
`
`to infringe other claims of the ’477 Patent, for similar reasons as explained above with
`
`respect to Claim 1 of the ’477 Patent.
`
`36.
`
`On information and belief, all of the Accused Instrumentalities perform
`
`the claimed methods in substantially the same way, e.g., in the manner specified in the
`
`H.264 standard.
`
`37.
`
`On information and belief, use of the Accused Instrumentalities in their
`
`ordinary and customary fashion results in infringement of the methods claimed by
`
`the ’477 Patent.
`
`38.
`
`On information and belief, Defendants have had knowledge of the ’477
`
`Patent since at least the filing of this Complaint or shortly thereafter, and on information
`
`and belief, Defendants knew of the ’477 Patent and knew of its infringement, including
`
`by way of this lawsuit. By the time of trial, Defendants will have known and intended
`
`(since receiving such notice) that its continued actions would actively induce and
`
`contribute to the infringement of the claims of the ’477 Patent.
`
`39.
`
`Upon information and belief, Defendants’ affirmative acts of making,
`
`using, and selling the Accused Instrumentalities, and providing implementation services
`
`and technical support to users of the Accused Instrumentalities, including, e.g., through
`
`training, demonstrations, brochures, installation and user guides, have induced and
`
`continue to induce users of the Accused Instrumentalities to use them in their normal and
`
`20
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 21 of 76 PageID #: 342
`
`customary way to infringe the ’477 Patent by practicing a system, comprising: a plurality
`
`of different asymmetric data compression encoders, wherein each asymmetric data
`
`compression encoder of the plurality of different asymmetric data compression encoders
`
`is configured to utilize one or more data compression algorithms, and wherein a first
`
`asymmetric data compression encoder of the plurality of different asymmetric data
`
`compression encoders is configured to compress data blocks containing video or image
`
`data at a higher data compression rate than a second asymmetric data compression
`
`encoder of the plurality of different asymmetric data compression encoders; and one or
`
`more processors configured to: determine one or more data parameters, at least one of the
`
`determined one or more data parameters relating to a throughput of a communications
`
`channel measured in bits per second; and select one or more asymmetric data
`
`compression encoders from among the plurality of different asymmetric data
`
`compression encoders based upon, at least in part, the determined one or more data
`
`parameters. For example, Defendants adopted H.264 in their Zencoder application and
`
`streaming and publishing services. For similar reasons, Defendants also induce their
`
`customers to use the Accused Instrumentalities to infringe other claims of the ’477
`
`Patent. Defendants specifically intended and were aware that these normal and
`
`customary activities would infringe the ’477 Patent. Defendants performed the acts that
`
`constitute induced infringement, and would induce actual infringement, with the
`
`knowledge of the ’477 Patent and with the knowledge, or willful blindness to the
`
`probability, that the induced acts would constitute infringement. On information and
`
`belief, Defendants engaged in such inducement to promote the sales of the Accused
`
`Instrumentalities. Accordingly, Defendants have induced and continue to induce users of
`
`21
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 22 of 76 PageID #: 343
`
`the Accused Instrumentalities to use the Accused Instrumentalities in their ordinary and
`
`customary way to infringe the ’477 Patent, knowing that such use constitutes
`
`infringement of the ’477 Patent. Accordingly, Defendants have been, and currently are,
`
`inducing infringement of the ’477 Patent, in violation of 35 U.S.C. § 271(b).
`
`40.
`
`Defendants have also infringed, and continue to infringe, claims of
`
`the ’477 Patent by offering to commercially distribute, commercially distributing, making,
`
`and/or importing the Accused Instrumentalities, which are used in practicing the process,
`
`or using the systems, of the ’477 Patent, and constitute a material part of the invention.
`
`Defendants know the components in the Accused Instrumentalities to be especially made
`
`or especially adapted for use in infringement of the ’477 Patent, not a staple article, and
`
`not a commodity of commerce suitable for substantial noninfringing use. Accordingly,
`
`Defendants have been, and currently are, contributorily infringing the ’477 Patent, in
`
`violation of 35 U.S.C. § 271(c).
`
`41.
`
`By making, using, offering for sale, selling and/or importing into the
`
`United States the Accused Instrumentalities, and touting the benefits of using the
`
`Accused Instrumentalities’ compression features, Defendants have injured Realtime and
`
`are liable to Realtime for infringement of the ’477 Patent pursuant to 35 U.S.C. § 271.
`
`42.
`
`As a result of Defendants’ infringement of the ’477 Patent, Plaintiff
`
`Realtime is entitled to monetary damages in an amount adequate to compensate for
`
`Defendants’ infringement, but in no event less than a reasonable royalty for the use made
`
`of the invention by Defendants, together with interest and costs as fixed by the Court.
`
`22
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 23 of 76 PageID #: 344
`
`COUNT III
`INFRINGEMENT OF U.S. PATENT NO. 8,929,442
`
`43.
`
`Plaintiff
`
`re-alleges
`
`and incorporates by reference
`
`the
`
`foregoing
`
`paragraphs, as if fully set forth herein.
`
`44.
`
`Plaintiff Realtime is the owner by assignment of United States Patent No.
`
`8,929,442 (“the ’442 Patent”) entitled “System and method for video and audio data
`
`distribution.” The ’442 Patent was duly and legally issued by the United States Patent
`
`and Trademark Office on January 6, 2015. A true and correct copy of the ’442 Patent is
`
`included as Exhibit C.
`
`45.
`
`On information and belief, Defendants have made, used, offered for sale,
`
`sold and/or imported into the United States products that infringe the ’442 Patent, and
`
`continue to do so. By way of illustrative example, these infringing products include,
`
`without limitation, Defendants’ video encoding, streaming, and publishing services and
`
`products, such as, e.g., Video Cloud, Brightcove Live, Mediacoder and Zencoder, and all
`
`versions and variations thereof since the issuance of the ’442 Patent (“Accused
`
`Instrumentalities”).
`
`46.
`
`On information and belief, Defendants have directly infringed and
`
`continue to infringe the ’442 Patent, for example, through their own use and testing of the
`
`Accused Instrumentalities, which when used, practices the apparatus claimed by Claim 8
`
`of the ’442 Patent, namely, an apparatus, comprising: a data decompression system
`
`configured to decompress a compressed data block; and a storage medium configured to
`
`store at least a portion of the decompressed data block, wherein at least a portion of a data
`
`block having video or audio data was compressed with one or more compression
`
`algorithms selected from among a plurality of compression algorithms based upon a
`
`23
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 24 of 76 PageID #: 345
`
`throughput of a communication channel and a parameter or an attribute of the at least the
`
`portion of the data block to create at least the compressed data block, and wherein at least
`
`one of the plurality of compression algorithms is asymmetric. Upon information and
`
`belief, Defendants use the Accused Instrumentalities to practice infringing methods for its
`
`own internal non-testing business purposes, while testing the Accused Instrumentalities,
`
`and while providing technical support and repair services for the Accused
`
`Instrumentalities to their customers.
`
`47.
`
`For example, the Accused Instrumentalities utilize H.264 video
`
`compression standard. For example, users are instructed to select the H.264 video codec
`
`when using the Brightcove Live API to create a live stream on Video Cloud
`
`(https://docs.brightcove.com/en/live/getting-started/quick-start.html) and Zencoder also
`
`uses H.264 (https://support.brightcove.com/zencoder-encoding-settings-h264) and
`
`Mediacoder is a H264 encoder (https://www.brightcove.com/en/blog/2009/08/h264-
`
`encoding-using-mediacoder). On information and belief, all of the Accused
`
`Instrumentalities deliver “adaptive bitrate streaming” to client devices.
`
`(https://www.brightcove.com/en/zencoder.)
`
`48.
`
`The Accused Instrumentalities determine a parameter of at least a portion
`
`of a video data block. As shown below, examples of such parameters include bitrate (or
`
`max video bitrate) and resolution parameters. Different parameters correspond with
`
`different end applications. H.264 provides for multiple different ranges of such
`
`parameters, each included in the “profiles” and “levels” defined by the H.264 standard.
`
`See http://www.axis.com/files/whitepaper/wp_h264_31669_en_0803_lo.pdf at 5:
`
`24
`
`
`
`Case 1:17-cv-01519-JFB-SRF Document 8 Filed 12/01/17 Page 25 of 76 PageID #: 346
`
`See https://en.wikipedia.org/wiki/H.264/MPEG-4_AVC:
`
`49.
`
`A video data block is organized by the group of pictures (GOP) structure,
`
`which is a “collection of s
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