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Case 1:18-cv-01512-LPS-CJB Document 1 Filed 07/06/18 Page 1 of 144 PageID #: 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
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`Case 6:18-cv-333
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`JURY TRIAL DEMANDED
`
`
`BLUE SPIKE, LLC,
`
`
`
`v.
`
`DISH NETWORK CORPORATION,
`DISH NETWORK L.L.C., AND DISH
`NETWORK SERVICE L.L.C.,
`
`
`
`Plaintiff,
`
`Defendants.
`
`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiff Blue Spike, LLC (“Blue Spike” or “Plaintiff”) files this complaint
`
`against the above-named Defendants (collectively “Defendant” or “DISH”), alleging 17
`
`counts of infringement of the following 12 Patents-in-Suit:
`
`1.
`Reissued U.S. Patent RE44,222E1, titled “Methods, systems and devices
`for packet watermarking and efficient provisioning of bandwidth,” (the ’222 Patent).
`
`2.
`Reissued U.S. Patent RE44,307, titled “Methods, systems and devices for
`packet watermarking and efficient provisioning of bandwidth,” (the ’307 Patent).
`
`
`3.
`U.S. Patent 7,287,275B2, titled “Methods, systems and devices for packet
`watermarking and efficient provisioning of bandwidth” (the ’275 Patent).
`
`4.
`U.S. Patent 8,473,746, titled “Methods, systems and devices for packet
`watermarking and efficient provisioning of bandwidth” (the ’746 Patent).
`
`5.
`U.S. Patent 8,224,705, titled “Methods, systems and devices for packet
`watermarking and efficient provisioning of bandwidth” (the ’705 Patent).
`
`
`6.
`Patent).
`
`
`7.
`Patent).
`
`8.
`Patent).
`
`
`
`U.S. Patent 7,475,246, titled “Secure personal content server” (the ’246
`
`U.S. Patent 8,739,295B2, titled “Secure personal content server” (the ’295
`
`U.S. Patent 9,021,602, titled “Data Protection and Device” (the ’602
`
`1
`
`DISH-Blue Spike-408
`Exhibit 1019, Page 0001
`
`

`

`Case 1:18-cv-01512-LPS-CJB Document 1 Filed 07/06/18 Page 2 of 144 PageID #: 2
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`U.S. Patent 9,104,842, titled “Data Protection and Device” (the ’842
`
`U.S. Patent 9,934,408, titled “Secure personal content server” (the ’408
`
`9.
`Patent).
`10.
`Patent).
`11.
`U.S. Patent 7,159,116B2, titled “Systems, methods and devices for trusted
`transactions” (the ’116 Patent).
`12.
`U.S. Patent 8,538,011B2, titled “Systems, methods and devices for trusted
`transactions” (the ’011 Patent).
`
`See Exhibits 2–13.
`
`NATURE OF THE SUIT
`
`1.
`
`This is a claim for patent infringement arising under the patent laws of the United
`
`States, Title 35 of the United States Code.
`
`PARTIES
`
`2.
`
`Plaintiff Blue Spike, LLC is a Texas limited liability company and has its
`
`headquarters and principal place of business at 1820 Shiloh Road, Suite 1201-C, Tyler,
`
`Texas 75703. Blue Spike, LLC is the assignee of the exclusive license of the Patents-in-
`
`Suit, and has ownership of all substantial rights in the Patents-in-Suit, including the rights
`
`to grant sublicenses, to exclude others from using it, and to sue and obtain damages and
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`other relief for past and future acts of patent infringement.
`
`3.
`
`On information and belief, Defendant Dish Network Corporation is a corporation
`
`established under the laws of the State of Nevada, with a principal place of business at
`
`9601 S. Meridian Boulevard, Englewood, Colorado 80112. Defendant can be served
`
`through its registered agent, CSC Services of Nevada, Inc., located at 2215-B
`
`Renaissance Drive, Las Vegas, Nevada 89119.
`
`4.
`
`On information and belief, Defendant Dish Network L.L.C. is established under
`
`the laws of the State of Colorado, with a principal place of business at 9601 S. Meridian
`
`Boulevard, Englewood, Colorado 80112. Defendant can be served through its registered
`
`
`
`2
`
`DISH-Blue Spike-408
`Exhibit 1019, Page 0002
`
`

`

`Case 1:18-cv-01512-LPS-CJB Document 1 Filed 07/06/18 Page 3 of 144 PageID #: 3
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`agent, Corporation Service Company d/b/a CSC - Lawyers Incorporating Service
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`Company, located at 211 E. 7th Street, Suite 620, Austin, Texas 78701.
`
`5.
`
`On information and belief, Defendant Dish Network Service L.L.C. is established
`
`under the laws of the State of Colorado, with a principal place of business at 9601 S.
`
`Meridian Boulevard, Englewood, Colorado 80112. Defendant can be served through its
`
`registered agent, Corporation Service Company d/b/a CSC - Lawyers Incorporating
`
`Service Company, located at 211 E. 7th Street, Suite 620, Austin, Texas 78701.
`
`JURISDICTION AND VENUE
`
`6.
`
`This lawsuit is a civil action for patent infringement arising under the patent laws
`
`of the United States, 35 U.S.C. § 101 et seq. The Court has subject-matter jurisdiction
`
`pursuant to 28 U.S.C. §§ 1331, 1332, 1338(a), and 1367.
`
`7.
`
`Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b)–(c) and
`
`1400(b) because Defendant has a regular and established place of business in this
`
`District. See, 28 U.S.C § 1400 (b); TC Heartland LLC v. Kraft Foods Group Brands LLC,
`
`137 S. Ct. 1514, 1521 (2017); In re Cray Inc., 871 F.3d 1355, 1360–4 (Fed. Cir. 2017).
`
`8.
`
`The Court has personal jurisdiction over Defendant and venue is proper for the
`
`following reasons: (1) Defendant has committed acts of patent infringement and
`
`contributed to and induced acts of patent infringement by others in this District by its
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`offering of infringing products and services and providing infringing products and
`
`services in the homes and businesses in this District; (2) Defendant regularly does
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`business or solicits business in this District by its offering of infringing products and
`
`services and providing infringing products and services in the homes and businesses,
`
`thereby creating a physical, geographical location in the district from which the business
`
`
`
`3
`
`DISH-Blue Spike-408
`Exhibit 1019, Page 0003
`
`

`

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`of Defendant is carried out, including its preferred retailers in this District, including
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`Single Source Satellite located in Plano, Texas and Solis Satellite and Communications in
`
`Longview, Texas; (3) Defendant engages in other persistent courses of conduct and
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`derives substantial revenue by its offering of infringing products and services and
`
`providing infringing products and services in the homes and businesses of this District;
`
`and (4) Defendant has purposefully established substantial, systematic, and continuous
`
`contacts with this District and should reasonably expect to be haled into court here by its
`
`offering of infringing products and services and providing infringing products and
`
`services in the homes and businesses in this District. See Exhibit 1 (screen shot of
`
`Defendant offering “DISH TV In Tyler, Texas” for Tyler, Texas); Exhibits A and B
`
`(screen shots of retail locations in Plano and Longview, Texas).
`
`FACTUAL BACKGROUND
`
`9.
`
`Protection of intellectual property is a prime concern for creators and publishers
`
`of digitized copies of copyrightable works, such as musical recordings, movies, video
`
`games, and computer software. Blue Spike founder Scott Moskowitz pioneered—and
`
`continues to invent—technology that makes such protection possible.
`
`10.
`
`Blue Spike is a company focused on innovation with research and development.
`
`Blue Spike does not make a service that competes directly with Defendant, but Blue
`
`Spike has licensed its pioneering patents to competitors of Defendant.
`
`11.
`
`Blue Spike is a practicing entity, just not in the same field as Defendant. For
`
`instance, Blue Spike provides pre-release tracking technology for audio, like new music
`
`artists’ singles, that may be sent to various radio stations for promotional purposes. This
`
`type of tracking helps an artist know whether a radio station improperly posts the song
`
`
`
`4
`
`DISH-Blue Spike-408
`Exhibit 1019, Page 0004
`
`

`

`Case 1:18-cv-01512-LPS-CJB Document 1 Filed 07/06/18 Page 5 of 144 PageID #: 5
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`for sale rather than simply playing it as a “demo only.” Blue Spike also has other service
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`offerings at bluesspike.com.
`
`12. Moskowitz is a senior member of the Institute of Electrical and Electronics
`
`Engineers (IEEE), a member of the Association for Computing Machinery, and the
`
`International Society for Optics and Photonics (SPIE). As a senior member of the IEEE,
`
`Moskowitz has peer-reviewed numerous conference papers and has submitted his own
`
`publications.
`
`13. Moskowitz is an inventor on more than 110 patents, including forensic
`
`watermarking, signal abstracts, data security, software watermarks, service license keys,
`
`deep packet
`
`inspection,
`
`license code for authorized software and bandwidth
`
`securitization.
`
`14.
`
`The National Security Agency (NSA) even took interest in his work after he filed
`
`one of his early patent applications. The NSA marked the application “classified” under a
`
`“secrecy order” while it investigated his pioneering innovations and their impact on
`
`national security.
`
`15.
`
`As an industry trailblazer, Moskowitz has been a public figure and an active
`
`author on technologies related to protecting and identifying software and multimedia
`
`content. A 1995 New York Times article—titled “TECHNOLOGY: DIGITAL
`
`COMMERCE; 2 plans for watermarks, which can bind proof of authorship to electronic
`
`works”—recognized Moskowitz’s company as one of two leading software start-ups in
`
`this newly created field. Forbes also interviewed Moskowitz as an expert for “Cops
`
`Versus Robbers in Cyberspace,” a September 9, 1996 article about the emergence of
`
`
`
`5
`
`DISH-Blue Spike-408
`Exhibit 1019, Page 0005
`
`

`

`Case 1:18-cv-01512-LPS-CJB Document 1 Filed 07/06/18 Page 6 of 144 PageID #: 6
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`digital watermarking and rights-management technology. He has also testified before the
`
`Library of Congress regarding the Digital Millennium Copyright Act.
`
`16. Moskowitz has spoken to the RSA Data Security Conference, the International
`
`Financial Cryptography Association, Digital Distribution of the Music Industry, and
`
`many other organizations about the business opportunities that digital watermarking
`
`creates. Moskowitz also authored So This Is Convergence?, the first book of its kind
`
`about secure digital-content management. This book has been downloaded over a million
`
`times online and has sold thousands of copies in Japan, where Shogakukan published it
`
`under the name Denshi Skashi, literally “electronic watermark.” Moskowitz was asked to
`
`author the introduction to Multimedia Security Technologies for Digital Rights
`
`Management, a 2006 book explaining digital-rights management. Moskowitz authored a
`
`paper for the 2002 International Symposium on Information Technology, titled “What is
`
`Acceptable Quality in the Application of Digital Watermarking: Trade-offs of Security,
`
`Robustness and Quality.” He also wrote an invited 2003 article titled “Bandwidth as
`
`Currency” for the IEEE Journal, among other publications.
`
`17. Moskowitz and Blue Spike continue to invent technologies that protect
`
`intellectual property from unintended use or unauthorized copying.
`
`THE ACCUSED PRODUCTS AND SERVICES
`
`18.
`
`Defendant makes, uses, offers for sale and sells in the U.S. products, systems,
`
`and/or services that infringe the Patents-in-Suit, including, but not limited to, the
`
`following examples:
`
`19.
`
`Defendant makes, uses, offers for sale and sells its DISH Fiber Internet products
`
`and services (“DISH Fiber Internet Accused Products and Services”).
`
`
`
`6
`
`DISH-Blue Spike-408
`Exhibit 1019, Page 0006
`
`

`

`Case 1:18-cv-01512-LPS-CJB Document 1 Filed 07/06/18 Page 7 of 144 PageID #: 7
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`Figure 1 – Screen shot of Defendant offering of DISH Fiber Internet of the DISH Business
`webpage, as viewed at https://www.dish.com/business/fiber/.
`
`20.
`
`Defendant’s DISH Fiber Internet Accused Products and Services use methods,
`
`devices, and systems taught by Blue Spike’s six (6) asserted patents below:
`
`
`
`Count 1 – U.S. Patent RE 44,222E1.
`
`Count 2 – US Patent RE 44,307.
`
`Count 3 – U.S. Patent 7, 287,275B2.
`
`Count 4 – U.S. Patent 8,473,746B2.
`
`Count 5 – U.S. Patent 7,159,116B2.
`
`Count 6 – U.S. Patent 8,538,011B2.
`
`
`
`7
`
`DISH-Blue Spike-408
`Exhibit 1019, Page 0007
`
`

`

`Case 1:18-cv-01512-LPS-CJB Document 1 Filed 07/06/18 Page 8 of 144 PageID #: 8
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`21.
`
`Defendant also makes, uses, offers for sale and sells its DISH TV systems,
`
`products and services (“DISH TV Accused Products and Services,” and collectively with
`
`the DISH Fiber Internet Accused Products and Services, “Accused Products and
`
`Services”).
`
`Figure 2 – Screen shot of Defendant offering of DISH TV Accused Products and Services, as
`viewed at https://www.dish.com/ (See Exhibit C).
`
`22.
`
`Defendant’s DISH TV Accused Products and Services use methods, devices, and
`
`systems taught by Blue Spike’s eleven (11) asserted patents below:
`
`
`
`Count 7 – U.S. Patent RE 44,222E1,
`
`Count 8 – U.S. Patent RE 44,307,
`
`Count 9 – U.S. Patent 7, 287, 275B2,
`
`Count 10 – U.S. Patent 8,224,705
`
`Count 11 – U.S. Patent 7,475,246,
`
`Count 12 – U.S. Patent 8,739,295,
`
`Count 13 – U.S. Patent 9,021,602,
`
`
`
`8
`
`DISH-Blue Spike-408
`Exhibit 1019, Page 0008
`
`

`

`Case 1:18-cv-01512-LPS-CJB Document 1 Filed 07/06/18 Page 9 of 144 PageID #: 9
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`Count 14 – U.S. Patent 9,104,842.
`
`Count 15 – U.S. Patent 9,934,408.
`
`Count 16 – U.S. Patent 7,15,9116B2.
`
`Count 17 – U.S. Patent 8,538,011B2.
`
`23.
`
`Defendant has not sought or obtained a license for any of Blue Spike’s patented
`
`technologies. This creates a competitive disadvantage to other Companies, like Apple,
`
`Acer, Dell, IBM, Samsung, and Sony to name some large companies, who recognized the
`
`value and novelty Blue Spike’s patents provide to society.
`
`24.
`
`Each count of patent infringement contained herein is accompanied by a
`
`representative claim. See, Atlas IP LLC v. P. Gas and Electric Co., 15-CV-05469-EDL,
`
`2016 WL 1719545, at *5 (N.D. Cal. Mar. 9, 2016) (“Iqbal and Twombly only require
`
`Plaintiff to state a plausible claim for relief, which can be satisfied by adequately
`
`pleading infringement of one claim.”).
`
`INFRINGEMENT OF U.S. PATENT U.S. Patent RE 44,222E1
`
`COUNT 1:
`
`25. Blue Spike incorporates by reference the paragraphs above and below.
`
`26. The ’222 Patent is presumed valid, enforceable, and was duly and legally issued by
`
`the United States Patent and Trademark Office.
`
`27.
`
`These claims are directed
`
`to a non-abstract
`
`improvement
`
`in computer
`
`functionality, rather than a method of organizing human activity or an idea of itself. See
`
`Aatrix Software, Inc. v. Green Shades Software, Inc., 2017-1452 (Fed. Cir. Feb. 14, 2018).
`
`28.
`
`The specification of the ’222 Patent explains both the problem in the prior art and
`
`the benefit of the computer-implemented invention. This difference is not “well known”
`
`or “conventional.” A human cannot perform these tasks.
`
`
`
`9
`
`DISH-Blue Spike-408
`Exhibit 1019, Page 0009
`
`

`

`Case 1:18-cv-01512-LPS-CJB Document 1 Filed 07/06/18 Page 10 of 144 PageID #: 10
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`29. Without a license or permission from Blue Spike, Defendant has infringed and
`
`continues to infringe on one or more claims of the ’222 Patent—directly, contributorily,
`
`or by inducement—by importing, making, using, offering for sale, or selling products and
`
`devices that embody the patented invention, including, without limitation, one or more of
`
`the DISH Fiber Internet Accused Products and Services, in violation of 35 U.S.C. § 271.
`
`Direct Infringement.
`
`30. Defendant has been and now is directly infringing by, among other things,
`
`practicing all the elements of the ’222 Patent and/or directing, controlling, and obtaining
`
`benefits from its subsidiaries, partners, distributors, and retailers practicing all the steps
`
`of the ’222 Patent. See Joy Techs., Inc. v. Flakt, Inc., 6 F.3d 770, 775 (Fed.Cir.1993) (“A
`
`method claim is directly infringed only by one practicing the patented method.”); see also
`
`35 U.S.C. § 271 (2006). Specifically, Defendant controls its DISH Fiber Internet Accused
`
`Products and Services; offers it for sale and sells the DISH Fiber Internet Accused
`
`Products and Services, also it has partnered with numerous resellers to offer for sale and
`
`sell the DISH Fiber Internet Accused Products and Services in the United States, it
`
`generates revenue from sales of its DISH Fiber Internet Accused Products and Services in
`
`the United States to U.S. customers via such outlets, and has attended trade shows in the
`
`United States where it has demonstrated the DISH Fiber Internet Accused Products and
`
`Services.
`
`31. For instance, the DISH Fiber Internet Accused Products and Services infringe claim
`
`1 of the ’222 Patent which recites:
`
`1. A process for transmitting a stream of data, comprising:
`receiving a stream of data;
`organizing the stream of data into a plurality of packets;
`
`
`
`10
`
`DISH-Blue Spike-408
`Exhibit 1019, Page 0010
`
`

`

`Case 1:18-cv-01512-LPS-CJB Document 1 Filed 07/06/18 Page 11 of 144 PageID #: 11
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`generating a packet watermark associated with the stream
`of data wherein the packet watermark indicates the integrity
`of at least one of the plurality of packets;
`combining the packet watermark with each of the plurality
`of packets to form watermarked packets; and transmitting
`at least one of the watermarked packets across a network.
`
`32. Defendant provides DISH Fiber Internet Accused Products and Services instituting
`
`systems and processes for transmitting streams of data, wherein one or more routers
`
`provision data between routers, switches and consumer end-point devices (such as
`
`computers).
`
`33. Defendant provides DISH Fiber Internet Accused Products and Services including
`
`Managed Wi-Fi instituting routers, wherein the one or more routers organize the stream
`
`of data in to a plurality of packets. Also, one or more routers generate a packet
`
`watermark that signifies priority or Quality of Service (QoS) associated with the packets.
`
`34. Defendant’s Managed Wi-Fi allows one or more routers to receive a stream of data
`
`packets from one or more consumer end-points and from other routers. The packets are
`
`classified and differentiated based on the bits watermarked into the packet’s IP header.
`
`Packets marked constitute watermarked packets, wherein other bits define the quality of
`
`service assigned to the packets.
`
`35. Defendant not only designed the DISH Fiber Internet Accused Products and
`
`Services to practice the claimed invention, but also instructed its customers to use the
`
`DISH Fiber Internet Accused Products and Services in an infringing way.
`
`36. Circumstantial evidence is not only sufficient, but may also be more certain,
`
`satisfying and persuasive than direct evidence. Although the evidence of infringement is
`
`circumstantial, that does not make it any less credible or persuasive. “A finding of
`
`
`
`11
`
`DISH-Blue Spike-408
`Exhibit 1019, Page 0011
`
`

`

`Case 1:18-cv-01512-LPS-CJB Document 1 Filed 07/06/18 Page 12 of 144 PageID #: 12
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`infringement can rest on as little as one instance of the claimed method being performed
`
`during the pertinent time period.” Joy Techs., Inc. v. Flakt, Inc., 6 F.3d at 775.
`
`Indirect Infringement.
`
`37. Defendant has been and now is indirectly infringing by way of inducing
`
`infringement by others and/or contributing to the infringement by others of the ’222
`
`Patent in the State of Texas, in this judicial district, and elsewhere in the United States,
`
`by, among other things, making, using, importing, offering for sale, and/or selling,
`
`without license or authority, infringing services for use in systems that fall within the
`
`scope of one or more claims of the ’222 Patent. Such products include, without
`
`limitation, one or more of the DISH Fiber Internet Accused Products and Services. By
`
`making, using, importing offering for sale, and/or selling such services, Defendant
`
`injured Blue Spike and is thus liable to Blue Spike for infringement of the ’222 Patent
`
`under 35 U.S.C. § 271.
`
`38. Defendant actively induces infringement under Title 35 U.S.C. § 271(b). Defendant
`
`performed actions that induced infringing acts that Defendant knew or should have
`
`known would induce actual infringements. See Manville Sales Corp. v. Paramount Sys.,
`
`Inc., 917 F.2d 544, 553 (Fed.Cir.1990), quoted in DSU Med. Corp. v. JMS Co., 471 F.3d
`
`1293, 1306 (Fed.Cir.2006) (en banc in relevant part). “[A] finding of inducement requires
`
`a threshold finding of direct infringement—either a finding of specific instances of direct
`
`infringement or a finding that the accused products necessarily infringe.” Ricoh, 550 F.3d
`
`at 1341 (citing ACCO Brands, Inc. v. ABA Locks Manufacturer Co., 501 F.3d 1307, 1313,
`
`(Fed. Cir. 2007).
`
`
`
`12
`
`DISH-Blue Spike-408
`Exhibit 1019, Page 0012
`
`

`

`Case 1:18-cv-01512-LPS-CJB Document 1 Filed 07/06/18 Page 13 of 144 PageID #: 13
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`39. Plaintiff will rely on direct and/or circumstantial evidence to prove the intent
`
`element. See Fuji Photo Film Co. v. Jazz Photo Corp., 394 F.3d 1368, 1377 (Fed. Cir.
`
`2005) (“A patentee may prove intent through circumstantial evidence.”); Water Techs.
`
`Corp. v. Calco, Ltd., 850 F.2d 660, 668 (Fed. Cir. 1988) (“While proof of intent is
`
`necessary, direct evidence is not required; rather, circumstantial evidence may suffice.”).
`
`40. Defendant took active steps to induce infringement, such as advertising an
`
`infringing use, which supports a finding of an intention for the accused product to be used
`
`in an infringing manner. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545
`
`U.S. 913, 932, 125 S. Ct. 2764, 162 L. Ed. 2d 781 (2005) (explaining that the
`
`contributory infringement doctrine “was devised to identify instances in which it may be
`
`presumed from distribution of an article in commerce that the distributor intended the
`
`article to be used to infringe another’s patent, and so may justly be held liable for that
`
`infringement”).
`
`41. “[A] pre-suit knowledge requirement for induced infringement would lead to
`
`absurd results.” Uniloc USA, Inc. v. Avaya Inc., Case 6:15-cv-1158, Dkt. No 48, at *8
`
`(E.D. Tex. May 13, 2016).
`
`42.
`
`It is not necessary for Plaintiff to indicate specific customers directly infringing the
`
`Patents-in-Suit through the use of Defendant’s products and services. See In re Bill of
`
`Lading Transmission and Processing System Pat. Litig., 681 F.3d 1323, 1336 (Fed. Cir.
`
`2012); see also Atwater Partners of Tex. LLC v. AT & T, Inc., Case 2:10-cv-175, 2011 WL
`
`1004880, at *3 (E.D. Tex. Mar. 18, 2011).
`
`
`
`13
`
`DISH-Blue Spike-408
`Exhibit 1019, Page 0013
`
`

`

`Case 1:18-cv-01512-LPS-CJB Document 1 Filed 07/06/18 Page 14 of 144 PageID #: 14
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`Induced Infringement.
`
`43. Defendant induces infringement of its customers, who use the infringing
`
`functionality, and its partners and resellers, who offer for sale and sell the DISH Fiber
`
`Internet Accused Products and Services.
`
`44. Defendant induces end users of the DISH Fiber Internet Accused Products and
`
`Services to infringe. Defendant induces its customers to infringe at the very least by
`
`providing information on how to access the Internet via its router system.
`
`45. Defendant also provides customers other incentives to use the infringing services,
`
`such as through discounted offers. See Exhibit C; see Power Integrations v. Fairchild
`
`Semiconductor, 843 F.3d at 1335 (“[W]e have affirmed induced infringement verdicts
`
`based on circumstantial evidence of inducement (e.g., advertisements, user manuals)
`
`directed to a class of direct infringers (e.g., customers, end users) without requiring hard
`
`proof that any individual third-party direct infringer was actually persuaded to infringe by
`
`that material.”).
`
`46. Defendant had knowledge of the ’222 Patent at least as early as the service of this
`
`complaint, and has known since then that the DISH Fiber Internet Accused Products and
`
`Services infringe the Patents-in-Suit. Nevertheless, Defendant has continued to induce its
`
`customers and partners to infringe. It does so through its instructions accompanying the
`
`DISH Fiber Internet Accused Products and Services, its technical support, demonstrations
`
`and tutorials. Thus, Defendant is liable for infringement of one or more claims of the ’222
`
`Patent by actively inducing infringement.
`
`
`
`14
`
`DISH-Blue Spike-408
`Exhibit 1019, Page 0014
`
`

`

`Case 1:18-cv-01512-LPS-CJB Document 1 Filed 07/06/18 Page 15 of 144 PageID #: 15
`
`Contributory Infringement.
`
`47. Defendant is also a contributory infringer. In addition to proving an act of direct
`
`infringement, plaintiff contends that defendant knew that the combination for which its
`
`components were especially made was both patented and infringing.
`
`48. The contributory infringement doctrine was devised to identify instances in which it
`
`may be presumed from distribution of an article in commerce that the distributor intended
`
`the article to be used to infringe another’s patent, and so may justly be held liable for that
`
`infringement. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913,
`
`932, 125 S. Ct. 2764, 162 L. Ed. 2d 781(2005).
`
`49. Defendant contributed to the infringement by providing the DISH Fiber Internet
`
`Accused Products and Services to its partners and resellers, who offer for sale and sell the
`
`DISH Fiber Internet Accused Products and Services.
`
`50. The accused functionality in the Defendant’s DISH Fiber Internet Accused Product
`
`has no substantial non-infringing uses. See, e.g., Lucent Techs., Inc. v. Gateway, Inc., 580
`
`F.3d 1301 (Fed. Cir. (Cal.) 2009) (holding that the substantial non-infringing uses
`
`element of a contributory infringement claim applies to an infringing feature or
`
`component). An “infringing feature” of a product does not escape liability simply because
`
`the product as a whole has other non-infringing uses. See id. at 1321.
`
`51. Defendant is liable as contributory infringer of one or more claims of the ’222
`
`Patent under 35 U.S.C. § 271. See Soverain Software LLC v. Oracle Corp., Case 6:12-cv-
`
`145, Dkt. 54, at *7 (E.D. Tex. Mar. 21, 2014); Tierra Intelectual Borinquen v. ASUS,
`
`2014 WL 1233040, at *2 (E.D. Tex. Mar. 24, 2014) (“[P]re-suit knowledge is not
`
`required to successfully plead contributory infringement.”);
`
`
`
`15
`
`DISH-Blue Spike-408
`Exhibit 1019, Page 0015
`
`

`

`Case 1:18-cv-01512-LPS-CJB Document 1 Filed 07/06/18 Page 16 of 144 PageID #: 16
`
`Plaintiff Suffered Damages.
`
`52. Defendant’s acts of infringement of the ’222 Patent have caused damage to Blue
`
`Spike, and Blue Spike is entitled to recover from Defendant the damages sustained as a
`
`result of Defendant’s wrongful acts in an amount described in the prayer below.
`
`Defendant’s infringement of Blue Spike’s exclusive rights under the ’222 Patent will
`
`continue to damage Blue Spike, causing it irreparable harm, for which there is no
`
`adequate remedy at law, warranting an injunction from the Court.
`
`53. On information and belief, the infringement of the ’222 Patent by Defendant has
`
`been willful and continues to be willful. Defendant had knowledge of the ’222 Patent,
`
`including but not limited to at least one or more of the following events:
`
`
`
`a.
`
`The filing of Blue Spike’s complaint against Defendant in the Eastern
`
`District of Texas.
`
`
`
`
`
`b.
`
`c.
`
`infringers.
`
`
`
`
`
`d.
`
`e.
`
`In the course of its due diligence and freedom to operate analyses.
`
`News coverage of Blue Spike’s enforcement of this patent against other
`
`Blog postings about Defendant being a serial infringer of patent rights.
`
`Part of the due diligence investigation performed for SEC filings.
`
`54. On information and belief, Defendant has had at least had constructive notice of the
`
`’222 Patent by operation of law. Plaintiff believes the evidence provided shows
`
`Defendant’s willful infringement is egregious. Even so, Plaintiff is not required to prove
`
`egregiousness in its pleadings. “Even after Halo, broader allegations of willfulness,
`
`without a specific showing of egregiousness, are sufficient to withstand a motion to
`
`dismiss.” Shire ViroPharma Inc. v. CSL Behring LLC, CV 17-414, 2018 WL 326406, at
`
`
`
`16
`
`DISH-Blue Spike-408
`Exhibit 1019, Page 0016
`
`

`

`Case 1:18-cv-01512-LPS-CJB Document 1 Filed 07/06/18 Page 17 of 144 PageID #: 17
`
`*3 (D. Del. Jan. 8, 2018) (denying a defendant’s motion to dismiss and noting
`
`“Defendants’ argument seems to conflate the standards for pleading willful infringement
`
`with the standards for proving willful infringement.”).
`
`55. A jury is capable, and indeed required, to examine facts that plausibly support a
`
`finding of willful infringement. Here, the facts provide “a sufficient predicate” to support
`
`a jury’s finding of willfulness. See Barry v. Medtronic, Inc., 250 F. Supp. 3d 107, 111
`
`(E.D. Tex. 2017) (listing a series of nine-factors utilized in the Federal Circuit, including
`
`whether the infringer knew of the other’s patent protection and investigated, the
`
`infringers behavior, defendant’s size and financial condition, closeness of the case,
`
`duration of misconduct, and remedial action taken by defendant once it was notified of
`
`infringement, as factors that are “a sufficient predicate” of fact to support a jury’s finding
`
`of willfulness).
`
`INFRINGEMENT OF U.S. PATENT US Patent RE 44,307
`
`COUNT 2:
`
`56. Blue Spike incorporates by reference the paragraphs above and below.
`
`57. The ’307 Patent is presumed valid, enforceable, and was duly and legally issued by
`
`the United States Patent and Trademark Office.
`
`58.
`
`These claims are directed
`
`to a non-abstract
`
`improvement
`
`in computer
`
`functionality, rather than a method of organizing human activity or an idea of itself. See
`
`Aatrix Software, Inc. v. Green Shades Software, Inc., 2017-1452 (Fed. Cir. Feb. 14, 2018).
`
`59.
`
`The specification of the ’307 Patent explains both the problem in the prior art and
`
`the benefit of the computer-implemented invention. This difference is not “well known”
`
`or “conventional.” A human cannot perform these tasks.
`
`
`
`17
`
`DISH-Blue Spike-408
`Exhibit 1019, Page 0017
`
`

`

`Case 1:18-cv-01512-LPS-CJB Document 1 Filed 07/06/18 Page 18 of 144 PageID #: 18
`
`60. Without a license or permission from Blue Spike, Defendant has infringed and
`
`continues to infringe on one or more claims of the ’307 Patent—directly, indirectly,
`
`contributorily, or by inducement—by importing, making, using, offering for sale, or
`
`selling products and devices that embody the patented invention, including, without
`
`limitation, one or more of the DISH Fiber Internet Accused Products and Services, in
`
`violation of 35 U.S.C. § 271.
`
`Direct Infringement.
`
`61. Defendant has been and now is directly infringing by, among other things,
`
`practicing all the elements of the ’307 Patent and/or directing, controlling, and obtaining
`
`benefits from its subsidiaries, partners, distributors, and retailers practicing all the steps
`
`of the ’307 Patent. See Joy Techs., Inc. v. Flakt, Inc., 6 F.3d 770, 775 (Fed.Cir.1993) (“A
`
`method claim is directly infringed only by one practicing the patented method.”); see also
`
`35 U.S.C. § 271 (2006). Specifically, Defendant imports the DISH Fiber Internet Accused
`
`Products and Services into the United States; offers for sale and sells the DISH Fiber
`
`Internet Accused Products and Services via its own online store, has partnered with
`
`numerous resellers to offer for sale and sell the DISH Fiber Internet Accused Products
`
`and Services in the United States, generates revenue from sales of the DISH Fiber
`
`Internet Accused Products and Services to U.S. customers via such outlets, and has
`
`attended trade shows in the United States where it has demonstrated the DISH Fiber
`
`Internet Accused Products and Services.
`
`62. For instance, the DISH Fiber Internet Accused Products and Services infringe claim
`
`1 of the ’307 Patent which recites:
`
`d. A process
`comprising:
`
`for provisioning a stream of data,
`
`
`
`18
`
`DISH-Blue Spike-408
`Exhibit 1019, Page 0018
`
`

`

`Case 1:18-cv-01512-LPS-CJB Document 1 Filed 07/06/18 Page 19 of 144 PageID #: 19
`
`receiving a stream of data;
`organizing the stream of data into a packet flow comprising
`a plurality of packets;
`generating, using a processor, a packet watermark
`associated with the packet flow wherein the packet
`watermark enables discrimination between packet flows;
`combining, using a processor, the packet watermark with
`each of the plurality of packets to form watermarked
`packets; and
`provisioning at least one of the watermarked packets across
`a network.
`
`63. Defendant provides DISH Fiber Internet Accused Products and Services instituting
`
`systems and processes for transmitting streams of

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