条条道路通向ABR特许权使用费

IdeaHub和Helios Streaming 起诉 Crackle, Vudu, and Showtime Digital this autumn for infringing upon their DASH-related patents. While these suits percolate through the 系统, this leaves many larger DASH users wondering when they'll see a complaint while the rest of us wonder "what happens now?"

To answer the second question, I spoke with patent attorney David Long, who's the author of the 基本专利博客. David was not familiar with the DASH suits when I caught him while he was traveling, but helped guide me through the general alternatives available to the defendants. Any statements below not directly attributed to Long come from me, not him.

根据Long的说法, a typical patent infringement suit should take about 2 years to resolve, 禁止任何上诉. 如果进行审判, the case would be decided by a judge or jury who are not patent experts or even particularly technical.

根据Long的说法, one potentially attractive alternative is an inter partes review (IPR), 哪个更便宜, 快, and adjudicated by a panel of three administrative patent judges rather than a lay judge or jury. 知识产权有两个阶段. 第一个, you file a petition identifying the challenges to each claim(s) of the patent, to which the patent owner has 3 months to respond. 三个月后, the Patent Office must either dismiss the claim or "institute" the inter partes review upon a finding that the petitioner has a "reasonable likelihood" to prevail on at least one of the claims challenged in the patent. The Patent Office must rule on the case within 12 months (barring a "good cause" six-month extension) for a total duration of 18 months.

Note that the only issue adjudicated within an IPR is the patentability of the patent and associated claims, and then only issues raised under Section 102 (novelty) or Section 103 (non-obvious subject matter) of the Patent Act. So, you can't argue that your implementation isn't infringing in an IPR, 只知道专利权利要求是无效的. The initial petition must be supported by actual patents or other printed publications, or affidavits or declarations if the petitioner is relying upon expert opinions.

Here's the part where I freelance while Long provides reality checks. 当涉及到自适应流媒体, there's lots of prior art that precede the patents asserted by Helios Streaming, 都是在2011年7月之后发的吗. This goes back to Move Network's 2010 patent on adaptive streaming (US Patent 7,818,444)题为“仪器”, 系统, and method for multi-bitrate content streaming." Then, there's the Emblaze patent 6,389,473 on "Network media streaming." Then, of course, there's the Apple HTTP 在线直播 Specification published in November 2009.

In this case, prior art might show both that the Helios patents weren't novel and were obvious. Certainly, with adaptive streaming it seems that the big Aha! moment relates to conceiving a 系统 of segmented content and manifest files that enable the player to find and retrieve the segments; the rest is just implementation. 然而, here Long warns that both novelty and non-obvious findings are fact- and case-specific, and that the existence of prior art doesn't mean there weren't patent-worthy improvements or enhancements in the Helios patents. 沿着同样的路线, just because Apple published part of the HLS spec in 2009 doesn't mean that later Helios patents don't contain improvements that HLS now infringes upon.

同样值得注意的是，DISH网络, 谁拥有Move专利的权利, has asserted them against two other companies (one settled, one pending) and that Emblaze 起诉 Apple and lost on their patent. So even if these or other patents help invalidate the Helios patents, it doesn't mean they won't be used to sue other ABR streamers in other patent infringement cases. The bottom line is that it looks like we're going to have to pay the piper to deploy adaptive streaming, though at this point we don't know exactly who the piper is.

[This article first appeared in the November/December issue of 流媒体 magazine as "制作人的观点: 条条道路通向ABR特许权使用费."]

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