Context: Lawyers are constantly testing the limits of the Unified Patent Court’s (UPC) willingness to order the production of material that might be used as evidence (see, e.g., item 5 of ip fray‘s August 6, 2024 UPC roundup).
What’s new: On Sunday (October 20, 2024), the Mannheim Local Division’s (LD) Judge-rapporteur Dirk Boettcher (“Böttcher” in German) denied three parallel discovery motions brought by plaintiffs DISH and Sling TV in a dispute over adult content streaming services. Defendants Aylo and Brockwell Group do not have to produce information on their use of content distribution networks (CDNs), much less the source code of certain media players. Judge Boettcher rejected the argument that in order to obtain further evidence the plaintiffs would have to take paid subscriptions to additional Aylo/Brockwell streaming services. Before those discovery motions could hypothetically succeed, the defendants will get to respond to certain allegations in their rejoinder. The relevance of the information sought, beyond a mere fishing expedition, is unclear.
Direct impact: The plaintiffs’ discovery requests may very well be deemed overreaching even when they are not premature, but that will depend on the arguments raised by defendants in their forthcoming rejoinder. It is rather unclear whether the information sought will ever be outcome-determinative.
Wider ramifications: Over time the UPC’s Court of Appeal (CoA) will draw the line between reasoned discovery requests and attempted fishing expeditions.
DISH & Sling TV v. Aylo & Brockwell is arguably the juiciest UPC case pending at the moment. The accused services are dozens of adult content streaming sites, listed in the (German-language) orders discussed in this article.
The patent-in-suit, EP2479680 (“Method for presenting rate-adaptive streams”), is about streaming technology and, therefore, content-neutral.
Streaming services are increasingly the target of patent assertions. In Nokia v. Amazon, a German injunction over devices implementing a particular video codec (September 20, 2024 ip fray article) is presently being enforced as ip fray reported on LinkedIn. By contrast, DISH v. Aylo is about streaming services, and the UPC will have to clarify (if not in this case, then sooner or later in another) some fundamental questions, also with respect to the territoriality of certain alleged infringements. If devices infringe, they typically do so directly, but allegations against streaming services often involve indirect infringement only.
DISH and Sling filed three separate discovery motions, and Judge Boettcher ruled on all of them yesterday:
- They want to know which content delivery networks (CDNs) the defendants have been using for the provision of the accused services (going back to August 2019 when the patent-in-suit was published); where the relevant CDN servers are located; whether the video files stored on the CDNs’ servers are partitioned into multiple files; and how they are encoded.
- There is also another discovery request particularly about how the content is encoded. That one may overlap with the first one.
- And they want the source code of the media player plugins for Google Chrome, Microsoft Edge and (Apple’s) Safari that the defendants use.
Judge Boettcher denied all three motions. It would not be surprising, however, to see the plaintiffs renew their motions upon review of the defendants’ rejoinder. While the orders (1, 2, 3) also express doubts about whether those requests are proportionate, part of the reason for which they were rejected is that they were deemed premature. There is a possibility that the case will ultimately be resolved on the evidence that is already before the court, and on claim construction, which is disputed between the parties.
The defendants deny that the streaming content in question is encoded with particular bit rates and stored in so-called streamlets. Those defensive arguments could be dispositive regardless of the additional evidence DISH and Sling TV wanted to obtain.
The plaintiffs provided some evidence that they obtained with the help of Charles Web Debugging Proxy. That service is described on its website as follows:
“Charles is an HTTP proxy / HTTP monitor / Reverse Proxy that enables a developer to view all of the HTTP and SSL / HTTPS traffic between their machine and the Internet. This includes requests, responses and the HTTP headers (which contain the cookies and caching information).”
In other words, it’s about intercepting data traffic for the purpose being able to analyze it. That’s what they did for a couple of Aylo’s streaming services, but not for the dozens of services they are accusing of infringement. Judge Boettcher is not sure the court will even have to look at each streaming service separately.
The plaintiffs argued that they shouldn’t have to take additional paid subscriptions to Aylo content offerings, but the defendants noted that they actually have more subscriptions based on the evidence they provided in a parallel UK proceeding. In any event, Judge Boettcher does not consider it necessarily unreasonable that Aylo may have to take some more subscriptions in order to obtain further evidence.
It’s difficult to assess the merits of the case just on these court rulings on DISH and Sling TV’s discovery motions. It’s possible that their lawyers just want to leave no stone unturned to have the strongest possible case. But it’s also possible that they brought those discovery requests because they realized, after seeing Aylo’s answer to the complaint, that this case is an uphill battle for them.
Should the Mannheim LD conclude after the trial that the additional evidence sought by the plaintiffs is reasonably required, the case could be delayed beyond the UPC’s usual timelines. But a hypothetical possibility of some evidence becoming relevant was clearly deemed insufficient to order further document production. It would not be surprising now to see the plaintiffs renew those motions upon their receipt of the defendants’ rejoinder, and if they lose the case, the denial of those discovery requests may have to be addressed by the CoA.
The plaintiffs are represented by A&O Shearman (counsel of record: Denise Benz), and the defendants by Bardehle Pagenberg (counsel of record: Professor Tilman Mueller-Stoy) and (at least one of them) by Mishcon de Reya (Conor McLaughlin).