PublishedApril 4, 2018

April Madness Is Here

March Madness is over, with the Big Ten not taking home a championship.  (A sad day for Michigan fans like me.) But that’s okay—in April, the Big Ten Network has plenty to keep busy with.  Baseball, softball, tennis, track and field, rowing…

And patent lawsuits.

At-Home Broadcasting

About a decade ago, the Big Ten created the Big Ten Network (BTN) in order to broadcast more games, especially in sports that are less popular or from schools that have less of a following.  Part of the model that enabled the BTN to do this was the use of “at home” or remote production, which the Big Ten Network pioneered using back in 2009.  

Basically, in an “at home” event, instead of having your director and production happen on-site, you have your cameras at the event and your production team back at headquarters.  The cameras send their video feeds back to the home production site, and the director and producers at the home site choose shots, switch between cameras, and direct the camera operators over a two-way communications feed.

Something’s Rotten In The State Of Denmark[1. OK, technically MMN is headquartered in Sweden, but they have a Danish branch.]

This week, the Big Ten Network was sued by Moving Media Nordic (MMN) for patent infringement.  MMN’s complaint, which is quite bare-bones, claims “there is no currently available way to perform ‘at home’ or ‘REMI’ broadcasting without infringing the ’417 Patent.

Honestly, the attorney who put that in the complaint should probably make sure their malpractice insurance is fully paid up.  Every claim of the ‘417 patent requires that the video data be sent from the remote site to the home site in an uncompressed format.

It doesn’t take a lot of expertise to realize that you can perform ‘at home’ broadcasting without infringing just by compressing the video feeds.  While I don’t know for a fact that the BTN compresses their video feeds, simple math suggests that they do.[2. An 8-bit 720p video stream, uncompressed, requires around 960 Mbps.  The BTN seems to use eight or ten cameras on most events, but even if they only used five cameras, you’re still talking about 4800 Mbps just to carry the uncompressed video stream.  The Big Ten Network apparently plans around having 500 Mbps available.  4800 Mbps is more than 500 Mbps, ergo, they are likely using compression on the video streams.

Another major college sports network that utilizes at-home production, the PAC-12 Network, definitely compresses.]

Based on publicly available information, there’s no reason to believe the Big Ten Network infringes.

That’s not the only problem with MMN’s patent assertion, though.[3.  I’m leaving out the other problem with their claims, which is that one of them requires a “zero time delay” in transmission.  As the European Patent Office noted about that claim language, “this feature goes against the laws of physics.”]

You Didn’t Beat The Buzzer

One of the most exciting moments in the tournament is the buzzer-beater; the last minute shot to win the game.  But if the shot doesn’t leave your hand until after the buzzer sounds, it doesn’t count.

The same is true with patents.  If you file your patent after someone else has already come up with your invention, you don’t win.  You don’t get a patent.

So, when Moving Media Nordic filed their patent in late 2010—more than a year after the Big Ten Network began using remote production—it was already too late.  The Big Ten was already using remote production techniques, and MMN’s patent never should have issued over those techniques unless they added something new to the mix.

The problem, of course, is MMN’s statement.  Remember? “There is no currently available way to perform ‘at home’ or ‘REMI’ broadcasting without infringing the ’417 Patent.”  

If there’s no way to perform at-home broadcasting without infringing, then when BTN started doing it in 2009, they must have been implementing the patent.  Which means, of course, that MMN just admitted their own patent isn’t valid.

In Defending Against Patent Litigation, Even A Win Is A Loss

So what we have is a lawsuit where, based on the statements in the complaint, the patent may not be valid, and where public information strongly suggests that the patent isn’t infringed.

Nonetheless, the Big Ten Network will have to spend money defending themselves from the lawsuit.  And baseless patent assertions don’t just hurt large tech companies—they hit everyone, from entertainment companies like the BTN or Disney, to retailers and restaurants like Walmart and White Castle.

These suits, even if the defendant is successful in defending themselves, cost money.  According to AIPLA’s 2017 survey, the median cost just to start defending a case with less than $1,000,000 at stake is around $25,000, and the median cost to get through the motions stage is around $250,000.  If there’s more at stake? A case with more than $25,000,000 at risk might cost you around $140,000 just to get started, with the cost through the motions stage on the order of $1,700,000.  That’s not even to get to trial.

All to defend yourself against a lawsuit that never should have occurred, based on a patent that never should have issued.

No Foul Will Be Called

A lawsuit based on a potentially invalid patent that may not be infringed—if anything is a foul in patent litigation, you’d think that would be it.

It’d be one thing if, after winning, the plaintiff had to pay you back for what you spent defending yourself.  But that’s reserved for “exceptional circumstances.” Even in cases where defendants think those exist, courts only award defendants their attorney’s fees around one-third of the time.

It’s hard to see American innovation remaining the world champion if flagrantly bad patent assertions rarely get charged with a foul.

Josh Landau

Patent Counsel, CCIA

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

Follow @PatentJosh on Twitter.

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