Streaming platform Fubo is challenging the validity of a patent held by Echostar’s Dish Network that concerns the use of adaptive bitrate technology in linear video streams, The Desk has learned.
The challenge was filed last year with the Patent Trial and Appeal Board after Dish brought civil lawsuits against Fubo and a number of other streaming-focused companies, alleging that the services used adaptive bitrate technology without licenses.
Fubo and Dish offer competing streaming video products that distribute live broadcast and cable channels over the Internet to phones, tablets and smart TVs. Both products use adaptive bitrate technology, which adjusts the video quality of a live stream to accommodate faster or slower Internet connections.
Dish has long held a patent covering core aspects of adaptive bitrate features, and has filed a number of lawsuits over the years when it feels companies use similar technology without paying Dish a royalty or otherwise getting permission.
Two years ago, Dish filed a civil lawsuit against Fubo alleging as much, claiming that it tried to work with the sports-focused streamer to secure a license for its use of adaptive bitrate technology, but had failed in its efforts.
The first outreach to Fubo occurred in 2019, when Dish says it contacted Fubo’s then-Senior Vice President of Design David Yoon with a complaint about their use of adaptive bitrate technology. Yoon was receptive to the initial contact, and agreed to sign a non-disclosure agreement while both sides worked out an agreement, Dish claimed.
The discussions broke down in mid-2023 when a Fubo attorney got involved. The attorney reportedly told Dish that the company didn’t feel it needed a license to distribute streams with adaptive bitrate technology. Dish filed its lawsuit a short time later.
Last year, Fubo and two other companies, Aylo Freesites and Yanka Industries, filed a challenge with the Patent Trial and Appeal Board seeking a review of Dish’s patent on the adaptive bitrate technology, according to court records obtained by The Desk this week.
The process is known as an “inter partes review,” which examines whether an individual or company has a valid right to a patent on a product, service or idea. Fubo and Yanka have filed three patent review requests with the Patent Trial and Appeal Board, while Aylo Freesites is involved in a fourth. Their arguments for review were not readily accessible to The Desk at time of publication.
Ordinarily, the Patent Trial and Appeal Board has six months to decide on whether to accept a request for review. If accepted, the matter goes to trial. The three companies requested a review of Dish’s adaptive bitrate technology patents one year ago, and Dish has sought a subpoena to compel testimony in the case, suggesting the Patent Trial and Appeal Board has accepted the matter for review.
If the Patent Trial and Appeal Board invalidates one or more patents, the consequences could be staggering for Dish, which secured licensing agreements with some competitors through its patent infringement lawsuits. It could also lead to the dismissal of pending legal claims against Fubo and other streaming services.
A spokesperson for Dish said the company does not comment on ongoing legal matters. An email sent to Fubo seeking comment was not returned.
