Aylo and Bardehle Pagenberg prevail against Dish in pan-European dispute

Dish accuses Aylo of infringing two patents relating to adaptive rate video streaming. EP 2 479 680 protects a “method for presenting rate-adaptive streams” and EP 3 822 805 protects an “apparatus, system, and method for adaptive-rate shifting or streaming content”. The latter relates to a specific mechanism for changing video quality during streaming.

Aylo is a provider of adult entertainment streaming on internet platforms, including Pornhub and Brazzers. The international dispute involves the UK, Germany, the UPC and the US. However, Dish’s lawsuits against Aylo in Europe have so far been unsuccessful.

Munich-London-Paris axis

Dish filed a lawsuit for infringement of EP 805 at Munich Regional Court. In mid-May, the 21st Civil Chamber under presiding judge Georg Werner dismissed the lawsuit (case ID: 21 O 15905/23). The judges, which included Julia Seiler-Bohn and Sebastian Benz, thus followed Aylo’s argument regarding the interpretation of a central claim feature. The court found that Aylo’s services do not use the mechanism protected by the patent.

Aylo has also won at the UPC so far. Parallel to the national infringement proceedings in Munich, the streaming provider had brought a revocation action against EP 805 before the central division. In late May, the UPC revoked the German part of EP 805 due to added matter (case ID: UPC CFI 198 /2024). The judges panel, consisting of presiding judge Marjolein Visser, judge rapporteur Maximilian Haedicke and technically qualified judge Alessandro Sanchini, also ruled on the general legal question of whether the UPC can revoke European patents for one or more individual UPC member states, depending on the scope applied for.

Shortly afterwards, the EPO’s Opposition Division revoked EP 805 in all validation states. No opposition was filed against EP 680 within the time limit.

Mannheim takes Alyo’s side

In addition, Dish had launched infringement proceedings based on EP 680 at the Mannheim local division, to which Aylo responded with a counterclaim for revocation.

Today, the panel including presiding judge Peter Tochtermann, legally qualified judges Dirk Böttcher and Walter Schober, as well as technically qualified judge Dennis Kretschmann dismissed the infringement suit.

The judges did not consider the patent to be infringed in its granted form, not even by equivalent infringement, which the plaintiff had asserted. At the same time, they limited EP 680 in the counterclaim for revocation due to added matter and upheld it to the extent of one of the auxiliary requests (case ID: UPC_CFI_471/2023).

It is not yet known whether Dish will appeal the judgments at the Regional Court or the Mannheim local division.

UPC experience

A&O Shearman represented patent owner Dish throughout the proceedings in Europe. Munich-based litigator Denise Benz led the team at Munich Regional Court and at the UPC. Partner Jan Ebersohl and associate Celina Kuhn assisted. A&O Shearman is also active in another UPC action, representing Samsung in a dispute against ZTE over wireless communication technology.

London-based partner Mark Heaney represented the patent owner at the UK High Court. Barristers Tom Moody-Stuart KC of 8 New Square and Kyra Nezami of 11 South Square assisted. Patent attorney Nicholas Bebbington of Beck Greener had filed both patents and also conducted the opposition proceedings for EP 805 at the EPO.

Aylo relied on a mixed team from Bardehle Pagenberg both in the national proceedings at Munich Regional Court and in the UPC proceedings. Munich litigator Tilman Müller-Stoy led the infringement proceedings and patent attorney Georg Anetsberger contributed to the validity case. The team also included litigators Tobias Wuttke, counsel Martin Drews, associate Saskia Mertsching, and patent attorney Maggie Huang.

Bardehle is one of the most active firms at the UPC, where it advises numerous clients from the high-tech sector, such as Microsoft, Qualcomm, Xiaomi and Dolby, as well as life sciences clients such as Amgen and 10x Genomics.

In the current case, Bardehle cooperated at the UPC with patent attorney Conor McLaughlin of Mishcon de Reya. The mixed firm also represented Aylo in the EPO opposition against EP 805 and in the UK proceedings. In the latter, the company instructed Iain Purvis KC of 11 South Square and Isabel Jamal of 8 New Square.