It’s Not Every Patent Complaint That Name Checks “The Starr Report” AND Big Bad Voodoo Daddy

May 12, 2024

Recently formed Delaware plaintiff Sandpiper CDN, LLC has launched litigation, suing Alphabet (Google) (2:24-cv-03951) in the Central District of California. Six patents, generally related to content delivery networks and received from Level 3 Communications (acquired in 2017 by Lumen Technologies (f/k/a CenturyLink)), are asserted in the new complaint, which targets Google CDN, which the plaintiff contends that Google “uses and sells . . . via its Cloud CDN and Media CDN offerings”, including in connection with YouTube and YouTube TV. Sandpiper CDN pleads that it is “[n]amed after, and in homage to, the company that originally pioneered and developed CDN technologies in the 1990’s”, Sandpiper Networks.

The new complaint leans heavily on a recitation of the history of Sandpiper Networks, alleged to have been formed by David Farber and Andrew Swart in 1996 “to further develop and commercialize their novel concept for a content delivery network”, after earlier work “to develop services that allowed content providers to distribute their content over the Internet, while avoiding the common congestion and performance issues that plagued Internet transmission at that time”, including by building “systems and methods for propagating data from origin servers to edge servers (a process known as ‘caching’) based on network demand and for seamlessly routing users to the optimal edge server with the correct content”.

Sandpiper CDN pleads that the first customer of Sandpiper Networks was “the L.A. Times, which paid Sandpiper Networks to host the report of Independent Counsel Ken Starr on his investigation of President Bill Clinton (‘the Starr Report’) beginning on September 11, 1998”, later partnering with WebRadio “to utilize Sandpiper’s CDN to deliver streaming audio from radio stations on behalf of WebRadio” and subsequently using “its CDN to broadcast a live concert by the band ‘Big Bad Voodoo Daddy’”. Per the complaint, Sandpiper Networks merged with Digital Island in December 1999, and then “[f]ollowing a series of acquisitions, the assets of Sandpiper Networks and Digital Island, as well as their CDNs and patents, were acquired by Level 3 in January 2007”.

Farber and Swart are named as inventors (with others) on only one (8,478,903) of the six patents (8,595,778; 8,645,517; 8,719,886; 9,021,112; 10,924,573) now in suit against Google. Sandpiper CDN pleads that after “its acquisition of Sandpiper’s CDN”, Level 3 “continued building upon the foundation laid by Sandpiper, eventually becoming one of the foremost CDN operators in the United States”, but by the “early-to-mid 2000s” other companies “capitalized on the investment made into CDN research and development made by Level 3 and/or its predecessors, misappropriating years of research and investments”. Given this competition and, per the complaint, “[g]iven the rampant infringement of its patents, which depressed its revenue and profit, Level 3 decided to exit the CDN market in 2023 and began selling off its CDN assets. Level 3 sold the Asserted Patents to Plaintiff Sandpiper CDN on March 29, 2024”.

The assignment of more than 80 US patents from Level 3 to Sandpiper CDN, dated on April 24, 2024, was recorded with the USPTO on April 26. This transfer is not Level 3’s first to an NPE. Beginning in April 2017, Level 3 moved what would eventually come to around 110 US patent assets to Optic153 LLC, a subsidiary of Equitable IP Corporation. Equitable IP was formed in Nevada in 2015 by John T. Meli Jr., the former patent counsel for Rembrandt IP Management, LLC. Other individuals have been associated with Equitable IP over the years, but Meli has signed for Equitable IP entities in more recent assignments. Optic153’s litigation campaign over its received assets ran from March 2018 to March 2021. (The docket for the last case, against Deutsche Telekom (T-Mobile), suggests that activity persisted into March 2023, but that entry was merely a confirmation from District Judge Alan D. Albright of the plaintiff’s voluntary dismissal years earlier.)

Sandpiper CDN was formed in Delaware on March 21, 2024. In connection with its new case, it has disclosed that Theseus LF Asset Holdings, LLC is its parent corporation, which itself has no parent nor any publicly held corporation holding ten percent or more of its “membership interest”. Theseus LF Asset Holdings was formed in Delaware on August 25, 2023. Sandpiper CDN made this disclosure pursuant to Central District of California local rules, which require litigants to “list all persons, associations of persons, firms, partnerships, and corporations (including parent corporations, clearly identified as such) that may have a pecuniary interest in the outcome of the case”. It is unclear how such a list could include no persons whatsoever. Public records contain little, if any, information about Sandpiper CDN’s personnel or management.

Shook, Hardy & Bacon L.L.P. filed the new complaint for Sandpiper CDN. The case has yet to be assigned to a judge. 5/10, Central District of California.