Anuwave LLC v. Avast Software Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Anuwave LLC (Texas)
  • Defendant: Avast Software, Inc. (Delaware)
  • Plaintiff’s Counsel: Stamoulis & Weinblatt LLC; Ferraiuoli LLC
• Case Identification: 1:18-cv-00506, D. Del., 04/04/2018
• Venue Allegations: Venue is alleged to be proper on the basis that Defendant is a corporation established under the laws of Delaware and is therefore a resident of the district.
• Core Dispute: Plaintiff alleges that Defendant’s Avast Antivirus Mobile App infringes a patent related to methods for enabling user interaction with network applications via the SMS communication channel.
• Technical Context: The technology concerns using the ubiquitous SMS protocol to create application-like experiences on mobile devices, circumventing the need for more costly or less available IP-based data connections.
• Key Procedural History: The complaint does not mention any prior litigation, inter partes review proceedings, or licensing history related to the patent-in-suit.

Case Timeline

II. Technology and Patent(s)-in-Suit Analysis

U.S. Patent No. 8,295,862 - “Method and system to enable communication through SMS communication channel”

The Invention Explained

• Problem Addressed: The patent describes a technical environment where using mobile services required users to remember and manually type specific text commands, a "tedious process." (’862 Patent, col. 1:34-38). While more advanced applications existed, they required IP-based connections like WAP or GPRS, which were not always available and incurred "additional cost for the users." (’862 Patent, col. 1:45-51).
• The Patented Solution: The invention proposes a "network aware application" (NWA) on a mobile device that provides a user-friendly interface, such as a menu of services. (’862 Patent, col. 2:49-52). When a user makes a selection, middleware on the device converts the choice into a command, encodes it, and sends it as an SMS message to a remote SMS gateway. The gateway processes the request, and a response is sent back via SMS, which the NWA on the device then decodes and displays to the user. (’862 Patent, Abstract; FIG. 1). This creates an interactive session using only the SMS channel.
• Technical Importance: This approach enabled the creation of richer, application-like user experiences on mobile devices that lacked reliable or affordable IP-based data access, leveraging the near-universal availability of SMS. (’862 Patent, col. 1:57-62).

Key Claims at a Glance

• The complaint asserts independent claim 7 of the ’862 patent (Compl. ¶29).
• The essential elements of independent claim 7 are:
  • listing all services at a terminal station that are available with an SMS gateway according to meta information available at the terminal station;
  • upon selecting a service, a network aware application configured to allow a user to type in a desired parameter;
  • upon user entering the desired parameter, submitting a request to the SMS gateway;
  • the SMS gateway responding back with a response;
  • wherein the desired parameter is not listed at the terminal station.
• The complaint does not explicitly reserve the right to assert dependent claims but notes the patent contains five such claims (Compl. ¶18).

III. The Accused Instrumentality

Product Identification

The "Avast Antivirus Mobile App" system (the "Accused Instrumentality") (Compl. ¶21).

Functionality and Market Context

The accused product is a text security service for individuals and businesses (Compl. ¶21). The allegedly infringing functionality involves features that allow a user to locate their phone using SMS commands sent from another device (Compl. ¶21). A user can send a command such as "locate" followed by a PIN to the lost phone to receive its location information in response (Compl. ¶¶23-24). The complaint does not provide further details on the product's market positioning. No probative visual evidence provided in complaint.

IV. Analysis of Infringement Allegations

’862 Patent Infringement Allegations

Identified Points of Contention

• Scope Questions: The complaint alleges infringement via a use case where a user sends an SMS command to their lost phone from a separate device. The patent's figures and description appear to depict an application on the "terminal station" initiating an interactive session with a remote "SMS gateway" (e.g., ’862 Patent, FIG. 2). This raises the question of whether the claimed "terminal station" and "SMS gateway" can be components of the same lost device, as the complaint's theory may require.
• Technical Questions: What evidence demonstrates that the accused app performs the step of "listing all services... according to meta information available at the terminal station"? The complaint alleges the app "shows all available services and their corresponding commands" (Compl. ¶22), but it is unclear if this refers to an interactive, on-device menu as depicted in the patent (e.g., ’862 Patent, FIG. 5A), or a static list of commands (e.g., in a help file or on a website) that a user must consult and then manually type.

V. Key Claim Terms for Construction

"SMS gateway"

• Context and Importance: The definition of this term is critical to resolving the potential architectural mismatch between the patent and the accused system. Practitioners may focus on whether the "SMS gateway" must be a server-side component separate from the "terminal station," as depicted in the patent’s system diagram (’862 Patent, FIG. 2), or if it can refer to software on the terminal station itself that processes incoming SMS commands.
• Intrinsic Evidence for a Broader Interpretation: The patent states the gateway's function is "to facilitate SMS communication between a network terminal station and the central station" (’862 Patent, col. 2:36-39), language that does not explicitly forbid its location on the terminal device.
• Intrinsic Evidence for a Narrower Interpretation: The patent consistently describes a multi-component architecture where the "terminal station" (201) interacts through a network with a separate "SMS gateway" (204) and "central station" (205) (’862 Patent, FIG. 2). The specification also states the gateway "handles the command to a middleware at a central station," suggesting a distinct, server-side entity (’862 Patent, col. 2:16-18).

"listing all services at a terminal station"

• Context and Importance: This term is central to whether the accused product's method of presenting commands to the user meets the claim requirements. The dispute may turn on whether a static list of commands in a help file or on a support website constitutes "listing" in the manner claimed.
• Intrinsic Evidence for a Broader Interpretation: The claim language itself does not specify the format of the "listing," which could arguably encompass any method of making the service options known to the user via the terminal station.
• Intrinsic Evidence for a Narrower Interpretation: The detailed description and figures strongly suggest an interactive, on-device menu. The specification states, "The network aware application, when opened, lists all the services that are available" (’862 Patent, col. 2:49-51), and Figure 5A explicitly shows a navigable menu of "Available Services" on the device screen.

VI. Other Allegations

• Willful Infringement: The complaint does not contain an explicit allegation of willful infringement. It alleges that Defendant had knowledge of its infringement "at least as of the service of the present complaint" (Compl. ¶30), which supports a claim for damages from the date of filing forward.

VII. Analyst’s Conclusion: Key Questions for the Case

• A core issue will be one of architectural scope: can the claimed method, which describes a "terminal station" interacting with a remote "SMS gateway," be construed to cover the accused system where a lost phone (the terminal station) receives and processes an SMS command, arguably acting as its own gateway?
• A key evidentiary question will be one of functional interpretation: does providing a user with a list of text commands to be manually entered satisfy the claim limitation of "listing all services at a terminal station," or does the patent require an interactive, on-device menu as shown in its embodiments?