Wilmerding Communications LLC v. Connectify Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Wilmerding Communications LLC (Delaware)
  • Defendant: Connectify, Inc. (Delaware)
  • Plaintiff’s Counsel: Chipman Brown Cicero & Cole, LLP
• Case Identification: 1:19-cv-00610, D. Del., 03/29/2019
• Venue Allegations: Venue is alleged to be proper in the District of Delaware because Defendant is a Delaware corporation and conducts business in the district, including offering for sale the accused products and services.
• Core Dispute: Plaintiff alleges that Defendant’s Speedify software and services, which provide channel bonding VPN functionality, infringe three patents related to methods and systems for aggregating bandwidth over multiple communication networks.
• Technical Context: The technology at issue is in the field of bandwidth aggregation, which involves combining multiple distinct internet connections (e.g., Wi-Fi and cellular) on a single device to improve data throughput, speed, and reliability.
• Key Procedural History: The complaint alleges that Plaintiff sent a notice letter to Defendant identifying the patents-in-suit on October 25, 2018. Defendant is alleged to have acknowledged receipt on October 30, 2018. The complaint further states that the parties subsequently engaged in unsuccessful licensing negotiations, which may be relevant to the allegations of willful infringement.

Case Timeline

Date	Event
2008-12-04	’389 Patent Priority Date
2010-06-09	’816 Patent Priority Date
2011-09-26	’319 Patent Priority Date
2014-02-04	’816 Patent Issue Date
2014-04-22	’389 Patent Issue Date
2015-09-03	Accused Product "Speedify" feature documented in blog post
2017-12-05	’319 Patent Issue Date
2018-10-25	Plaintiff sends notice letter to Defendant
2019-03-29	Complaint Filing Date

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

U.S. Patent No. 8,644,816 - Transmitting Data over a Plurality of Different Networks (issued Feb. 4, 2014)

The Invention Explained

• Problem Addressed: The patent describes the poor performance of standard communication protocols like TCP over wireless networks, where packet loss is often misinterpreted as network congestion, leading to an unnecessary reduction in transmission speed (’816 Patent, col. 1:14-2:13). This issue is compounded on devices with multiple wireless interfaces that cannot be used in parallel efficiently (’816 Patent, col. 1:52-57).
• The Patented Solution: The invention proposes a system architecture involving a client device and a proxy server to isolate applications from the volatility of wireless networks. A "client protocol controller" on the mobile device intercepts data from an application, immediately acknowledges its receipt to the application (simulating a successful delivery), and then uses a separate "intermediary communication protocol" optimized for wireless transmission to send the data to the proxy server (’816 Patent, Abstract; col. 3:40-4:16). The proxy server then uses the original, standard protocol to forward the data to the final destination server, as depicted in the system architecture of Figure 2 (’816 Patent, Fig. 2).
• Technical Importance: This system allows for the use of specialized, more efficient protocols over the wireless link without requiring any modification to existing applications or remote servers, thereby improving performance and reliability. (’816 Patent, col. 6:3-9).

Key Claims at a Glance

• The complaint asserts independent system claim 16 (Compl. ¶31).
• Essential elements of claim 16 include:
  • A system with a mobile communication device and a proxy server.
  • The mobile device has instructions to: (1) exchange data between an application and a client protocol controller using a first communication protocol; and (2) exchange data with the proxy server using an intermediary communication protocol that is different from the first.
  • The proxy server has instructions to: (1) use the intermediary protocol to communicate with the mobile device; and (2) use the first protocol to communicate with a remote server.

U.S. Patent No. 8,707,389 - Multi-transport mode devices having improved data throughput (issued Apr. 22, 2014)

The Invention Explained

• Problem Addressed: Mobile devices are often equipped with multiple communication technologies (e.g., Wi-Fi, 3G), but typically only use one at a time, leaving potential bandwidth untapped and limiting overall throughput. (’389 Patent, col. 1:47-52, 1:60-64).
• The Patented Solution: The patent discloses a method to increase a device's effective bandwidth by actively using multiple network connections simultaneously. This is achieved by segmenting data into packets and "scheduling" their transmission across different available access points (e.g., Wi-Fi and 3G), each of which may use a different protocol and network path (’389 Patent, col. 2:3-13). Logic on both a client device and a proxy server manages the distribution and reassembly of these packets to create a single, faster data stream (’389 Patent, col. 3:41-4:4).
• Technical Importance: The invention provides the ability for a single device to transmit and receive data using different transmission technologies "practically at the same time," thereby combining their speeds for improved performance. (’389 Patent, col. 1:66-2:2).

Key Claims at a Glance

• The complaint asserts independent method claim 1 (Compl. ¶42, ¶44).
• Essential elements of claim 1 include:
  • A method for transmitting data between a client and a proxy server.
  • Segmenting data into a plurality of packets.
  • Scheduling each packet for transmission via one of a plurality of access points to increase bandwidth.
  • Each access point is configured to communicate with the client using a different protocol and with the proxy server using a different network path.
  • Transmitting the packets between the client and proxy server via the scheduled access points.

U.S. Patent No. 9,838,319 - Encapsulation System Featuring an Intelligent Network Component (issued Dec. 5, 2017)

• Technology Synopsis: This patent addresses the communication overhead and inefficiencies in bandwidth aggregation systems that arise from signaling delays and a lack of coordination between the client and server. (’319 Patent, col. 1:40-48). The invention describes an "intelligent network component" and a client that use "logic common with each other" to cooperatively manage traffic, including intermittently exchanging status information (e.g., network quality) over a control channel to make synchronized routing decisions and reduce signaling traffic. (Compl. ¶17; '319 Patent, col. 2:3-11, 2:19-30).
• Asserted Claims: Independent component claim 1. (Compl. ¶50).
• Accused Features: The complaint alleges that the Speedify application (as the client) and the Speedify server (as the "intelligent network component") infringe by exchanging network performance parameters and using common logic to selectively schedule traffic across multiple network paths. (Compl. ¶51, ¶54-55).

III. The Accused Instrumentality

Product Identification

• The accused instrumentalities are the "Speedify" downloadable software application and the associated services offered by Connectify (Compl. ¶23).

Functionality and Market Context

• The complaint describes Speedify as a "fast bonding VPN service" that allows a user's device (PC, Mac, or mobile) to combine all available internet connections, such as Wi-Fi, 3G/4G/LTE, and wired connections. (Compl. ¶24). The purpose of this "channel bonding" is to create a single connection that is faster, more reliable, and more secure for activities like HD video streaming, uploads, and web browsing (Compl. ¶24-25). A screenshot from the Speedify website describes its technology as allowing a user to "use multiple Internet connections simultaneously for their combined speed." (Compl. ¶26, p. 6). Another screenshot from the Speedify mobile application's user interface shows the software actively "Bonding 2 Connections," identified as Wi-Fi and Cellular (AT&T). (Compl. ¶27, p. 8). The complaint alleges the product is marketed as a "revolutionary channel bonding VPN." (Compl. ¶25).

IV. Analysis of Infringement Allegations

The complaint references claim chart exhibits (Exhibits 4, 5, and 6) that were not included with the filed document. Per the instructions for this analysis, the narrative infringement theories are summarized below in prose.

'816 Patent Infringement Allegations

The complaint alleges that the Speedify system, comprising the user-side application and Connectify's servers, infringes at least claim 16 of the ’816 Patent (Compl. ¶36). The infringement theory posits that the Speedify application on a user’s device functions as the claimed "mobile communication device," while Connectify's servers operate as the "proxy server" (Compl. ¶31-33). The allegations suggest that the Speedify app intercepts data from other applications (which use a "first communication protocol") and then uses its own proprietary channel bonding technology as the "intermediary communication protocol" to transmit data over one or more wireless networks to the proxy server (Compl. ¶31).

’389 Patent Infringement Allegations

The complaint alleges that the Speedify service infringes at least claim 1 of the ’389 Patent by practicing the claimed method of bandwidth aggregation (Compl. ¶44). The theory is that Speedify segments user data into packets and "schedul[es]" them for transmission across multiple available internet connections, such as Wi-Fi and cellular, thereby increasing the effective bandwidth (Compl. ¶42). The complaint references a blog post with instructions for using Speedify, which supports the allegation of infringement by users (Compl. p. 7). The complaint's visual evidence showing the Speedify app "Bonding 2 Connections" will likely be used to support the allegation that it performs the claimed scheduling over a plurality of access points (Compl. ¶27, p. 8).

Identified Points of Contention

• Scope Questions: A primary question for the ’816 Patent is whether Speedify's VPN architecture constitutes the claimed two-protocol system. The court may need to determine if there is a legally distinct "first communication protocol" and "intermediary communication protocol," or if Speedify's operation is better characterized as a single, multi-layered protocol. For the ’389 Patent, a question is whether the simultaneous use of Wi-Fi and cellular connections meets the claim requirement that each access point communicates with the client "using a different protocol."
• Technical Questions: A key technical question for the ’389 Patent is whether Speedify’s "channel bonding" mechanism performs the specific act of "scheduling each of the plurality of packets" as required by the claim. The court will likely examine whether the accused functionality involves a deliberate, packet-by-packet distribution or a more general, flow-based load balancing, and whether any such distinction matters under the patent's claims.

V. Key Claim Terms for Construction

For the ’816 Patent (from Claim 16)

• The Term: "intermediary communication protocol"
• Context and Importance: This term is foundational to the patent's novelty, as the invention centers on substituting a standard protocol with this specialized one for the wireless leg of communication. Infringement will depend on whether Speedify's proprietary bonding technology is construed as this distinct "intermediary" protocol.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification suggests flexibility, noting the protocol "is used to transmit the data between the wireless communication device 110 and the proxy" and can be developed as "an extension of existing protocols" like UDP, or be an "entirely new communication protocol." (’816 Patent, col. 4:60-64, col. 6:47-55).
  • Evidence for a Narrower Interpretation: The patent repeatedly frames the intermediary protocol in contrast to a "standard reliable communication protocol" like TCP, highlighting its role in simulating data receipt to the application. (’816 Patent, Abstract; col. 2:35-43). Parties may argue the term is limited to protocols that perform this specific simulation function.

For the ’389 Patent (from Claim 1)

• The Term: "scheduling each of the plurality of packets"
• Context and Importance: This phrase defines the active nature of the packet distribution process. Practitioners may focus on this term because the infringement analysis will turn on whether Speedify's "bonding" algorithm qualifies as "scheduling" individual packets, as opposed to a more passive or session-level allocation of traffic.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification describes multiple ways to implement the scheduling, such as alternating packets, routing based on cost or battery power, or creating ratios based on network speed, suggesting "scheduling" could encompass a variety of dynamic allocation algorithms. (’389 Patent, col. 4:30-36, 4:56-65).
  • Evidence for a Narrower Interpretation: The claim language "scheduling each...of the...packets to be transmitted via corresponding ones of a plurality of access points" could imply a more deliberate, one-to-one or systematic assignment. The diagram in Figure 3, which shows a simple, alternating distribution of individual packets (pk1, pk2, pk3, pk4), could be cited to support a narrower construction limited to such deterministic, packet-level routing. (’389 Patent, Fig. 3).

VI. Other Allegations

Indirect Infringement

• The complaint alleges both induced and contributory infringement for all patents-in-suit. The inducement allegation is based on Connectify providing the Speedify application along with instructions on its websites and in app stores that allegedly direct users to combine multiple network connections in an infringing manner (Compl. ¶34, ¶44, ¶53). The contributory infringement allegation claims the Speedify software is a material component of the patented systems, is not a staple article of commerce, and is known by Connectify to be especially made for use in an infringing manner (Compl. ¶35, ¶54).

Willful Infringement

• Willfulness is alleged based on pre-suit knowledge from at least October 30, 2018, the date Connectify allegedly responded to Plaintiff's notice letter identifying the patents-in-suit (Compl. ¶21, ¶58). The complaint alleges that Defendant's continued infringement after this date has been deliberate and willful, warranting enhanced damages (Compl. ¶37, ¶59).

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

1. A core issue will be one of architectural scope: Does the accused Speedify VPN service embody the specific two-protocol client-proxy architecture required by the ’816 patent, or does its integrated "channel bonding" technology represent a fundamentally different system that falls outside the claim's boundaries?
2. A key evidentiary question will be one of functional operation: Does the accused Speedify software perform the active, packet-by-packet "scheduling" across multiple networks as claimed by the ’389 patent, or does its "bonding" algorithm employ a different traffic management technique (e.g., flow-based balancing) that does not align with the claim language?
3. A central question for the ’319 patent will be one of cooperative intelligence: What evidence can be presented to show that the Speedify client and server use "logic common with each other" and "intermittently exchange status information" to make synchronized routing decisions, as opposed to a system where the client acts autonomously based on its own local network measurements?