Attentive Mobile Inc v. 317 Labs Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Attentive Mobile Inc. (Delaware)
  • Defendant: 317 Labs, Inc. d/b/a Emotive (Delaware)
  • Plaintiff’s Counsel: Morris, Nichols, Arsht & Tunnell LLP; King & Spalding LLP
• Case Identification: 1:22-cv-01163, D. Del., 09/01/2022
• Venue Allegations: Venue is alleged to be proper in the District of Delaware because Defendant is a corporation incorporated in the State of Delaware.
• Core Dispute: Plaintiff alleges that Defendant’s SMS marketing platform infringes patents related to a two-tap method for signing up mobile users for messaging-based communications using custom-generated deeplinks.
• Technical Context: The technology addresses the process of converting mobile website visitors into SMS marketing subscribers, a key function in modern e-commerce and digital advertising.
• Key Procedural History: The complaint alleges a "pattern and practice of copying" by Defendant, citing a prior cease and desist letter in August 2021 regarding alleged copyright infringement of marketing materials, to which Defendant allegedly agreed to comply. Plaintiff further alleges that Defendant did not respond to a subsequent cease and desist letter in September 2021 regarding different but allegedly similar infringing materials.

Case Timeline

Date	Event
2017-05-26	Earliest Priority Date for '887 and '897 Patents
2021-08-09	Defendant allegedly agreed to stop using an infringing image after a cease and desist letter
2021-09-XX	Plaintiff allegedly sent a second cease and desist letter to which Defendant did not respond
2022-08-16	'887 Patent Issued
2022-08-16	'897 Patent Issued
2022-09-01	Complaint Filing Date

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

U.S. Patent No. 11,416,887 - "Methods and Apparatus for Mobile Device Messaging-Based Communications Using Custom-Generated Deeplinks and Based on the Hyper Text Transfer Protocol (HTTP)," Issued August 16, 2022

The Invention Explained

• Problem Addressed: The patent addresses inefficiencies in traditional mobile user signup processes for e-commerce promotions or subscriptions. These processes often required users to be redirected from their current activity (e.g., browsing a webpage) to a separate interface to manually enter information, a "time-consuming and burdensome process" that led to user drop-off from mistyped information or lost interest (Compl. ¶31; ’887 Patent, col. 1:42-48).
• The Patented Solution: The invention provides a server-based system that streamlines this process. When a user on a mobile device interacts with a promotional message on a webpage (a first application), the system generates a custom Uniform Resource Identifier (URI). This URI acts as a deeplink, automatically transitioning the user to a messaging application (a second application) with a pre-populated message ready to be sent. This allows a user to subscribe or initiate a purchase with minimal input, such as two screen taps. (Compl. ¶34; ’887 Patent, col. 3:6-23, Fig. 1).
• Technical Importance: This "click-to-text" approach sought to reduce user friction in mobile marketing funnels, thereby increasing conversion rates for businesses seeking to build SMS subscriber lists (Compl. ¶¶32-33).

Key Claims at a Glance

• The complaint asserts independent claim 1 (Compl. ¶73).
• The essential elements of independent claim 1, directed to a non-transitory computer-readable medium, include instructions for a "click-to-text server" to:
  • Send an "integration tag" to a client server to be served with a webpage.
  • Define and send a "URI deeplinking" to a messaging application that is configured to (1) "automatically transition" from the first application (e.g., web browser) to the messaging application and (2) "automatically populate a custom message" with a server address and an identifier.
  • "receive the custom message" at the click-to-text server after the user interacts with a send button.
  • "enroll the mobile device in a promotion" based on receiving the message and "without receiving any additional information" from the mobile device.
• The complaint reserves the right to assert other claims (Compl. ¶91).

U.S. Patent No. 11,416,897 - "Methods and Apparatus for Mobile Device Messaging-Based Communications Using Custom-Generated Deeplinks and Based on the Hyper Text Transfer Protocol (HTTP)," Issued August 16, 2022

The Invention Explained

• Problem Addressed: As a member of the same patent family, the ’897 Patent addresses the same technical problem of reducing user friction and abandonment in mobile signup flows (Compl. ¶31; ’897 Patent, col. 1:36-48).
• The Patented Solution: The ’897 Patent also describes a server-based system for facilitating a two-tap subscription. It is claimed using means-plus-function language, which defines elements by the function they perform rather than by explicit structure. The claimed solution involves means for displaying an invitation, means for transitioning the user to a messaging app with a pre-populated message, receiving that message, and delivering a subscription service installment without a further opt-in step. (Compl. ¶106; ’897 Patent, col. 3:6-23).
• Technical Importance: This approach also aimed to create a "near-seamless user experience" to improve user engagement and solve the problem of high drop-off rates in conventional mobile marketing signup processes (Compl. ¶38).

Key Claims at a Glance

• The complaint asserts independent claim 15, a means-plus-function claim (Compl. ¶106).
• The essential elements of independent claim 15, directed to a non-transitory computer-readable medium, include instructions for a processor to:
  • Send "means for displaying an invitation to subscribe" to a text messaging service via a first application.
  • Send "means for causing" (1) the mobile device to "transition" to a second, different messaging application and (2) the second application to "automatically populate a custom text message".
  • "receive, from the mobile device, the custom text message".
  • "deliver an installment of the text messaging subscription service without receiving an opt-in communication".
• The complaint reserves the right to assert other claims (Compl. ¶124).

III. The Accused Instrumentality

Product Identification

The accused products are "Emotive's SMS Marketing Platform and Emotive's other offerings and services that integrate with Emotive's SMS Marketing Platform" (collectively, the "Accused Products") (Compl. ¶¶7, 40).

Functionality and Market Context

• The Accused Products are described as a "full-funnel text marketing platform" that allows businesses to create customizable mobile popups to convert "valuable web traffic into subscribers" (Compl. ¶¶42-43).
• The complaint alleges the platform provides functionality for customers to design a mobile popup that offers a discount, which, when interacted with by an end-user, initiates a pre-populated SMS message to subscribe to a marketing list (Compl. ¶¶46, 48-49). A screenshot from Defendant's user-facing documentation shows a configuration screen for a mobile-only popup (Compl. ¶47, p. 14).
• The platform is marketed as a way to "grow your email and phone number list together" and is allegedly a "direct competitor" to Plaintiff's offerings (Compl. ¶¶7, 11).

IV. Analysis of Infringement Allegations

’887 Patent Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
send, to a client server, an integration tag configured to be served with a webpage...	Emotive's platform sends code to its customers' websites to generate mobile popups, which are alleged to be the claimed "integration tag."	¶81	col. 21:46-50
define and send a uniform resource identifier (URI) to the mobile device... the URI deeplinking to a messaging application... configured to cause the mobile device to (1) automatically transition... and (2) automatically populate a custom message...	When a user interacts with the Emotive popup, the system allegedly generates and sends a URI that opens the user's native messaging app and populates it with a predefined message, such as a "Subscribe keyword." The complaint provides a three-panel screenshot depicting a user tapping a popup on a website (left), the messaging app opening with a pre-populated message (center), and the server's response after the message is sent (right) (Compl. p. 17).	¶¶84-86	col. 21:51-61
receive the custom message at the click-to-text server	The Accused Products' server allegedly receives the custom message sent by the user from their mobile device.	¶88	col. 22:1-2
enroll the mobile device in a promotion... based on receiving the custom message and without receiving any additional information from the mobile device.	Upon receiving the user's message, the server allegedly enrolls the user in the promotion by automatically sending back a message containing a discount code, without requiring any further user input.	¶89	col. 22:3-6

• Identified Points of Contention:
  • Scope Questions: A potential dispute may arise over whether the "identifier associated with at least one of the webpage or the user data" as claimed reads on the "Subscribe keyword" allegedly used by the accused system (Compl. ¶85). The defense may argue the keyword is not sufficiently associated with the webpage or user data in the manner required by the patent.
  • Technical Questions: A question for the court may be whether sending a discount code in a reply text constitutes "enroll[ing] the mobile device in a promotion" as the claim requires, or if the claim implies a more integrated backend process.

’897 Patent Infringement Allegations

Claim Element (from Independent Claim 15)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
send, from at least one server... means for displaying an invitation to subscribe to a text messaging subscription service via a first application	The accused platform allegedly sends code from its server that causes a mobile popup to appear on a customer's webpage (the first application), which serves as the "invitation."	¶114	col. 24:34-38
send, from the at least one server... means for causing (1) the mobile device to transition from the first application to a second application... and (2) the second application to automatically populate a custom text message...	The accused system's server allegedly sends a URI deeplink that causes the mobile device to open the native messaging app (the second application) and populates it with a pre-defined custom message. The complaint includes a screenshot of the accused system generating a pre-populated message after a user interacts with a "Sign me up" button in an email (Compl. p. 26).	¶¶117-119	col. 24:39-46
receive, from the mobile device, the custom text message...	The accused platform's server allegedly receives the custom text message after the user sends it from their mobile device.	¶122	col. 24:47-50
deliver an installment of the text messaging subscription service without receiving an opt-in communication after receiving the custom text message.	After receiving the initial message, the user immediately receives a welcome text with a promotional offer, which the complaint alleges is the "installment of the text messaging subscription service" delivered without a separate opt-in confirmation message. A screenshot sequence shows the welcome text arriving as the first and only response to the user's initial message (Compl. p. 63).	¶123	col. 24:51-54

• Identified Points of Contention:
  • Scope Questions (Means-Plus-Function): As claim 15 uses means-plus-function language, a central dispute will be whether the structures within the Accused Products that perform the claimed functions are the same as or equivalent to the "click-to-text server" and its components disclosed in the patent's specification ('897 Patent, Fig. 1, col. 4:56-62).
  • Technical Questions: It may be contested whether the initial welcome message and discount code (Compl. p. 63) constitutes an "installment of the text messaging subscription service" or is merely a confirmation message that precedes the actual service.

V. Key Claim Terms for Construction

For the ’887 Patent:

• The Term: "automatically" (populate a custom message)
• Context and Importance: This term appears twice in key limitations of claim 1. Its construction will be critical to determining whether the accused system's two-step process meets the claim requirements. Practitioners may focus on this term because the degree of automation is central to the invention's claimed improvement over the prior art.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification contrasts the invention with prior art that required "many user input (e.g., clicks, or screen taps)" ('887 Patent, col. 1:45-47), suggesting "automatically" could be construed broadly to mean "without additional user input after the initial interaction."
  • Evidence for a Narrower Interpretation: The detailed description of the process flow does not appear to describe any intermediate steps between the URI being sent and the message being populated, which could support a narrower interpretation requiring an instantaneous and direct software action with no intervening steps or prompts.

For the ’897 Patent:

• The Term: "means for causing (1) the mobile device to transition... and (2) the second application to automatically populate a custom text message"
• Context and Importance: This is a means-plus-function limitation under 35 U.S.C. § 112, para. 6. Its scope is not defined by the words alone, but by the corresponding structure disclosed in the specification. The entire infringement analysis for this claim will depend on identifying that structure and comparing it to the Defendant's system.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Narrower Interpretation (Specific Structure): The patent specification explicitly discloses a "click-to-text server 100" with a processor 101 and memory 103 containing "click-to-text instructions 106" as the structure performing this function ('897 Patent, Fig. 1, col. 4:56-62). Infringement will require the accused system to have this structure or a structural equivalent.
  • Evidence for a Broader Interpretation (Functional Equivalence): A party might argue that the "click-to-text server" is just one embodiment and that other server architectures could be equivalent. However, case law generally limits means-plus-function scope to the structures actually disclosed in the specification and their equivalents.

VI. Other Allegations

• Indirect Infringement: The complaint alleges that Defendant induces infringement by providing its customers with instructions, guides, manuals, and technical support that instruct and encourage them to configure and use the Accused Products in an infringing manner (Compl. ¶¶97, 130). Several screenshots from Defendant's Zendesk help center are cited as evidence of these instructions (Compl. ¶¶46, 48-49, 98).
• Willful Infringement: Willfulness is alleged based on Defendant’s knowledge of the patents from at least the filing date of the complaint (Compl. ¶¶93, 126). The complaint does not allege pre-suit knowledge of the patents-in-suit. However, it details a prior dispute over alleged copyright infringement to support a "pattern and practice of disregard for and infringement of the intellectual property rights of others," which Plaintiff may use to argue for willfulness (Compl. ¶¶61, 70).

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

This case presents focused questions of both technical and legal scope in the mobile marketing technology space. The outcome may turn on the court's resolution of the following central issues:

• A core issue will be one of structural equivalence: For the ’897 Patent’s means-plus-function claims, can the specific "click-to-text server" architecture disclosed in the specification be proven equivalent to the architecture of Emotive’s SMS Marketing Platform? The case may hinge on a detailed comparison of the respective systems' software and hardware components.
• A key evidentiary question will be one of functional mapping: Does the accused platform’s use of a "Subscribe keyword" and delivery of a discount code satisfy the specific claim language of the ’887 Patent, which requires populating a message with an "identifier associated with...the webpage" and "enroll[ing] the mobile device in a promotion"?
• A significant legal question will be the impact of alleged copying: Can Plaintiff leverage allegations of prior copyright copying to support a finding of willful patent infringement, even without evidence that Defendant had knowledge of the specific patents before the lawsuit was filed?