DCT
1:23-cv-00087
Stodge Inc. d/b/a Postscript v. Attentive Mobile Inc.
I. Executive Summary and Procedural Information
- Case Name: Attentive Mobile Inc. v. Stodge Inc.
- Parties & Counsel:
- Plaintiff: Attentive Mobile Inc. (Delaware)
- Defendant: Stodge Inc. d/b/a Postscript (Delaware)
- Plaintiff’s Counsel: MORRIS, NICHOLS, ARSHT & TUNNELL LLP; KING & SPALDING LLP
- Case Identification: 1:23-cv-00087, D. Del., 01/25/2023
- Venue Allegations: Venue is alleged to be proper in the District of Delaware because Defendant is a Delaware corporation and therefore resides in the state.
- Core Dispute: Plaintiff alleges that Defendant’s SMS marketing platform infringes patents related to "two-tap" mobile sign-up technology that uses custom-generated deeplinks to transition a user from a web browser to a pre-populated text message.
- Technical Context: The technology at issue streamlines the process for mobile users to subscribe to marketing text messages, a critical function for e-commerce businesses seeking to engage customers.
- Key Procedural History: The complaint alleges that Defendant had pre-suit knowledge of U.S. Patent Nos. 11,416,887 and 11,416,897 at least as of September 21, 2022, when it cited them in an Information Disclosure Statement submitted to the USPTO during the prosecution of its own patent application.
Case Timeline
| Date | Event |
|---|---|
| 2017-05-26 | Earliest Priority Date for ’887, ’897, and ’074 Patents |
| 2022-08-16 | U.S. Patent Nos. 11,416,887 and 11,416,897 Issue |
| 2022-09-21 | Defendant allegedly cites ’887 and ’897 Patents in an IDS |
| 2022-11-01 | Plaintiff alleges constructive notice for ’887 and ’897 Patents |
| 2023-01-10 | U.S. Patent No. 11,553,074 Issues |
| 2023-01-11 | Plaintiff alleges constructive notice for ’074 Patent |
| 2023-01-24 | Plaintiff allegedly sends notice letter to Defendant |
| 2023-01-25 | Complaint Filed |
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's background section describes prior art mobile sign-up processes as "time-consuming and burdensome," requiring numerous user inputs that often cause users to abandon the transaction before completion (Compl. ¶37; ’887 Patent, col. 1:44-48).
- The Patented Solution: The invention provides a server-based system that simplifies this process. An "integration tag" on a webpage communicates with a "click-to-text server" (Compl. ¶77). When a user taps a promotional message, the server defines and sends a custom Uniform Resource Identifier (URI) to the user's mobile device. This URI acts as a deeplink, automatically opening the device’s native messaging application with a pre-populated message and recipient phone number, thereby reducing the sign-up process to two taps. (’887 Patent, Abstract; col. 2:5-24).
- Technical Importance: This server-driven, deeplink-based approach is designed to reduce user friction and increase conversion rates for mobile e-commerce marketing subscriptions (Compl. ¶7, ¶37).
Key Claims at a Glance
- The complaint asserts infringement of at least independent claim 1 (Compl. ¶76).
- The essential elements of Claim 1 include:
- A non-transitory processor-readable medium storing code for a click-to-text server.
- Sending an "integration tag" to a client server to be served with a webpage.
- The integration tag causes a mobile device to send user data to a server.
- Defining and sending a "uniform resource identifier (URI)" to the mobile device that "deeplinks" to a messaging application.
- The URI causes the mobile device to (1) "automatically transition" from the first application (e.g., browser) to the messaging application and (2) "automatically populate" a custom message.
- The custom message includes an address for the click-to-text server and an identifier associated with the webpage or user data.
- Receiving the custom message at the click-to-text server after a single user interaction with a send button.
- Enrolling the mobile device in a promotion "based on receiving the custom message" and without receiving any additional information.
- The complaint does not explicitly reserve the right to assert dependent claims for this patent.
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: The patent addresses the same technical problem as the ’887 Patent: the burdensome nature of traditional mobile sign-up processes that leads to high user drop-off rates (Compl. ¶37; ’897 Patent, col. 1:40-44).
- The Patented Solution: This patent claims the invention using "means-plus-function" language. It describes a server sending "means for displaying an invitation" (e.g., a promotional pop-up) and, in response to a user interaction, sending "means for causing" the mobile device to transition to a messaging app and populate a custom message (’897 Patent, col. 24:35-46). A recited element of the solution is the delivery of a subscription installment immediately after receiving the user's custom text message, but "without receiving an opt-in communication" (Compl. ¶125).
- Technical Importance: Like the ’887 Patent, this technology aims to improve the mobile user experience and increase sign-up rates by streamlining the subscription process (Compl. ¶7, ¶38).
Key Claims at a Glance
- The complaint asserts infringement of at least independent claim 15 (Compl. ¶124).
- The essential elements of Claim 15 include:
- A non-transitory processor-readable medium storing code.
- Sending, from a server to a mobile device, "means for displaying an invitation" to subscribe via a first application.
- Sending, from the server to the mobile device, "means for causing" (1) the mobile device to "transition" from the first application to a second (messaging) application and (2) the second application to "automatically populate a custom text message" based on user data.
- Receiving the custom text message from the mobile device.
- Delivering an installment of the subscription service "without receiving an opt-in communication" after receiving the custom text message.
- The complaint does not explicitly reserve the right to assert dependent claims for this patent.
U.S. Patent No. 11,553,074 - "Methods And Apparatus For Dynamic Application Deeplinking At A Mobile Electronic Device"
Issued: January 10, 2023.
Technology Synopsis: The ’074 Patent is directed to a similar server-side system for streamlining mobile subscriptions. The claimed method involves defining an "integration tag" for a webpage, receiving a mobile device identifier, sending a signal to display a promotional frame, and then sending a URI that deeplinks to a text messaging application with a pre-populated message to subscribe the user (Compl. ¶44, ¶174). Like the ’897 Patent, a key aspect is delivering a subscription installment "without receiving an opt-in communication" after the initial message is received (’074 Patent, col. 24:46-50).
Asserted Claims: Independent claim 23 is asserted (Compl. ¶173-174).
Accused Features: The accused functionality is Defendant’s "two-touch" mobile sign-up process, which uses popups on its customers' websites to initiate a pre-populated SMS message for subscription enrollment (Compl. ¶180, ¶190, ¶196).
III. The Accused Instrumentality
Product Identification
- Postscript’s SMS Marketing Platform and other integrated offerings and services (collectively, "the Accused Products") (Compl. ¶8, ¶53).
Functionality and Market Context
- The complaint alleges the Accused Products implement a "Two-Touch opt-in" feature, which it markets to e-commerce businesses to grow their SMS subscriber lists (Compl. ¶54, ¶56). The process begins when a user on a mobile website interacts with a call-to-action (CTA) on a popup, such as one offering a discount (Compl. p. 14, FIG. 1). This first "touch" allegedly uses a deeplink to launch the user’s native messaging application with a pre-populated text message addressed to the business (Compl. ¶54, p. 14, FIG. 2). The second "touch" occurs when the user sends this message, thereby subscribing to the marketing service (Compl. ¶54, p. 15, FIG. 3).
- The complaint positions Defendant Postscript as a "direct competitor" of Plaintiff Attentive in the mobile messaging platform industry (Compl. ¶8).
IV. Analysis of Infringement Allegations
’887 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| [A]t least one non-transitory processor-readable medium storing code configured to be executed by a processor of a click-to-text server... | The Accused Products are software applications intended to be stored on a non-transitory medium and executed by a processor of a server that provides SMS marketing services. | ¶79-80 | col. 21:40-43 |
| send, to a client server, an integration tag configured to be served with a webpage... the integration tag configured to cause a mobile device... to send user data... | Postscript instructs its customers to create mobile popups using the Accused Products, which comprise integration tags that collect user data such as phone numbers or email addresses. | ¶88-92 | col. 21:44-49 |
| 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... | The Accused Products use a URI associated with a "keyword" that, when a user interacts with a popup button, deeplinks to the user's messaging app and auto-generates a message with a pre-populated identifier. | ¶93-97 | col. 21:50-65 |
| receive the custom message at the click-to-text server... | After the user sends the pre-populated message, the Accused Products' server receives it and responds with a promotional message, such as a coupon code. The screenshot on page 54 of the complaint shows the server receiving the initial message and sending the confirmation/coupon reply. | ¶100 | 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. | Once the user sends the message, the Accused Products enroll the user and deliver the promotion (e.g., a discount code) without requiring any further information from the device. | ¶101 | col. 22:3-8 |
- Identified Points of Contention:
- Scope Questions: A potential dispute may arise over the term "click-to-text server." The complaint alleges Postscript operates such a server (Compl. ¶81), but the defense may argue its distributed cloud-based architecture does not meet the structural or functional definition of the single "server" entity as contemplated by the patent.
- Technical Questions: A key question will be whether the identifiers allegedly included in Postscript's pre-populated messages (e.g., "ref: JOCO15 sid: g_CCY," shown in the complaint at p. 53) meet the claim requirement of "an identifier associated with at least one of the webpage or the user data" and are used by the server in the claimed manner.
’897 Patent Infringement Allegations
| Claim Element (from Independent Claim 15) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| send... means for displaying an invitation to subscribe to a text messaging subscription service via a first application. | Postscript's platform sends code to its customers' websites that generates mobile popups inviting users to subscribe to SMS marketing. | ¶136-140 | col. 24:35-38 |
| send... means for causing (1) the mobile device to transition from the first application to a second application different... and (2) the second application to automatically populate a custom text message... | Interacting with the popup invitation launches the user's native messaging app with a pre-populated message containing a keyword and other user data. The screenshot on page 79 of the complaint illustrates this transition from a website to a messaging app. | ¶141-144 | col. 24:39-46 |
| receive, from the mobile device, the custom text message in response to the mobile device detecting a second interaction with the messaging application... | The Accused Products' server receives the custom message after the user performs a second interaction (tapping "send" in the messaging app). | ¶149 | 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. | Upon receiving the user's message, the platform sends back a message that includes a subscription benefit (e.g., a coupon), constituting an installment of the service, without an intervening opt-in confirmation step. | ¶150-151 | col. 24:51-54 |
- Identified Points of Contention:
- Scope Questions: As claim 15 uses means-plus-function language, its scope is limited to the corresponding structures disclosed in the patent's specification and their equivalents. A central question for the court will be to identify those structures (e.g., specific server-side software modules or algorithms) and determine whether the accused Postscript platform contains identical or equivalent structures that perform the claimed functions.
- Technical Questions: The analysis may focus on whether the initial reply from the Postscript server (e.g., "Thanks for subscribing! Here's your coupon...") qualifies as "an installment of the text messaging subscription service" as required by the claim, or if it is merely a confirmatory message that falls outside the claim's scope.
V. Key Claim Terms for Construction
For the ’887 Patent:
- The Term: "click-to-text server"
- Context and Importance: This term defines the central component of the claimed system. The infringement analysis depends on whether Defendant's server infrastructure, which the complaint alleges includes specific IP addresses and utilizes API endpoints, meets this definition (Compl. ¶69, ¶81-82).
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification describes the server functionally as having a processor and memory containing modules for an "integrator" and "click-to-text" process, which could be read to cover any server architecture performing these functions (’887 Patent, col. 5:3-31; Fig. 1).
- Evidence for a Narrower Interpretation: The detailed description and figures illustrate a specific, unitary server block diagram (Fig. 1), which could be argued to limit the term to architectures that closely mirror that specific embodiment (’887 Patent, Fig. 1).
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 governed by 35 U.S.C. § 112(f). Its scope is not its literal language but the "corresponding structure" in the specification that performs the recited function. Practitioners may focus on this term because the infringement determination will require a direct comparison between the accused product's implementation and the patent's disclosed algorithms for generating and sending the deeplinking URI.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation (i.e., identifying more corresponding structure): A party could argue the structure includes the entire server-side process that receives the initial POST request, identifies the user's device type, selects the appropriate URI syntax, and sends the HTTP response containing that URI (’897 Patent, col. 9:16-41).
- Evidence for a Narrower Interpretation (i.e., identifying less structure): A party could argue the structure is limited to the specific code block or algorithm that generates the "sms:" string itself, potentially excluding the surrounding server logic (’897 Patent, col. 12:29-34, describing the "getSmsLink" function).
VI. Other Allegations
- Indirect Infringement: The complaint alleges inducement of infringement by asserting that Defendant provides its customers with instructions, documentation, user guides, and technical support that encourage and direct them to implement the accused "two-touch" sign-up functionality (Compl. ¶113, ¶162). The complaint also references contractual End User License Agreements as a means of control (Compl. ¶114, ¶163).
- Willful Infringement: Willfulness allegations for the ’887 and ’897 Patents are based on alleged pre-suit knowledge, stemming from Defendant's citation of these patents in an Information Disclosure Statement filed with the USPTO on September 21, 2022 (Compl. ¶121, ¶170). For the ’074 Patent, willfulness is alleged based on notice provided by letter and the filing of the complaint itself (Compl. ¶223).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of claim scope and construction: can the term "click-to-text server," as described in the ’887 Patent, be construed to cover the distributed, cloud-based server and API architecture that the complaint alleges Defendant uses? Similarly, for the ’897 Patent, the case will depend on the court's construction of the "corresponding structure" for the "means for causing" limitations.
- A key evidentiary question will be one of technical operation: does the accused Postscript platform's use of popups and deeplinks perform the specific, multi-step functions required by the asserted claims? This will involve a detailed comparison of how the accused system generates and uses identifiers in its pre-populated messages versus the functions described in the patents.
- A central question for damages will be one of pre-suit knowledge: does Defendant's alleged citation of the ’887 and ’897 Patents in its own USPTO filings constitute knowledge of the patents and their infringement sufficient to support a finding of willful infringement?