ContactWave LLC v. Kayak Software Corp

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: ContactWave LLC (New Mexico)
  • Defendant: Kayak Software Corporation (Delaware)
  • Plaintiff’s Counsel: Silverman, McDonald & Friedman; Rabicoff Law LLC
• Case Identification: 1:25-cv-01189, D. Del., 09/24/2025
• Venue Allegations: Plaintiff alleges venue is proper in the District of Delaware because Defendant is incorporated in Delaware and has committed acts of patent infringement in the district.
• Core Dispute: Plaintiff alleges that Defendant’s products and services infringe a patent related to an information messaging system that facilitates communication between vendors and mobile users.
• Technical Context: The technology addresses methods for delivering information and messages from businesses to consumers' mobile devices, particularly in response to user interactions with online content.
• Key Procedural History: The asserted patent claims priority through a long chain of continuation and continuation-in-part applications. The complaint does not specify any other significant procedural history such as prior litigation or administrative challenges to the patent.

Case Timeline

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

U.S. Patent No. 9,531,665 - "Information messaging system"

The Invention Explained

• Problem Addressed: The patent's background section describes the process of manually transferring a business's contact information from a webpage to a mobile device as "cumbersome and time consuming" (’665 Patent, col. 2:14-20). It notes the lack of a prior art system to send contact information published on a web page directly to a mobile device for integration into the device's contact list without manual entry (’665 Patent, col. 2:21-27).
• The Patented Solution: The invention, as described in the specification, discloses a system involving a server that receives a user request from a webpage to send information to a mobile device (’665 Patent, Abstract). The system verifies the device and manages the transmission of information, which can then be automatically saved into the device's native contact list (’665 Patent, col. 2:31-37; Fig. 6). The claims, however, focus on a specific method of sending sequential messages from different vendors to a mobile user based on the user's acceptance of a prior message (’665 Patent, col. 13:16-54).
• Technical Importance: The described technology aims to automate the transfer of online information to mobile devices, streamlining the process for consumers to save business details and for businesses to engage with potential customers (’665 Patent, col. 2:1-6).

Key Claims at a Glance

The complaint does not identify specific claims but refers to "exemplary claims" (’665 Patent, Compl. ¶11). The patent’s first independent method claim is Claim 1.

• Independent Claim 1:
  • A method performed by a server for sending messages from vendors to mobile users.
  • The server has access to a plurality of mobile user accounts and a plurality of vendor accounts.
  • Sending a first vendor message from a first vendor to a first mobile user.
  • Receiving acceptance information from the first mobile user indicating acceptance of the first vendor message.
  • Verifying that the first mobile user has accepted the first vendor message.
  • Sending a second vendor's message to the first mobile user only after verifying acceptance of the first vendor's message.

The complaint does not explicitly reserve the right to assert dependent claims.

III. The Accused Instrumentality

Product Identification

The complaint refers generally to "Exemplary Defendant Products" and states they are identified in charts included as Exhibit 2 (’665 Patent, Compl. ¶11). However, Exhibit 2 was not filed with the complaint.

Functionality and Market Context

The complaint does not describe the functionality of the accused products. Defendant Kayak Software Corporation operates a travel metasearch engine that allows users to search for and book flights, hotels, rental cars, and other travel services provided by third-party vendors (Compl. ¶3). The service is accessible via website and mobile applications. The complaint alleges that Defendant’s products "practice the technology claimed by the ’665 Patent" but provides no specific operational details (’665 Patent, Compl. ¶16).

IV. Analysis of Infringement Allegations

The complaint states that Exhibit 2 contains "charts comparing the Exemplary ’665 Patent Claims to the Exemplary Defendant Products" (’665 Patent, Compl. ¶16). As this exhibit is not available, a claim chart summary cannot be produced. The infringement theory must be inferred from the patent claims and the general nature of the defendant's business. The core allegation is that the accused products "satisfy all elements of the Exemplary ’665 Patent Claims" (’665 Patent, Compl. ¶16).

No probative visual evidence provided in complaint.

• Identified Points of Contention:
  Based on the language of independent claim 1 and the presumed functionality of a travel aggregator service, several points of contention may arise.
  • Scope Questions: A central question may be whether the display of search results from multiple travel vendors (e.g., an airline and a hotel) on Defendant's platform constitutes the sequential "sending" of "vendor messages" as claimed. The claim requires that a message from a second vendor is sent only after verifying "acceptance" of a message from a first vendor. It is a question for the court whether a user's standard interaction with a search results page fulfills this specific conditional logic.
  • Technical Questions: The analysis will likely focus on what specific user action within the accused products constitutes "acceptance information indicating the first mobile user's acceptance" of a "first vendor message." Another technical question is whether Defendant's system architecture performs the claimed server-side verification step before presenting information from a second vendor.

V. Key Claim Terms for Construction

• The Term: "vendor message"

• Context and Importance: This term is fundamental, as the entire claimed method revolves around the sending and acceptance of these messages. The definition will determine whether a standard display of information in a search result qualifies, or if a more discrete and targeted communication is required.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The specification states that a "vendor message may be in the form of text, image, audio, and video and may comprise of an offer, sale, coupon, advertisement, notification etc." (’665 Patent, col. 11:38-41). This broad list could support an argument that a search result entry with pricing and details is a "vendor message."
  • Evidence for a Narrower Interpretation: The claim structure—sending a message, receiving explicit acceptance, verifying it, and then sending a second message—suggests a transactional communication that a user must affirmatively act upon, rather than a passive display of information that a user might simply view or click through.

• The Term: "acceptance information indicating the first mobile user's acceptance"

• Context and Importance: This term serves as the direct trigger for the final step of the claim. Its construction is critical to determining whether the prerequisite for sending the second vendor's message is met. Practitioners may focus on this term because infringement hinges on whether a user's interaction with Defendant's service generates this specific type of information.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: A party could argue that any user interaction showing interest, such as clicking on a search result for a first vendor, constitutes "acceptance." The patent does not explicitly define the form of the acceptance information in the claim itself.
  • Evidence for a Narrower Interpretation: Figure 9B depicts a distinct process block for "First Vendor Message Accepted by First Mobile Device," which implies a discrete, confirmable event rather than an implicit user behavior like a click. (’665 Patent, Fig. 9B). This may support a narrower construction requiring an explicit "accept" or "confirm" action.

VI. Other Allegations

• Indirect Infringement: The complaint alleges inducement of infringement based on Defendant's distribution of "product literature and website materials" that allegedly instruct end users on how to use the accused products in an infringing manner (Compl. ¶14).
• Willful Infringement: The willfulness allegation appears to be based on post-suit knowledge. The complaint asserts that service of the complaint itself provides Defendant with "actual knowledge of infringement" and that any continued infringement thereafter is willful (Compl. ¶¶13-14).

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

• A core issue will be one of definitional scope: can the claim term "vendor message" be construed to cover the presentation of search results on a travel aggregator website, and can a standard user click-through be considered "acceptance information" that triggers the sending of a second, distinct vendor message as required by the claim's specific logic?
• A key evidentiary question will be one of technical operation: does the accused system's architecture actually implement the conditional logic of Claim 1? Specifically, does the system verify a user's "acceptance" of information from a first vendor before, and as a prerequisite to, transmitting information from a second vendor to that same user?