Afterwords Inc v. GetTattle Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: AfterWords, Inc. (Florida)
  • Defendant: GetTattle Inc. (Delaware)
  • Plaintiff’s Counsel: Shumaker, Loop & Kendrick, LLP
• Case Identification: 8:24-cv-01386, M.D. Fla., 06/06/2024
• Venue Allegations: Plaintiff alleges venue is proper because Defendant conducts business in Florida, serves customers headquartered or operating in the state (including Hooters and Chili's), and has engaged in alleged acts of infringement within the judicial district.
• Core Dispute: Plaintiff alleges that Defendant’s customer feedback and survey system infringes a patent related to generating transaction-specific survey questions based on a customer's purchase data.
• Technical Context: The technology operates in the customer experience management sector, where businesses use software to gather and analyze customer feedback to improve operations and products.
• Key Procedural History: The complaint details pre-suit communications beginning in May 2021, when Plaintiff first notified Defendant of its potential infringement. This was followed by a call between counsel in June 2021 and further correspondence in July 2021. Plaintiff alleges it sent a subsequent notice of infringement in May 2024, approximately two weeks before filing the complaint. This history may be relevant to the allegations of willful infringement.

Case Timeline

Date	Event
2016-01-15	Earliest Priority Date for ’811 Patent
2019-10-01	’811 Patent Issue Date
2021-05-12	Plaintiff first notifies Defendant of potential infringement
2021-06-08	Call occurs between counsel for Plaintiff and Defendant
2021-07-20	Defendant’s counsel requests further explanation from Plaintiff
2021-07-23	Plaintiff responds to Defendant's counsel
2024-05-21	Plaintiff places Defendant on notice of infringement again
2024-06-06	Complaint Filing Date

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

U.S. Patent No. 10,430,811 - "Transaction-Specific Customer Survey System," issued October 1, 2019

The Invention Explained

• Problem Addressed: The patent’s background section identifies a deficiency in traditional customer surveys, describing them as often impersonal, generic, and cumbersome, which fails to provide merchants with feedback that is directly linked to a specific customer's transactional experience (e.g., the particular items purchased or the server who assisted them) (’811 Patent, col. 1:35-50). While modern Point-of-Sale (POS) systems capture this rich transactional data, it was not being leveraged to create interactive, context-aware surveys (’811 Patent, col. 1:51-64).
• The Patented Solution: The invention provides a system where transaction data from a POS terminal is stored on a server and linked to a unique "survey token" given to the customer (’811 Patent, Abstract). Later, the customer can use this token on a networked device (like a computer or smartphone) to initiate a survey. The server then retrieves the specific transaction data and generates survey questions that are directly relevant to that purchase, such as asking for feedback on a specific menu item the customer ordered (’811 Patent, col. 2:15-34; Fig. 2). The resulting feedback is stored and associated with the original transaction data for analysis (’811 Patent, Abstract).
• Technical Importance: This technology allows merchants to move beyond generic feedback and gather highly specific, actionable intelligence by tying customer sentiment directly to individual products, services, employees, or other transactional variables in near real-time (Compl. ¶10).

Key Claims at a Glance

• The complaint asserts independent claim 19 (’811 Patent, col. 29:12-col. 30:15; Compl. ¶15).
• The essential elements of independent claim 19 include:
  • A computer-implemented method starting with a survey server that receives and stores transaction data from a POS interface.
  • The transaction data must comprise "purchase detail identifiers" and a "survey token."
  • The survey server must contain a vendor database and a "campaign data structure" that has survey questions and a "configurable Condition" triggered by a purchase detail identifier.
  • The method involves the server receiving a survey token, retrieving the corresponding transaction data, and determining if the data satisfies the configurable Condition.
  • If the Condition is satisfied, the server generates a specific Survey Question.
  • The server then generates a "Survey Module" (software code) to display the question in a GUI, transmits this module to a "vendor survey interface," and receives a "Respondent Header" containing the user's answer.
• The complaint does not explicitly reserve the right to assert dependent claims.

III. The Accused Instrumentality

Product Identification

• Defendant’s "guest survey system," referred to as the Tattle Software (Compl. ¶18, ¶25).

Functionality and Market Context

• The complaint alleges that the accused system is a customer feedback platform that integrates with its clients' POS systems to collect transaction data, such as the specific menu items a customer ordered (Compl. ¶25, p. 8). Based on this data, the system allegedly generates and distributes transaction-specific surveys through various channels, including email and QR codes (Compl. ¶25, p. 9). A screenshot from a demonstration video shows a survey prompting a user to "Rate Menu Items" for a "Crispy Chicken Sandwich" they ordered, which illustrates the allegedly transaction-specific nature of the surveys (Compl. ¶25, p. 7). The complaint alleges the accused system is used by over 220 brands, including major restaurant chains, positioning it as a significant tool in the customer feedback market (Compl. ¶5).

IV. Analysis of Infringement Allegations

’811 Patent Infringement Allegations

Claim Element (from Independent Claim 19)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
(a) providing a survey server configured to receive and store transaction data generated by point-of-sale interface relating to a commercial transaction...	Defendant’s system uses a server that integrates with client POS systems to gather and store data about menu items ordered by a customer. A screenshot from a demo video shows survey distribution channels originating from a central server function.	¶25, p. 8, 9	col. 5:26-44
(i) the transaction data comprises purchase detail identifiers and a survey token; and	Defendant's surveys are allegedly linked to unique transaction data, including an "order number" which functions as a "survey token" and purchased menu items which function as "purchase detail identifiers." A screenshot shows a survey interface displaying an "Order Number" and a list of "Menu Items."	¶25, p. 10	col. 5:45-51
(ii) the survey server comprises (A) a vendor database storing a plurality of purchase detail identifiers, and (B) a campaign data structure having survey question data and a configurable Condition that is satisfied by the detection of a given purchase detail identifier;	Defendant’s system is alleged to store purchase data and use "configurable conditions" (e.g., the presence of a specific menu item) to trigger corresponding survey questions. A screenshot of "Additional Questions" about food delivery is presented as an example of a customized question based on a condition (the consumer ordering delivery).	¶25, p. 12, 13	col. 15:26-39
(b) receiving by the survey server, a survey token; (c) retrieving by survey server, the transaction data having the stored survey token...	The system allegedly receives a token (e.g., via a link in an email or a QR code scan) that identifies the transaction, which the server then uses to retrieve the associated transaction data to generate the survey.	¶25, p. 14	col. 10:40-50
(d) determining by survey server, whether the transaction data includes the given purchase detail identifier such that the configurable Condition is satisfied, and if...satisfied, generating a Survey Question...	The complaint alleges that because the accused surveys are targeted to specific menu items, the server must be analyzing transaction data to determine if a condition is met (e.g., presence of a menu item) and then generating a tailored survey question.	¶25, p. 15	col. 12:25-39
(e) generating by the survey server, a Survey Module comprising software code for displaying the at least one Survey Question as an integrated component within a graphical user interface;	Defendant’s survey questions are allegedly embedded within a graphical user interface, such as a hosted website or a mobile application, which constitutes the claimed "Survey Module."	¶25, p. 15	col. 29:8-11
(f) transmitting by the survey server, the Survey Module to a vendor survey interface; and	The complaint alleges the server transmits the survey content for display on a "vendor survey interface," which can be a merchant's website or a mobile application on a consumer's device.	¶25, p. 15	col. 17:11-21
(g) receiving by the survey server, a Respondent Header generated based on user-generated inputs in response to the at least one Survey Question.	The accused system allegedly receives survey responses from the user device back to its server. This package of data containing the responses is alleged to be the claimed "Respondent Header."	¶25, p. 16	col. 19:19-23

Identified Points of Contention

• Scope Questions: A central question will be whether the accused system's use of an "order number" falls within the scope of the claimed "survey token." The patent's definition is broad, but the defense may argue for a narrower construction based on specific embodiments. Another question is whether the accused system's logic for tailoring questions meets the specific structural requirements of a "campaign data structure" having a "configurable Condition."
• Technical Questions: What evidence does the complaint provide that the accused product contains the specific, claimed "campaign data structure"? While the complaint alleges this structure must exist to enable the observed functionality (customized questions), infringement of this structural limitation may turn on evidence of the software’s actual architecture, which is not yet available.

V. Key Claim Terms for Construction

The Term: "survey token"

• Context and Importance: This term is fundamental to linking a survey to a specific transaction. The infringement analysis depends on whether the identifiers used by the accused system (e.g., an "order number") perform the function of and are structurally equivalent to the claimed "survey token."
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification provides a broad definition, stating a "token" can be "any identifying information that identifies a particular customer or transaction," including an email address or a unique identifier generated at the point of sale (’811 Patent, col. 5:45-51). This language may support Plaintiff's position that a standard order number suffices.
  • Evidence for a Narrower Interpretation: The patent also describes the token as potentially being a "composite of multiple types of data," such as a facility ID, transaction number, and date, or being generated by the server and sent back to the client (’811 Patent, col. 5:55-61; col. 9:39-44). A defendant could argue these more complex examples limit the term to something more than a simple, pre-existing order number.

The Term: "configurable Condition"

• Context and Importance: This term defines the logic that triggers the generation of a specific survey question. Proving infringement requires showing that the accused system uses not just any logic, but logic that meets the claim’s definition of a "configurable Condition" within a "campaign data structure." Practitioners may focus on this term because it implies a specific software architecture.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The patent states that "A wide variety of configurable Conditions can be specified," with a "Typical" example being the determination of whether "the transaction data includes a particular product/service identifier" (’811 Patent, col. 15:26-30). This could support an argument that any rule based on the presence of an item meets the definition.
  • Evidence for a Narrower Interpretation: The term is consistently described as part of a larger, hierarchical "Campaign data structure" which also includes Events, Incentives, and Exit Pages (’811 Patent, col. 15:20-25). A defendant might argue that the term must be construed in this more complex structural context, and that a simple if-then rule for showing a question does not meet the limitation.

VI. Other Allegations

• Indirect Infringement: The complaint alleges that Defendant induces infringement by providing its survey system to customers (e.g., restaurant chains) and encouraging or instructing them to use it in an infringing manner (Compl. ¶39).
• Willful Infringement: The complaint alleges willfulness based on Defendant's knowledge of the ’811 Patent since at least May 12, 2021, the date of Plaintiff's first notice letter (Compl. ¶41). The complaint further alleges that despite this notice and subsequent communications between counsel, Defendant continued its allegedly infringing conduct, creating an objectively high likelihood of infringement in reckless disregard of Plaintiff's patent rights (Compl. ¶42).

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

• A core issue will be one of structural equivalence: does GetTattle’s software architecture include the specific "campaign data structure" with a "configurable Condition" as claimed in the patent, or does it achieve a similar outcome (transaction-specific questions) using a materially different and non-infringing technical implementation?
• A second key question will be one of definitional scope: can the term "survey token," which the patent describes with varying levels of complexity, be construed broadly enough to read on the "order number" allegedly used in the accused system? The outcome of claim construction on this term could be dispositive for infringement.
• The case will also present a question of objective recklessness for the willfulness claim. Given the detailed history of pre-suit communications alleged in the complaint, a central factual dispute will be whether Defendant's continued operation after receiving notice in 2021 crossed the line from a good-faith business dispute into willful disregard of a known patent right.