ContactWave LLC v. Grubhub Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: ContactWave LLC (NM)
  • Defendant: GrubHub Inc. (DE)
  • Plaintiff’s Counsel: Rabicoff Law LLC
• Case Identification: 1:25-cv-05723, N.D. Ill., 05/21/2025
• Venue Allegations: Venue is asserted based on the defendant having an established place of business within the Northern District of Illinois.
• Core Dispute: Plaintiff alleges that Defendant’s food delivery platform infringes a patent related to a server-based system for sending vendor messages to mobile users.
• Technical Context: The technology addresses methods for managing communications between vendors and mobile users, particularly in a competitive context, by controlling the sequence of messages sent from different vendors.
• Key Procedural History: The asserted patent is subject to a terminal disclaimer. It claims priority from a chain of applications dating back to 2005, suggesting a long prosecution history. The complaint asserts knowledge of infringement only as of the date of its service, which may frame the willfulness allegations as being post-filing only.

Case Timeline

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

U.S. Patent No. 9,531,665 - “Information messaging system,” issued Dec. 27, 2016

The Invention Explained

• Problem Addressed: The patent describes the process of transferring a business's contact information from a website to a mobile device as "cumbersome and time consuming," requiring users to manually write down or enter the information ('665 Patent, col. 2:16-20).
• The Patented Solution: The invention proposes a server-based system that allows contact information or other messages to be sent from a source like a web page directly to a mobile device ('665 Patent, Abstract). More specifically, the claims describe a method where a server sends a message from a first vendor to a mobile user, and upon receiving "acceptance" from that user, the server is then triggered to send a message from a second vendor to that same user ('665 Patent, col. 13:36-54). This creates a system for competitive or related messaging contingent on user engagement.
• Technical Importance: The technology purports to offer a more streamlined user experience for saving business information and a novel, targeted advertising method for vendors.

Key Claims at a Glance

• The complaint asserts infringement of one or more claims, identifying them as "Exemplary '665 Patent Claims" in a referenced exhibit not attached to the public filing (Compl. ¶11). Independent claim 1 is representative of the patent's core method.
• Independent Claim 1 (Method):
  • A method performed by a server for sending messages from vendors to mobile users.
  • The server has access to mobile user accounts and multiple vendor accounts (e.g., a first vendor and a second vendor).
  • The server sends a "first vendor message" to a "first mobile user."
  • The server receives "acceptance information" from the user indicating acceptance of the first message.
  • The server verifies that the user has accepted the first message.
  • The server sends a message from the "second vendor" to the user "only after" verifying the acceptance of the first vendor's message.
• The complaint does not explicitly reserve the right to assert dependent claims, but refers generally to "one or more claims" (Compl. ¶11).

III. The Accused Instrumentality

Product Identification

The complaint references "Exemplary Defendant Products" without specifically naming them, but identifies the defendant as GrubHub Inc. (Compl. ¶3, ¶11). The accused instrumentality is therefore understood to be the GrubHub food ordering and delivery platform, which includes its website, mobile applications, and the backend server infrastructure that manages communications between restaurants and customers.

Functionality and Market Context

The GrubHub platform is a service that connects consumers with local restaurants for food delivery and pickup. The platform's core functionality involves managing user accounts, restaurant (vendor) accounts, and facilitating transactions and communications, such as order confirmations, promotional offers, and delivery status updates, between restaurants and consumers' mobile devices. The complaint does not provide further technical details about the platform's operation.

No probative visual evidence provided in complaint.

IV. Analysis of Infringement Allegations

The complaint incorporates by reference "charts comparing the Exemplary '665 Patent Claims to the Exemplary Defendant Products" contained in an external Exhibit 2, which was not filed with the complaint (Compl. ¶16). The complaint alleges these charts demonstrate that the accused products "satisfy all elements" of the asserted claims (Compl. ¶16). As the charts are not available, a detailed element-by-element analysis is not possible.

The narrative infringement theory suggests that the GrubHub platform performs the patented method. This would require the platform to: (1) send a message from a first restaurant (the "first vendor") to a user; (2) receive some form of "acceptance" from the user regarding that message; and (3) as a direct consequence, send a message from a second, different restaurant (the "second vendor") to that same user.

Identified Points of Contention

• Technical Question: The central factual dispute will likely concern the final step of the claimed method. A key question for the court will be whether the GrubHub platform is technically configured to send a message from a second restaurant if and only if a user has first "accepted" a message from an initial restaurant. The complaint does not provide specific evidence of this sequential, contingent messaging logic.
• Scope Questions: The dispute may also turn on questions of claim scope. For instance, what user action constitutes "acceptance information" in the context of the GrubHub platform? Does placing an order qualify? Furthermore, does the platform's general marketing, which might later send a user a promotion for a different restaurant, meet the claim limitation of sending the second message "only after the verifying" of the first acceptance, or does that language require a more direct and immediate causal link?

V. Key Claim Terms for Construction

"acceptance information"

Context and Importance

This term is the trigger for the claimed method's key step. Its definition is critical because it determines what user action initiates the obligation to send the second vendor's message. Practitioners may focus on this term because its scope—whether it requires an explicit "accept" action versus an implicit one like completing a transaction—could be dispositive of infringement.

Intrinsic Evidence for Interpretation

• Evidence for a Broader Interpretation: The specification does not explicitly define the term, which may support a broader reading that includes various user interactions with a vendor message.
• Evidence for a Narrower Interpretation: The patent's flow charts, such as FIG. 9B, depict "First Vendor Message Accepted" as a discrete, distinct step in the process, which could suggest a specific, affirmative user action is required rather than an inferred one ('665 Patent, FIG. 9B).

"only after the verifying"

Context and Importance

This phrase establishes the temporal and logical relationship between the user's acceptance and the sending of the second message. The case may turn on whether this requires a direct, causal sequence or if a looser, temporal sequence is sufficient.

Intrinsic Evidence for Interpretation

• Evidence for a Broader Interpretation: A party could argue this simply means the second message cannot be sent before the first is accepted, allowing for a significant time delay or an indirect relationship.
• Evidence for a Narrower Interpretation: The structure of claim 1 presents a sequential, multi-step method ('665 Patent, col. 13:36-54). This suggests a dependent relationship where the verification of acceptance is the direct and necessary prerequisite that triggers the sending of the second message, implying a tight causal link.

VI. Other Allegations

Indirect Infringement

The complaint alleges induced infringement, stating Defendant provides "product literature and website materials" that instruct end users to use the products in an infringing manner (Compl. ¶14-15). Given that the server-based method of claim 1 appears to be performed directly by Defendant, the basis for an inducement allegation against end users is not immediately clear from the complaint's text.

Willful Infringement

The complaint alleges that service of the complaint itself constitutes "actual knowledge" of infringement (Compl. ¶13). It further alleges that Defendant's continued infringement after this notice is willful (Compl. ¶14). This frames the willfulness claim as being based on post-suit conduct.

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

This case appears to hinge on a combination of factual evidence and claim interpretation. The central questions for the court will likely be:

1. A core evidentiary question of technical operation: Does the GrubHub platform, as a matter of fact, implement the specific logic claimed in the patent—namely, sending a message from a second, competing vendor that is programmatically contingent upon a user's verified "acceptance" of a message from a first vendor?

2. A key legal question of definitional scope: How should the term "acceptance information" be construed? Does it require an explicit user action, or can it be inferred from general platform activity like placing an order? The answer will define the scope of actions that can trigger the allegedly infringing conduct.

3. A further legal question of causal linkage: What is the required strength of the connection implied by the phrase "only after the verifying"? Does this limitation require the second message to be an immediate and direct result of the first acceptance, or can it be satisfied by subsequent, but logically separate, marketing activities?