Disintermediation Services Inc v. Perq Software LLC

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Disintermediation Services, Inc. (Delaware)
  • Defendant: PERQ Software, LLC (Indiana)
  • Plaintiff’s Counsel: Freeborn & Peters LLP
• Case Identification: 1:22-cv-02280, S.D. Ind., 03/21/2023
• Venue Allegations: Venue is based on Defendant's residency in Indiana and its regular and established place of business, including its headquarters, within the Southern District of Indiana.
• Core Dispute: Plaintiff alleges that Defendant’s web chat software infringes patents related to managing real-time, anonymous communications between unauthenticated website users and responders, often across different communication platforms.
• Technical Context: The technology addresses methods for maintaining stateful, persistent chat conversations over inherently stateless protocols like HTTP, without requiring users to create accounts or install special software.
• Key Procedural History: The complaint notes the patents-in-suit are part of a larger family and were examined and allowed by the USPTO after the Supreme Court’s decision in Alice, which established a heightened standard for patent eligibility of software inventions. The complaint also highlights that the patent family has been cited in numerous subsequent patent applications by other technology companies.

Case Timeline

Date	Event
2011-10-17	Earliest Priority Date for ’787 and ’466 Patents
2011	Plaintiff launched its website for web chat services
2022-05-31	U.S. Patent No. 11,349,787 Issued
2022-08-16	U.S. Patent No. 11,418,466 Issued
2023-03-21	Complaint Filed

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

U.S. Patent No. 11,349,787 - "Two-way real time communication system that allows asymmetric participation in conversations across multiple electronic platforms," Issued May 31, 2022

The Invention Explained

• Problem Addressed: The patent describes a technical landscape where real-time communication (RTC) systems like internet chat were fragmented and imposed high barriers to entry (Compl. ¶47). Prior art systems often required that both parties share a common protocol (e.g., both use the same chat application), that the initiating party know the recipient's address, and that both parties be identified to each other ('787 Patent, col. 1:63-2:3). These requirements limited spontaneous, anonymous communication, particularly on the web.
• The Patented Solution: The invention proposes a server-based system that acts as an intermediary to solve these problems ('787 Patent, Fig. 1). It allows an "unauthenticated user" on a website to initiate a conversation that the server can route to one or more responders without the user needing special software or providing identifying information ('787 Patent, col. 4:60-65). The system uses a "conversation identifier" to track and manage the conversation, enabling it to persist even if the user reloads a webpage (Compl. ¶53, ¶68).
• Technical Importance: This approach aimed to lower the friction for web-based customer support and sales chats by enabling anonymous, persistent conversations directly within a standard web browser (Compl. ¶58).

Key Claims at a Glance

• The complaint asserts independent claim 1 (Compl. ¶117).
• Claim 1 recites a system with an electronic processor configured to perform a multi-step method, including:
  • Receiving a communication request from a web browser of an "unauthenticated user".
  • Sending the browser a request for information from a "first responder".
  • Receiving a "first communication" from the user.
  • Determining a "conversation identifier" for the conversation.
  • Storing a "first association" (between the request and the identifier) and a "second association" (between the first communication and the identifier) in a persistent data store.
  • Receiving a subsequent request from the web browser for the conversation, using the identifier to retrieve the conversation history, and sending it back to the browser.
• The complaint reserves the right to assert additional claims (Compl. ¶118).

U.S. Patent No. 11,418,466 - "Two-way real time communication system that allows asymmetric participation in conversations across multiple electronic platforms," Issued August 16, 2022

The Invention Explained

• Problem Addressed: As a continuation of the '787 Patent, the '466 Patent addresses similar problems but focuses on a more complex scenario: managing communications between a single responder and multiple, distinct users on different platforms (Compl. ¶93, ¶95). This presents the technical challenge of converging and routing communications across disparate protocols (e.g., web chat, SMS, etc.) while maintaining distinct conversation threads.
• The Patented Solution: The invention describes a system where a central processor communicates with a "first user" (unauthenticated, on a web page) via a "first active communication protocol", while also communicating with a "second user" (who is different from the first) via a "second active communication protocol" that is different from the first ('466 Patent, Claim 1). The system uses separate conversation identifiers to manage and store the distinct conversations, routing communications between the single responder and the appropriate user ('466 Patent, Claim 1).
• Technical Importance: This technology purports to improve the efficiency of computer systems by allowing a single agent or backend system to seamlessly handle interactions with users across different communication channels, eliminating the need for separate, protocol-specific systems (Compl. ¶95).

Key Claims at a Glance

• The complaint asserts independent claim 1 (Compl. ¶125).
• Claim 1 recites a system with an electronic processor configured to manage communications with multiple users, including:
  • Receiving a communication request from a "first user" (unauthenticated, on a web page).
  • Engaging in a "first conversation" with the first user via a "first active communication protocol", using a "first conversation identifier".
  • Receiving a "second communication" from the "first responder" intended for a "second user".
  • Determining a "second active communication protocol" for the second user, which is different from the first.
  • Sending the second communication to the second user via the second protocol and managing the conversation using a "second conversation identifier".
• The complaint reserves the right to assert additional claims (Compl. ¶126).

III. The Accused Instrumentality

• Product Identification: The complaint identifies the accused instrumentality as "PERQ Software" (Compl. ¶3).
• Functionality and Market Context: The complaint alleges that PERQ develops and sells software that supports "omnichannel communications" and provides "web chat services" (Compl. ¶9). The core accused functionality is a system that facilitates communication between an unauthenticated web user and a responder, which may be a virtual agent (Compl. ¶74). The complaint alleges this functionality allows a user's conversation to continue with minimal disruption, addressing a technical problem of coordinating communication between different endpoints using different protocols (Compl. ¶74). The complaint does not provide further specific details on the technical operation of the accused software.

IV. Analysis of Infringement Allegations

The complaint references claim chart exhibits (Exhibits C and D) that were not included in the provided filing (Compl. ¶117, ¶125). The infringement theories are summarized below in prose based on the complaint's narrative allegations.

No probative visual evidence provided in complaint.

• ’787 Patent Infringement Allegations
  The complaint alleges that the PERQ Software constitutes a system for web-based communication that infringes Claim 1 (Compl. ¶116). The narrative theory suggests that PERQ's system comprises an electronic processor that receives requests from unauthenticated web users, initiates a conversation, and determines a conversation identifier to track it (Compl. ¶71). It is alleged that the system stores associations related to the conversation in a persistent data store and later uses the identifier to retrieve the conversation, for example, to continue it across different web pages or upon a reload (Compl. ¶70, ¶72).

• ’466 Patent Infringement Allegations
  The complaint alleges that the PERQ Software infringes Claim 1 of the ’466 Patent by coordinating seamless communication between multiple users and responders across various protocols (Compl. ¶97, ¶124). The infringement theory is that PERQ's system allows a single responder to communicate with a first, unauthenticated web user via a first protocol while also communicating with a second, different user via a second, different protocol (Compl. ¶93, ¶97). This allegedly involves determining the different protocols, using separate conversation identifiers for each conversation, and routing communications accordingly (Compl. ¶96).

• Identified Points of Contention:

  • Scope Question: A central issue may be the scope of the term "unauthenticated user". The dispute may focus on whether this term, as used in the patents, can read on users of modern web systems who may not have a formal login but may be identifiable via browser cookies or other persistent tracking technologies.
  • Technical Question: A key evidentiary question may be whether the PERQ Software's mechanism for maintaining conversation state performs the specific steps recited in Claim 1 of the ’787 Patent, such as creating and storing a "first association" and a "second association" as distinct elements. The analysis will likely scrutinize whether the accused system's functionality is technically equivalent to the claimed use of a "conversation identifier" for retrieving and continuing conversations.
  • Technical Question: For the ’466 Patent, a critical question will be whether the accused system in fact manages communications with a second user via a "second active communication protocol" that is demonstrably "different from the first" protocol used for the web-based user, as required by the claim.

V. Key Claim Terms for Construction

• The Term: "unauthenticated user" (asserted in Claim 1 of both patents)

  • Context and Importance: This term is fundamental to the patents' claimed novelty of enabling anonymous chat. Its construction will determine whether the accused system, which communicates with website visitors who have not formally logged in, falls within the claims' scope. Practitioners may focus on this term because the nature of user "authentication" on the modern web is nuanced and often involves persistent identifiers like cookies even without a formal login.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The specification suggests the invention allows users to communicate without providing "their name, e-mail address, phone number, home address, or any other identifying information" ('787 Patent, col. 5:46-50). A plaintiff could argue this list is illustrative, and the core concept is simply the absence of a required login or account creation, which would support a broader definition.
    • Evidence for a Narrower Interpretation: The specification states, "The initiator and potential responders do not need to know one another's profiles, addresses, real-time communication sources, or any other identifying information" ('787 Patent, col. 5:7-11). A defendant could argue this implies a high standard of total anonymity, and that any persistent identifier that allows the system to recognize a returning user constitutes a form of authentication that places it outside the claim scope.

• The Term: "conversation identifier" (asserted in Claim 1 of both patents)

  • Context and Importance: This is the core technical component for achieving conversation persistence. The dispute will likely center on whether a generic session ID or cookie used in a conventional web architecture performs the specific functions attributed to the "conversation identifier" in the claims.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The patent describes the identifier as something that "identifies one specific conversation" and can be a "randomly generate[d] number" ('787 Patent, col. 8:62-65). This language suggests flexibility in implementation.
    • Evidence for a Narrower Interpretation: The claims require this identifier to be used in a specific sequence of steps: determining the identifier based on a communication, storing multiple distinct associations with it, and later using it to retrieve the conversation history ('787 Patent, col. 13:20-35). A defendant might argue that a standard session cookie does not map to this specific, structured process of storing and retrieving distinct "associations."

VI. Other Allegations

• Indirect Infringement: The complaint alleges both induced and contributory infringement. The inducement claim is based on allegations that PERQ's actions—such as selling and offering to sell the accused software—induce its customers and end users to perform the infringing methods (Compl. ¶120, ¶128). The contributory infringement claim alleges PERQ knows the infringing aspects of its software are not staple articles of commerce suitable for substantial non-infringing uses (Compl. ¶119, ¶127).
• Willful Infringement: The complaint makes a general allegation that PERQ "has acted with disregard of Disintermediation's patent rights, without any reasonable basis for doing so" (Compl. ¶122, ¶130). The pleading does not allege any specific facts indicating pre-suit knowledge of the patents.

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

• A core issue will be one of definitional scope: can the term "unauthenticated user", which the patent describes as someone who does not provide identifying information, be construed to cover users of modern web chat systems who, while not logged in, may be persistently tracked by technologies like browser cookies?
• A key evidentiary question will be one of technical operation: does the PERQ Software’s method for maintaining conversation state perform the specific, multi-step process of determining a "conversation identifier" and storing discrete "first" and "second associations" as recited in the claims, or does it utilize a conventional session management technique that is functionally different?
• For the ’466 Patent, the case may turn on a question of protocol differentiation: can the plaintiff provide evidence that the accused system facilitates communication with a second user via a "second active communication protocol" that is, in a legally significant sense, "different" from the web-based protocol used with the first user?