DCT

2:23-cv-00139

Flip Phone Games Inc v. PLR Worldwide Sales Ltd

Log In

I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: Flip Phones Games Inc. v. PLR Worldwide Sales Limited, 2:23-cv-00139, E.D. Tex., 03/31/2023
  • Venue Allegations: Venue is alleged to be proper because the Defendant is not a resident of the United States, allowing suit in any judicial district.
  • Core Dispute: Plaintiff alleges that Defendant’s mobile games, including the "Gardenscapes" and "Homescapes" titles, infringe five patents related to updating in-game content and providing dynamic in-game "hot spots."
  • Technical Context: The technology at issue involves server-side systems for dynamically delivering new content, advertising, and interactive events to mobile games that are already installed on a user's device.
  • Key Procedural History: The complaint alleges Defendant had pre-suit knowledge of four of the five patents-in-suit since at least January 2021, stemming from business discussions where Plaintiff’s predecessor allegedly shared its patent portfolio. For the application that led to the '202 patent, the Patent Trial and Appeal Board (PTAB) reversed an examiner's rejection. For the '662 patent, an examiner is said to have withdrawn a rejection under 35 U.S.C. § 101 after reviewing the applicant's arguments.

Case Timeline

Date Event
2007-06-26 Earliest Priority Date ('202, '958, '056, '089, '662 Patents)
2014-04-01 '089 Patent Issued
2015-01-20 Applicant appealed rejection of '202 patent's application to PTAB
2015-07-17 Examiner issued post-Alice rejection for '662 patent application
2015-11-17 Examiner withdrew post-Alice rejection for '662 patent application
2016-02-02 PTAB reversed Examiner's rejection of '202 patent's application
2016-08-30 '662 Patent Issued
2017-08-15 '202 Patent Issued
2020-04-14 '958 Patent Issued
2021-01-19 Plaintiff alleges Defendant gained knowledge of '202, '958, '089, and '662 patents
2021-09-14 '056 Patent Issued
2023-03-31 Complaint Filed

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

U.S. Patent No. 9,731,202 - “Methods and Systems for Updating In-Game Content”

  • Patent Identification: U.S. Patent No. 9,731,202, titled “Methods and Systems for Updating In-Game Content,” issued on August 15, 2017 (Compl. ¶15).

The Invention Explained

  • Problem Addressed: The patent’s background section describes the problem of mobile games becoming repetitive and familiar to players, causing them to lose interest and stop playing ('202 Patent, col. 1:29-32).
  • The Patented Solution: The invention provides a server-based method to solve this problem by “updating in-game content on a mobile communication device,” which can “prolong user interest in a game” ('202 Patent, col. 2:7-11). A game on a mobile device sends a request to a server, which then checks what content to send back based on certain factors—such as the device type or telecom service—and uploads the new content to the device, keeping the game fresh ('202 Patent, Claim 1; Compl. ¶29).
  • Technical Importance: This technology enabled a shift from static, single-purchase mobile games to a dynamic "games-as-a-service" model where content could be refreshed to retain players over a longer period (Compl. ¶¶11, 32).

Key Claims at a Glance

  • The complaint asserts independent method claim 1 (Compl. ¶78).
  • The essential elements of Claim 1 include:
    • Receiving a request for updated video-game content from a mobile device where the game already exists.
    • Checking what content to send based on factors including the type of mobile device, the telecom service, or the service provider.
    • Uploading the updated content to the device, making it usable in the game.

U.S. Patent No. 10,617,958 - “Methods and Systems for Updating In-Game Content”

  • Patent Identification: U.S. Patent No. 10,617,958, titled “Methods and Systems for Updating In-Game Content,” issued on April 14, 2020 (Compl. ¶16).

The Invention Explained

  • Problem Addressed: The patent addresses the difficulty of valuing and selling permanent, static advertising space within mobile games, whose long-term popularity is uncertain ('958 Patent, col. 2:1-9).
  • The Patented Solution: The invention describes a client-server system for providing dynamically updatable in-game advertising. A server stores "pre-selected in-game advertising" and, upon receiving a request from a mobile device, checks what advertising to send and delivers it as updated content for the game ('958 Patent, col. 3:20-32, Claim 1). This allows for more flexible, time-based advertising campaigns rather than permanent placements ('958 Patent, col. 4:50-58).
  • Technical Importance: This technology provided a framework for dynamic in-game advertising, a model that allows ad campaigns to be changed over the lifecycle of a mobile game (Compl. ¶46).

Key Claims at a Glance

  • The complaint asserts independent system claim 1 (Compl. ¶92).
  • The essential elements of Claim 1 include:
    • A storage medium for storing pre-selected in-game advertising.
    • A server in communication with the storage medium.
    • An interface that receives a request for updated content from a mobile device.
    • The server is configured to receive the request, check what advertising to send, and send the stored advertising to the device as updated content.

U.S. Patent No. 11,117,056 - “Methods and Systems for Updating In-Game Content”

  • Patent Identification: U.S. Patent No. 11,117,056, titled "Methods and Systems for Updating In-Game Content," issued September 14, 2021 (Compl. ¶17).
  • Technology Synopsis: Addressing player disengagement, this patent claims a system where a server receives a request for updated game content. The server then identifies what content to send and transmits a message related to that content, where the message is pre-selected based on factors like device model type or service subscription, before sending the in-game content itself ('056 Patent, Claim 1; Compl. ¶48).
  • Asserted Claims: Independent system claim 1 (Compl. ¶108).
  • Accused Features: The complaint alleges that the Accused Games' server systems, which provide updates tailored to specific platforms like iOS or Android, infringe this patent (Compl. ¶¶113-114).

U.S. Patent No. 8,688,089 - “Methods and Systems for Providing In-Game Hot Spots”

  • Patent Identification: U.S. Patent No. 8,688,089, titled "Methods and Systems for Providing In-Game Hot Spots," issued April 1, 2014 (Compl. ¶18).
  • Technology Synopsis: This patent describes a method for providing downloadable "hot spots" to keep games fresh. A hot spot is defined as a location or item within a game that, when activated, triggers "hidden promotional content" for the user. A key aspect is that the in-game location is represented by a "non-promotional background object" ('089 Patent, col. 2:1-4, Claim 1).
  • Asserted Claims: Independent method claim 1 (Compl. ¶124).
  • Accused Features: The complaint points to in-game events in Gardenscapes, such as the "Electric Show!," which are allegedly presented as non-promotional objects that, when activated, reveal promotional content (Compl. ¶¶130-131).

U.S. Patent No. 9,427,662 - “Methods and Systems for Providing In-Game Hot Spots”

  • Patent Identification: U.S. Patent No. 9,427,662, titled "Methods and Systems for Providing In-Game Hot Spots," issued August 30, 2016 (Compl. ¶19).
  • Technology Synopsis: This patent claims a method for retrieving and displaying hot spots where a mobile device contacts a server with specific parameters (e.g., game scene, device type, user ID). The server then provides hot spot information comprising hidden content and coordinate information, which is used to designate a "non-promotional location in-game" for an object that triggers the hidden content upon activation ('662 Patent, Claim 1).
  • Asserted Claims: Independent method claim 1 (Compl. ¶141).
  • Accused Features: The complaint alleges infringement by the Accused Games' system of contacting servers with player status to download and display time-limited events at specific in-game locations (Compl. ¶¶144, 148-150).

III. The Accused Instrumentality

Product Identification

  • The complaint names the mobile games Homescapes, Fishdom, Farmscapes, Gardenscapes, ManorMatters, Township, and Wildscapes as the "Accused Games," with Gardenscapes used as a primary example (Compl. ¶67).

Functionality and Market Context

  • The Accused Games are mobile applications that connect to Defendant's remote servers to receive periodic updates (Compl. ¶¶68-69). These updates allegedly include new game content, features, and events that are tailored for different operating systems like iOS and Android (Compl. ¶82). The complaint further alleges that the games present "special offers" and promotional events that are determined by the server based on factors such as a player's in-game progress (Compl. ¶¶95, 98). A screenshot in the complaint depicts a "What's New" update log for Gardenscapes, listing new events such as "Dance Season" and an "Archaeology Race" (Compl. p. 26). The complaint alleges these games have millions of users worldwide (Compl. ¶70).

IV. Analysis of Infringement Allegations

'202 Patent Infringement Allegations

Claim Element (from Independent Claim 1) Alleged Infringing Functionality Complaint Citation Patent Citation
[a] receiving a request for the updated video-game content from the mobile communication device... The remote server receives requests for updated content when a user launches the Gardenscapes application on their mobile device. ¶81 col. 8:15-24
[b] checking what updated video-game content to send based on one of the factors including a type of the mobile communication device... The server provides different updates configured for different device platforms (e.g., iOS vs. Android), as evidenced by the staggered release times for new versions on different platforms. ¶82 col. 10:35-44
[c] uploading updated video-game content to the communications device... The server uploads new game content, such as new events and features, to the user's mobile device, making it playable within the game. ¶83 col. 8:36-43
  • Identified Points of Contention:
    • Scope Questions: The infringement theory for element [b] rests on interpreting "type of the mobile communication device" to include the device's operating system. A central question for claim construction may be whether this term requires differentiation based on specific hardware capabilities (e.g., processor speed, screen size), as discussed in the specification, or if an OS-level distinction is sufficient.
    • Technical Questions: The complaint infers the "checking" step from the fact that updates are released at different times for different platforms. A factual question will be what evidence shows that the server actively "checks" the device type to select content, as opposed to the client application simply requesting the correct, pre-packaged build for its own operating system.

'958 Patent Infringement Allegations

Claim Element (from Independent Claim 1) Alleged Infringing Functionality Complaint Citation Patent Citation
[a] a storage medium for storing pre-selected in-game advertising for use in a video game; Defendant’s servers include or have access to a storage medium that stores "special offers" that are periodically sent to players. ¶95 col. 3:20-25
[d] wherein the server is operative to ... check what pre-selected in-game advertising to send; and The server determines which "special offers" and promotions to send to a user based on factors including "current game progress, location and so on." ¶98 col. 14:1-13
[e] send the pre-selected in-game advertising stored on the storage medium to the mobile communication device... The server sends the selected "special offers" to the user's mobile device as updated content for the game. ¶99 col. 14:48-52
  • Identified Points of Contention:
    • Scope Questions: A primary issue may be whether the "special offers" in Gardenscapes—which largely concern the sale of in-game currency and items—meet the definition of "in-game advertising." The defense may argue the patent contemplates third-party advertisements, as used in specification examples, rather than first-party microtransactions.
    • Technical Questions: The complaint alleges that the "checking" step is based in part on a user's "location," citing a general statement from the Defendant's support website. The evidentiary basis for how location is technically used to select and send a specific advertisement will likely be a point of dispute. A screenshot from the complaint shows an in-game "Hot Spot" that, when activated, presents a pop-up for the "Electric Show!" event, which is labeled as "Hidden promotional content" (Compl. p. 42).

V. Key Claim Terms for Construction

  • Term: "checking what updated video-game content to send based on ... a type of the mobile communication device" ('202 Patent, Claim 1)

    • Context and Importance: The viability of the infringement allegation for the '202 patent depends on this term being construed to cover differentiation between operating systems (e.g., iOS vs. Android). Practitioners may focus on this term because the defense will likely argue for a narrower definition requiring differentiation based on specific hardware models or capabilities.
    • Intrinsic Evidence for Interpretation:
      • Evidence for a Broader Interpretation: The claim uses the general word "type," which does not, on its face, exclude the operating system as a defining characteristic of a device's type.
      • Evidence for a Narrower Interpretation: The specification suggests that the "type" of device relates to its technical capabilities, stating that "newer mobile communication devices may be able to display a more elaborate initial message" ('202 Patent, col. 10:44-49), which could be used to argue for a construction tied to hardware differences rather than just the OS.

  • Term: "in-game advertising" ('958 Patent, Claim 1)

    • Context and Importance: This term's construction is critical, as the infringement allegation relies on classifying the accused "special offers" for virtual goods as "advertising." If the term is construed to mean only promotions for third-party products or services, the infringement case for this patent may be weakened.
    • Intrinsic Evidence for Interpretation:
      • Evidence for a Broader Interpretation: The specification refers generally to "promotional content" and an object of making the game "more profitable for the game creator" ('958 Patent, col. 4:45-48), language that could encompass first-party offers that directly generate revenue.
      • Evidence for a Narrower Interpretation: The specification repeatedly uses examples involving "third-party advertisers" and promotions for distinct entities (e.g., "third party X") ('958 Patent, col. 4:49-55), which could support a narrower construction limited to external, third-party advertisements.

VI. Other Allegations

  • Indirect Infringement: The complaint alleges both induced and contributory infringement for all five patents. Inducement is based on Defendant allegedly providing instructions on its websites and in game descriptions that encourage users to engage in the infringing acts (e.g., updating the game, activating hot spots) (Compl. ¶¶85, 101, 117, 134, 152).
  • Willful Infringement: Willfulness is alleged based on pre-suit knowledge of four of the patents since at least January 2021. The complaint claims that during business discussions, Plaintiff's predecessor sent Defendant an "Information Memorandum" that identified the asserted patents. A "2020 Patent Map" from this document is included in the complaint as evidence of this disclosure (Compl. p. 24; ¶¶72-74). For the '056 patent, which issued later, knowledge is alleged from on or around its issue date (Compl. ¶75).

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

  • Definitional Scope: A core issue will be one of definitional scope: can the term "in-game advertising," which the patent specification exemplifies with third-party promotions, be construed to cover the first-party "special offers" for virtual currency in the accused games?
  • Claim Construction and Evidence: The case may turn on a question of claim construction and evidentiary sufficiency: does providing different game builds for different operating systems (iOS vs. Android) meet the claim requirement of "checking...based on...a type of the mobile communication device," and what specific evidence demonstrates that this is a dynamic, server-side check rather than a standard software distribution practice?
  • Willfulness: A key factual dispute will concern willfulness: did the alleged disclosure of a "Patent Map" during business discussions provide Defendant with the requisite pre-suit knowledge of infringement to support a finding of willfulness and potential enhancement of damages?