ContactWave LLC v. Nordstrom Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: ContactWave LLC (NM)
  • Defendant: Nordstrom, Inc. (WA)
  • Plaintiff’s Counsel: Rabicoff Law LLC
• Case Identification: 2:24-cv-00993, E.D. Tex., 12/02/2024
• Venue Allegations: Plaintiff alleges venue is proper because Defendant maintains an established place of business in the Eastern District of Texas.
• Core Dispute: Plaintiff alleges that Defendant’s unspecified products and services infringe a patent related to systems for sending messages from vendors to mobile devices based on user interactions.
• Technical Context: The technology concerns methods for transferring information, such as business contacts or advertisements, from a web-based environment to a user's mobile device and managing subsequent communications.
• Key Procedural History: The asserted patent is subject to a terminal disclaimer, which may limit its enforceable term. The patent is a continuation of a chain of applications, establishing an earlier priority date for the claimed subject matter.

Case Timeline

Date	Event
2011-10-15	Earliest Patent Priority Date ('665 Patent)
2015-02-10	'665 Patent Application Filing Date
2016-12-27	'665 Patent Issue Date
2024-12-02	Complaint Filing Date

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

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

(Issued December 27, 2016)

The Invention Explained

• Problem Addressed: The patent identifies the process of manually transferring contact information from a business's webpage to a mobile device as "cumbersome and time consuming" (’665 Patent, col. 2:18-20). The prior art, as described, lacked an automated way to send and integrate such information directly into a device’s contact list.
• The Patented Solution: The invention describes a server-based system that allows a user on a webpage to send information (e.g., a vendor's contact details) to their mobile device (’665 Patent, Abstract). The system involves a server that manages accounts for both mobile users and vendors. A key aspect of the described method is a conditional messaging scheme: after a mobile user accepts a message from a first vendor, the server is triggered to send a message from a second, competing vendor to that same user (’665 Patent, col. 13:35-54; FIG. 9B).
• Technical Importance: The technology aimed to reduce friction between web browsing and mobile device contact management, a key challenge as e-commerce and mobile internet usage grew.

Key Claims at a Glance

• The complaint does not specify claims but refers to "Exemplary '665 Patent Claims" in an unattached exhibit (Compl. ¶11). Independent claims 1 (method) and 7 (server) are central to the patent.
• Essential Elements of Independent Claim 7 (A Server):
  • One or more processors and system memories storing a software server application.
  • The application has access to a plurality of "mobile user accounts" and "vendor accounts."
  • The vendor accounts contain vendor identification and vendor messages.
  • The server is adapted to perform steps including:
    • Sending a first vendor message to a first mobile user.
    • Receiving "acceptance information" from the first mobile user.
    • "Verifying" from the acceptance information that the user has accepted the first message.
    • Sending a message from a second vendor to the first mobile user only after verifying acceptance of the first vendor's message.
• The complaint reserves the right to assert other claims (Compl. ¶11).

III. The Accused Instrumentality

Product Identification

The complaint does not identify any specific accused products, services, websites, or mobile applications by name (Compl. ¶11). It refers generally to "Exemplary Defendant Products" that are purportedly identified in an unattached document, Exhibit 2 (Compl. ¶11, ¶16).

Functionality and Market Context

The complaint does not provide sufficient detail for analysis of the accused instrumentality's functionality or market context. It alleges in general terms that Defendant makes, uses, sells, and internally tests the accused products (Compl. ¶11-12).

IV. Analysis of Infringement Allegations

The complaint alleges that infringement is detailed in claim charts included as Exhibit 2; however, this exhibit was not filed with the complaint (Compl. ¶16-17). Therefore, a detailed element-by-element analysis is not possible from the provided documents. The narrative theory is that the unspecified "Exemplary Defendant Products" practice the technology claimed in the ’665 Patent, satisfying all elements of the asserted claims literally or by the doctrine of equivalents (Compl. ¶11, ¶16).

No probative visual evidence provided in complaint.

Identified Points of Contention

• Technical Questions: A central question will be whether the accused Nordstrom system performs the specific, sequential logic required by the claims. For example, what evidence demonstrates that after a user "accepts" a first message (e.g., an order confirmation), the system is then triggered to send a message from a second, competing vendor, as recited in Claim 7?
• Scope Questions: The dispute may turn on the definition of claim terms. For instance, does a temporary, session-based user identifier on Nordstrom's e-commerce platform constitute a "mobile user account" as the patent uses the term? Further, what specific user action qualifies as "acceptance" of a "vendor message" sufficient to trigger the subsequent claim steps?

V. Key Claim Terms for Construction

"verifying ... that the first mobile user has accepted the first vendor message" (Claim 7)

• Context and Importance: The infringement analysis hinges on what action constitutes "acceptance" and what process constitutes "verifying." Practitioners may focus on this term because the plaintiff will likely argue for a broad definition (e.g., clicking a link, opening an email), while the defendant may argue for a narrower one requiring a more explicit, affirmative confirmation signal back to the server.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The claim language itself is general, referring simply to "acceptance information" without specifying its form, which could suggest any data indicating user acknowledgement (’665 Patent, col. 14:41-43).
  • Evidence for a Narrower Interpretation: The specification discusses more concrete actions, such as when a mobile application sends a "successful download signal to the server" or when the server receives "confirmation of download" (’665 Patent, col. 7:1-3, 7:17-19). This may support a definition of "acceptance" that requires a specific technical handshake or completion of a software installation, rather than a simple click.

"a first vendor message of the plurality of vendor messages of the second vendor" (Claim 1)

• Context and Importance: This phrase, with its potentially confusing syntax, is critical for defining the relationship between the vendors. The case will depend on whether this requires sending a message from the second vendor or a message about the second vendor. The claim structure strongly suggests the former, setting up a competitive advertising model.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: A party could argue the phrasing is ambiguous and could cover cross-promotional content where the first vendor sends a message that includes information about a second vendor.
  • Evidence for a Narrower Interpretation: The overall claim context, which describes separate first and second vendor accounts and a sequence of sending distinct messages, strongly supports an interpretation where the server sends a message originating from the second vendor's account after the user interacts with the first vendor’s message (’665 Patent, col. 13:28-54).

VI. Other Allegations

• Indirect Infringement: The complaint alleges that Defendant induces infringement by distributing "product literature and website materials" that instruct end users on how to use the accused products in an infringing manner (Compl. ¶14).
• Willful Infringement: The willfulness allegation is based on post-suit conduct. The complaint asserts that service of the complaint itself provides Defendant with "actual knowledge" and that any continued infringement thereafter is willful (Compl. ¶13, ¶15). No allegations of pre-suit knowledge are made.

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

1. A Core Evidentiary Question: The complaint's primary weakness is its failure to identify any specific accused product or provide the referenced claim charts. The initial phase of litigation will focus on whether Plaintiff can produce evidence that any Nordstrom system actually implements the specific and unusual business logic of the asserted claims—namely, the automated sending of a competitor's message to a user immediately after that user accepts a message from a first vendor.
2. A Definitional Scope Question: The case will likely turn on the construction of key terms. Can the patentee persuade the court that a standard e-commerce system, with its customer records and transaction notifications, constitutes the claimed system of "mobile user accounts" and "vendor accounts" that engage in the specific "verify-then-send-competitor-message" sequence? The definition of "accepted" will be particularly dispositive.
3. A Question of Infringing Acts: Lacking specifics on the accused instrumentality, a fundamental question is what act by Nordstrom constitutes infringement. Is it the operation of a back-end server system (infringing a system claim like Claim 7), the sending of messages to customers (infringing a method claim like Claim 1), or both? Clarifying the accused acts will be a necessary early step.