ContactWave LLC v. Walgreen Co

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: ContactWave LLC (NM)
  • Defendant: Walgreen Co. (DE)
  • Plaintiff’s Counsel: Rabicoff Law LLC
• Case Identification: 2:24-cv-00994, E.D. Tex., 12/02/2024
• Venue Allegations: Plaintiff alleges venue is proper because Defendant has an established place of business in the district, has committed acts of infringement in the district, and has caused Plaintiff to suffer harm there.
• Core Dispute: Plaintiff alleges that Defendant infringes a patent related to a system for sending messages from vendors to mobile users based on user acceptance.
• Technical Context: The technology concerns methods for transferring information, such as business contact details, from a web page to a mobile device through a server-mediated process that requires user consent.
• Key Procedural History: The patent-in-suit is subject to a terminal disclaimer. The complaint alleges that the service of the complaint itself provides actual knowledge for the purposes of willful and induced infringement.

Case Timeline

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

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

• Patent Identification: U.S. Patent No. 9,531,665, “Information messaging system,” issued December 27, 2016.

The Invention Explained

• Problem Addressed: The patent addresses the "cumbersome and time consuming" process for a customer to save a business's contact information from a website onto their mobile device, which typically required manual printing, writing, or re-typing (’665 Patent, col. 2:16-21). The prior art lacked a method to send contact information from a web page directly to a mobile device and integrate it into the device's contact list automatically (’665 Patent, col. 2:21-27).
• The Patented Solution: The invention proposes a server-based system that allows a user to click a link on a webpage to send associated contact information to their phone (’665 Patent, col. 6:7-14). In one embodiment, the server manages accounts for vendors and mobile users. It sends an initial message to a mobile user; upon receiving "acceptance information" from that user, the server is authorized to send a second, subsequent message from a different vendor to that same user, creating a permission-based marketing channel (’665 Patent, col. 13:35-54). Figure 6 illustrates this multi-step process involving a web page (10), a server (60), and a mobile device (13), showing the flow of requests and notifications.
• Technical Importance: The technology aimed to streamline the transfer of web-based data to mobile devices and create a method for targeted, consent-based mobile advertising before such features became natively integrated into operating systems.

Key Claims at a Glance

• The complaint does not specify which claims are asserted, instead referring to "Exemplary '665 Patent Claims'" identified in an attached exhibit (Compl. ¶11). Independent claim 1 is a representative method claim.
• The essential elements of independent claim 1 include:
  • A method performed by a server running a software server application.
  • The server has access to mobile user accounts and vendor accounts.
  • Sending a first vendor message to a first mobile user.
  • Receiving acceptance information from the first mobile user indicating acceptance of the first vendor message.
  • Verifying from the acceptance information that the first mobile user has accepted the first vendor 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 does not explicitly reserve the right to assert dependent claims.

III. The Accused Instrumentality

Product Identification

• The complaint refers to "Exemplary Defendant Products" but does not name or describe any specific product, system, or service offered by Walgreen Co. (Compl. ¶11). All infringement allegations are made by reference to charts in "Exhibit 2," which was not publicly filed with the complaint (Compl. ¶16-17).

Functionality and Market Context

• The complaint does not provide sufficient detail for analysis of the accused instrumentality's functionality or market context.

IV. Analysis of Infringement Allegations

The complaint alleges direct and indirect infringement but provides no specific factual allegations in the body of the document to map accused product features to claim elements. Instead, it incorporates by reference "charts comparing the Exemplary '665 Patent Claims to the Exemplary Defendant Products" contained in Exhibit 2 (Compl. ¶16). As Exhibit 2 was not provided, a detailed element-by-element analysis is not possible. The complaint states narratively that "the Exemplary Defendant Products practice the technology claimed by the '665 Patent" and "satisfy all elements of the Exemplary '665 Patent Claims" (Compl. ¶16).

No probative visual evidence provided in complaint.

V. Key Claim Terms for Construction

The following analysis is based on representative independent claim 1, as the complaint does not specify the asserted claims.

• The Term: "acceptance information"

• Context and Importance: This term is the linchpin of the claimed method. The server's authority to send a subsequent message from a second vendor is contingent upon receiving and verifying this "acceptance information." The definition will determine what user action (e.g., a click, an SMS reply, the launch of an application) is sufficient to trigger the final step of the claimed method. Practitioners may focus on this term because the nature of the "acceptance" signal is central to the infringement analysis.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The claim language itself is broad, not specifying the format or content of the information, only its function: "acceptance information indicating the first mobile user's acceptance" (’665 Patent, col. 13:41-43). This could suggest any data signal from which acceptance can be inferred.
  • Evidence for a Narrower Interpretation: The specification describes a specific embodiment where, after a user receives a push notification or SMS, a "mobile phone application is launched on the mobile communication device, where after the mobile phone application pulls contact information" from the server (’665 Patent, col. 8:35-40). This could support a narrower construction requiring an action mediated by a specific application, rather than a simple reply.

• The Term: "mobile user account"

• Context and Importance: The claims require the server to have access to a "plurality of mobile user accounts" that identify the user and their communication address. Whether Defendant's system creates and maintains distinct "accounts" for its users, or merely uses transient identifiers for one-off communications, will be a key dispute.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The claims state an account needs to "identify[] a respective mobile user and includ[e] address identification information" (’665 Patent, col. 13:17-20). This could be interpreted broadly to include any persistent or semi-persistent record that links a user identifier (like a phone number) to a device.
  • Evidence for a Narrower Interpretation: Figure 9A depicts a "Mobile User Account" as a formal data structure on the server containing a "Mobile Device ID," distinct from a "Vendor Account" (’665 Patent, FIG. 9A). The specification also describes creating a mobile user account "corresponding to the mobile device ID" after a mobile application is downloaded, suggesting a more formal registration process (’665 Patent, col. 11:49-51).

VI. Other Allegations

• Indirect Infringement: The complaint alleges inducement by asserting that Defendant distributes "product literature and website materials" that instruct end users on how to use the accused products in an infringing manner (Compl. ¶14). No specific examples of such materials are provided.
• Willful Infringement: Willfulness allegations are based on knowledge obtained "at least since being served by this Complaint and corresponding claim charts" (Compl. ¶15). The complaint does not allege pre-suit knowledge of the patent.

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

Given the limited information provided, the initial phase of this case will likely focus on resolving fundamental pleading deficiencies and discovery. The central questions raised by the complaint are:

1. A question of specificity: What specific Walgreen Co. products or services are the "Exemplary Defendant Products," and which specific patent claims are being asserted? The resolution of this question, presumably through amended pleadings or discovery, is a prerequisite for any substantive analysis.
2. A core technical question: Assuming an accused system is identified, does it perform the specific two-step, two-vendor messaging sequence required by claim 1? The analysis will likely focus on whether the system sends a message from a second, distinct vendor that is explicitly conditioned on a user's verified acceptance of a message from a first vendor, or if it performs a more conventional single-vendor communication.
3. A definitional question of scope: What constitutes a "mobile user account" and "acceptance information" under the patent's claims? The viability of the infringement case may depend on whether these terms can be construed broadly enough to read on the architecture of a modern, web-based customer communication platform.