ContactWave LLC v. Walmart Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: ContactWave LLC (NM)
  • Defendant: Walmart Inc. (DE)
  • Plaintiff’s Counsel: Rabicoff Law LLC
• Case Identification: 2:24-cv-00995, E.D. Tex., 12/02/2024
• Venue Allegations: Plaintiff alleges venue is proper because Defendant maintains an established place of business in the district, has committed acts of infringement in the district, and Plaintiff has suffered harm there.
• Core Dispute: Plaintiff alleges that unspecified products and services offered by Defendant infringe a patent related to systems for sending messages to mobile devices.
• Technical Context: The technology addresses methods for sending information from a web source to a mobile device and managing subsequent communications based on user interaction.
• Key Procedural History: The patent-in-suit, U.S. Patent No. 9,531,665, is subject to a terminal disclaimer. It is a continuation of a 2011 application which is a continuation-in-part of a chain of applications dating back to 2005, suggesting a lengthy prosecution history. The complaint does not mention any prior litigation or post-grant proceedings involving the patent.

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 identifies the process of manually transferring a business's contact information from a website to a mobile device as a "cumbersome and time consuming way to remember contact information" ('665 Patent, col. 2:12-21).
• The Patented Solution: The invention describes a server-based system that allows a user to send contact information from a web page directly to a mobile device by, for example, clicking a link and entering a phone number ('665 Patent, Abstract; col. 4:51-65). A core aspect detailed in the claims involves a server sending a first message from a "first vendor" to a user, and upon receiving "acceptance" from that user, sending a message from a "second vendor" to the same user ('665 Patent, col. 13:14-54). Figure 6 illustrates the data flow between a web page, a server, and a mobile device to facilitate these communications.
• Technical Importance: The described technology aims to reduce friction in online-to-offline customer interactions, making it easier for consumers to save business details and, as claimed, enabling targeted follow-up messaging ('665 Patent, col. 2:1-11).

Key Claims at a Glance

The complaint does not specify which claims are asserted, instead referring to "Exemplary '665 Patent Claims" detailed in an Exhibit 2 that was not filed with the complaint (Compl. ¶11, ¶16). The patent's two independent claims are:

• Independent Claim 1 (Method): A method performed by a server for sending messages, which includes the steps of:
  • Sending a first vendor message to a first mobile user.
  • Receiving acceptance information from the first mobile user.
  • Verifying 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 the verification step.
• Independent Claim 7 (Server): A server comprising processors and memory storing an application configured to perform the same sequence of steps outlined in claim 1.

The complaint notes that Plaintiff may assert other claims, including dependent claims (Compl. ¶11).

III. The Accused Instrumentality

Product Identification

• The complaint does not identify any specific accused product, system, or service by name. It refers generally to "the Defendant products identified in the charts incorporated into this Count below (among the 'Exemplary Defendant Products')" and "numerous other devices" (Compl. ¶11).

Functionality and Market Context

• The complaint provides no description of the technical functionality of any Walmart product. It alleges only in a conclusory manner that the unspecified "Exemplary Defendant Products practice the technology claimed by the '665 Patent" (Compl. ¶16). The complaint does not provide sufficient detail for analysis of the accused instrumentality's operation or market context.

IV. Analysis of Infringement Allegations

The complaint states that infringement allegations are detailed in claim charts provided in Exhibit 2 (Compl. ¶16, ¶17). As this exhibit was not included with the complaint, a claim-chart analysis based on the provided documents is not possible. No probative visual evidence provided in complaint.

• Identified Points of Contention:
  Based on the patent's claims, the infringement analysis will likely raise several technical and legal questions:
  • Architectural Questions: Does Walmart operate a system that sends a message from a "second vendor" to a user based on that user's "acceptance" of a prior message from a "first vendor" (e.g., Walmart)? The core of the asserted independent claims requires this specific two-vendor, conditional messaging architecture.
  • Scope Questions: Claim 4, a dependent claim, requires the first and second vendors to be "competitors" ('665 Patent, col. 14:4-5). If this claim is asserted, a key question will be whether any alleged "second vendor" is a competitor of the "first vendor" and how the parties define "competitor" in this context.
  • Technical Questions: What specific action by a user constitutes "acceptance information" as required by the claims? Furthermore, what evidence can show that the accused system performs the claimed "verifying" step before sending the second message?

V. Key Claim Terms for Construction

• The Term: "second vendor"

  • Context and Importance: The concept of a "second vendor" is fundamental to the structure of independent claims 1 and 7, which require sending a message from this entity. The viability of the infringement claim depends on identifying two distinct "vendors" in the accused system's operation. Practitioners may focus on this term because its definition will determine whether the accused system's architecture can meet the claim limitations.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The claims themselves do not restrict the "second vendor" to any particular type of entity, suggesting it could be any party other than the "first vendor."
    • Evidence for a Narrower Interpretation: The specification's focus is on distinct businesses ("vendors") providing messages, often in a competitive context ('665 Patent, col. 14:4-5, claim 4). A defendant could argue that internal notifications or messages from affiliated entities within a single corporate ecosystem do not constitute messages from a "second vendor."

• The Term: "acceptance information"

  • Context and Importance: The claims require the server to receive "acceptance information" from a user before the second message can be sent. The definition of what constitutes "acceptance" is critical to establishing the timeline of events required for infringement.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The patent does not explicitly define the term, which could allow a party to argue it covers implicit actions like clicking a link in a message, opening an associated application, or simply not opting out.
    • Evidence for a Narrower Interpretation: The flowchart in Figure 9B includes the step "First Vendor Message Accepted by First Mobile Device," which may suggest an affirmative and discrete act of acceptance rather than a passive or implicit one ('665 Patent, Fig. 9B).

VI. Other Allegations

• Indirect Infringement: The complaint alleges induced infringement, claiming Defendant provides "product literature and website materials" that instruct users to use the accused products in an infringing manner (Compl. ¶14-¶15). The complaint refers to the unprovided Exhibit 2 for further details.
• Willful Infringement: The willfulness allegation is based on post-suit knowledge. The complaint asserts that the filing of the lawsuit itself provides "actual knowledge of infringement" and that any continued infringement thereafter is willful (Compl. ¶13, ¶14). No allegations of pre-suit knowledge are made.

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

1. Factual Sufficiency: A threshold issue, stemming from the complaint’s lack of specificity, will be one of evidentiary basis: can the Plaintiff produce evidence of any Walmart system that performs the specific, two-vendor conditional messaging sequence recited in the asserted claims? The failure to identify an accused product or provide the referenced exhibits raises immediate questions about the factual underpinnings of the allegations.

2. Architectural Congruence: The central dispute will likely be a question of functional mapping: does any accused system feature a "first vendor" and a "second vendor" as distinct entities? The case may turn on whether Plaintiff can prove that an interaction with a Walmart-initiated message triggers a subsequent, conditional message from a separate commercial entity as required by the patent.

3. Claim Construction: The outcome will also depend on a question of definitional scope: can the term "acceptance information" be construed to cover general user engagement metrics, or does it require a more explicit, affirmative user action? The interpretation of this term will be critical in determining whether the accused system performs the ordered steps of the claims.