DCT

4:21-cv-00670

Wapp Tech Ltd Partnership v. Bank Of America NA

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I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: 4:21-cv-00670, E.D. Tex., 08/27/21
  • Venue Allegations: Plaintiff alleges venue is proper in the Eastern District of Texas because Defendant conducts business operations and maintains multiple regular and established places of business within the district, including several banking facilities in Plano and Murphy, Texas.
  • Core Dispute: Plaintiff alleges that Defendant’s use of Apple's Xcode and Google's Android Studio software to develop its mobile banking applications infringes five patents related to mobile application development, simulation, and performance testing.
  • Technical Context: The technology concerns integrated development environments (IDEs) which provide tools for software developers to write, compile, emulate, and test mobile applications across a variety of simulated device and network conditions before deployment.
  • Key Procedural History: The complaint details a prior lawsuit filed in 2018 by Plaintiff against Defendant asserting three of the same patents (’192, ’864, ’678) based on Defendant's use of different accused products (Micro Focus software). That case was stayed pending a parallel suit against the software manufacturer, Micro Focus, which resulted in a jury verdict and judgment in favor of Plaintiff. Plaintiff now alleges that Defendant is barred by issue preclusion and judicial estoppel from challenging the validity of those three patents. This new suit asserts infringement by different products (Xcode and Android Studio) and adds two patents (’811, ’579) that issued after the original 2018 suit was filed.

Case Timeline

Date Event
2005-06-10 Earliest Priority Date for all Patents-in-Suit ('192, '864, '678, '811, '579)
2014-12-30 U.S. Patent No. 8,924,192 Issues
2016-03-29 U.S. Patent No. 9,298,864 Issues
2018-05-15 U.S. Patent No. 9,971,678 Issues
2018-07-20 Plaintiff files prior suit against Defendant ("Pending Proceeding")
2019-07-16 U.S. Patent No. 10,353,811 Issues
2020-06-23 U.S. Patent No. 10,691,579 Issues
2021-08-27 Complaint Filed

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

U.S. Patent No. 8,924,192 - "Systems Including Network Simulation for Mobile Application Development and Online Marketplaces for Mobile Application Distribution, Revenue Sharing, Content Distribution, or Combinations Thereof"

The Invention Explained

  • Problem Addressed: The patent’s background describes the challenge facing developers of mobile applications: a rapidly expanding market with a wide variety of devices, each with different hardware and software resources. An application that functions correctly on one device may fail on another with fewer resources, making traditional physical testing costly and time-consuming (’192 Patent, col. 1:39-67).
  • The Patented Solution: The invention provides an authoring environment featuring an emulator that creates a software model of a target mobile device based on its specific performance characteristics (’192 Patent, col. 2:16-22). This allows a developer to play and monitor an application within this virtual model to identify and correct system resource problems "before" deploying it to a physical device, as illustrated in the system diagram of Figure 1A (’192 Patent, col. 5:1-21).
  • Technical Importance: This approach enabled developers to test applications against a fragmented landscape of mobile devices efficiently, reducing development costs and time-to-market in the burgeoning mobile application industry (Compl. ¶7).

Key Claims at a Glance

  • The complaint asserts at least independent Claim 1 (Compl. ¶95).
  • Claim 1 requires:
    • A system for developing an application for a mobile device comprising:
    • a software authoring interface configured to simultaneously visually emulate, via one or more profile display windows, a plurality of network characteristics indicative of performance of the mobile device when executing the application;
    • wherein the software authoring interface is further configured to simulate a network connection state encountered by the mobile device.
  • The complaint does not explicitly reserve the right to assert dependent claims for this patent.

U.S. Patent No. 9,298,864 - "System Including Network Simulation for Mobile Application Development"

The Invention Explained

  • Problem Addressed: The patent addresses the difficulty of testing how mobile applications will perform under the wide variety of real-world network conditions (e.g., varying bandwidth, latency, packet loss) that users encounter globally (’864 Patent, col. 1:18-2:7; Compl. ¶7). Physical testing in every target market is often impractical.
  • The Patented Solution: The invention is a system for testing a mobile application by using software to simulate a plurality of network characteristics. Crucially, the patent specifies that these simulated characteristics are based on data from interactions with actual, non-simulated networks, allowing for more realistic performance evaluation (’864 Patent, Abstract; col. 10:50-59). The system can display performance data to the developer, allowing for iterative improvement of the application (Compl. ¶11).
  • Technical Importance: The technology allows for realistic performance testing under diverse network conditions without requiring developers to physically access those networks, improving application reliability for a global user base (Compl. ¶29).

Key Claims at a Glance

  • The complaint asserts at least independent Claim 1 (Compl. ¶103).
  • Claim 1 requires:
    • A system for testing an application for a mobile device comprising:
    • software configured to simulate, via one or more profile display windows, a plurality of network characteristics indicative of performance of the mobile device when executing the application;
    • wherein the network characteristics are based on data of interaction with networks in non-simulated environments.
  • The complaint does not explicitly reserve the right to assert dependent claims for this patent.

Multi-Patent Capsule: U.S. Patent No. 9,971,678

  • Patent Identification: U.S. Patent No. 9,971,678, "Systems Including Device and Network Simulation for Mobile Application Development," issued May 15, 2018.
  • Technology Synopsis: This patent addresses the need to test mobile applications by simulating both operator network characteristics (like bandwidth) and device characteristics. The system is configured to import real-world mobile network profiles to ensure the simulation is realistic, addressing the problem of verifying application performance across a wide variety of devices and network conditions (’678 Patent, col. 1:22-2:9).
  • Asserted Claims: At least independent Claim 45 is asserted (Compl. ¶111).
  • Accused Features: The complaint alleges infringement through the use of Apple's Xcode and Google's Android Studio to author mobile applications (Compl. ¶111).

Multi-Patent Capsule: U.S. Patent No. 10,353,811

  • Patent Identification: U.S. Patent No. 10,353,811, "SYSTEM FOR DEVELOPING AND TESTING A MOBILE APPLICATION," issued July 16, 2019.
  • Technology Synopsis: This patent describes a system for developing and testing mobile applications that includes specific functionalities for performance monitoring. The system monitors resource utilization (e.g., CPU, memory) while an emulated application is running and, critically, includes a feature to "correspond the utilization of a specific displayed resource at a given time with one or more functions of the application responsible for that utilization," allowing developers to pinpoint performance bottlenecks in their code (’811 Patent, Abstract; Compl. ¶90).
  • Asserted Claims: At least independent Claim 1 is asserted (Compl. ¶119).
  • Accused Features: The complaint alleges infringement through the use of performance monitoring and profiling tools within Apple's Xcode and Google's Android Studio (Compl. ¶119, 16-17, 24).

Multi-Patent Capsule: U.S. Patent No. 10,691,579

  • Patent Identification: U.S. Patent No. 10,691,579, "SYSTEMS INCLUDING DEVICE AND NETWORK SIMULATION FOR MOBILE APPLICATION DEVELOPMENT," issued June 23, 2020.
  • Technology Synopsis: Similar to the '811 Patent, this patent focuses on the development process, specifically the monitoring and analysis of an application running on a "simulation" of a mobile device. The claimed invention displays the monitored resource utilization and provides a mechanism to "correspond the utilization of a specific displayed resource at a given time with one or more functions, or code, or both of the application responsible for that utilization" (’579 Patent, Abstract; Compl. ¶92).
  • Asserted Claims: At least independent Claim 15 is asserted (Compl. ¶127).
  • Accused Features: The complaint alleges that the performance analysis tools within Apple's Xcode and Google's Android Studio, which link resource usage to specific code functions, infringe this patent (Compl. ¶127, 16-17, 24).

III. The Accused Instrumentality

Product Identification

  • Apple Inc.’s Xcode and Google LLC’s Android Studio integrated development environments (IDEs) (Compl. ¶66).

Functionality and Market Context

  • The complaint alleges that Xcode and Android Studio are comprehensive software suites used by developers to create, compile, test, and debug mobile applications for the iOS and Android operating systems, respectively (Compl. ¶¶10-11, 19). The complaint alleges Defendant uses these tools to author its mobile banking applications for Apple's App Store and Google's App Store (Compl. ¶66).
  • Key functionalities highlighted in the complaint include tools that allow developers to execute a compiled application on a wide variety of emulated or simulated devices, which mimic the characteristics of physical hardware (Compl. ¶14, 21). A screenshot in the complaint shows Xcode's menu for selecting from dozens of simulated iPhone and iPad models (Compl. p. 8).
  • The complaint specifically identifies features for simulating network conditions. A screenshot of Xcode’s "Network Link Conditioner" utility shows options for simulating profiles such as "3G" or "100% packet loss," allowing developers to test app performance under adverse network conditions (Compl. ¶15; Compl. p. 9). Similarly, a screenshot of Android Studio’s "Android Virtual Device Manager" illustrates options for selecting network speed and latency (Compl. ¶22; Compl. p. 15).
  • The accused IDEs are also alleged to include sophisticated performance monitoring tools, referred to as "Instruments" in Xcode and "profilers" in Android Studio (Compl. ¶16, 23). These tools can monitor and display real-time data on an application's utilization of resources such as CPU, memory, disk, and network usage (Compl. ¶16; Compl. p. 10). The complaint further alleges that these tools, such as Xcode's "Time Profiler," can correlate resource utilization with the specific functions or code within the application responsible for that usage, a feature central to the allegations for the '811 and '579 patents (Compl. ¶17; Compl. p. 12).
  • The complaint alleges that use of these IDEs is necessary for Defendant to meet the performance and functionality guidelines required by Apple and Google for admission to their app stores and to satisfy its large mobile banking user base (Compl. ¶¶64, 67).

IV. Analysis of Infringement Allegations

8,924,192 Infringement Allegations

Claim Element (from Independent Claim 1) Alleged Infringing Functionality Complaint Citation Patent Citation
A system for developing an application for a mobile device comprising... Apple's Xcode and Google's Android Studio are alleged to be authoring environments used to create and verify mobile applications. ¶¶10-11, 19, 95 col. 5:1-12
a software authoring interface configured to simultaneously visually emulate, via one or more profile display windows, a plurality of network characteristics... The Xcode "Network Link Conditioner" and Android Studio "Android Virtual Device Manager" provide graphical user interfaces for selecting and simulating various network properties like bandwidth, packet loss, and latency. ¶¶15, 22 col. 10:50-59
wherein the software authoring interface is further configured to simulate a network connection state encountered by the mobile device. The accused tools are alleged to allow developers to simulate network conditions such as "3G" or "100% packet loss" to test application performance under those states. The screenshot of Xcode's "Network Link Conditioner" shows a graphical interface for initiating such a simulation. ¶15; Compl. p. 9 col. 12:26-34

9,298,864 Infringement Allegations

Claim Element (from Independent Claim 1) Alleged Infringing Functionality Complaint Citation Patent Citation
A system for testing an application for a mobile device comprising... Xcode and Android Studio are alleged to include tools to execute and verify the performance of compiled applications on a variety of devices and under various network conditions. ¶¶11, 14, 21, 103 col. 2:23-29
software configured to simulate, via one or more profile display windows, a plurality of network characteristics... The accused IDEs' network simulation tools provide user interfaces (display windows) where developers can select and activate network profiles (e.g., "3G") to simulate their effects on the application. ¶¶15, 22 col. 9:22-31
wherein the network characteristics are based on data of interaction with networks in non-simulated environments. The complaint alleges the tools provide preset network profiles, such as "3G," which suggests they are based on data from real-world networks. ¶15; Compl. p. 9 col. 10:50-59

Identified Points of Contention:

  • Scope Questions: A central question for the '864 patent may be whether the term "based on data of interaction with networks in non-simulated environments" can be met by providing preset profiles like "3G." The litigation may explore whether this claim language requires the use of specific, captured, real-time network data, or if it is satisfied by general, representative profiles of real-world network types.
  • Technical Questions: For the '811 and '579 patents, a key technical question will be the precise mechanism by which the accused IDEs "correspond" resource utilization to specific functions or code. While the complaint provides a screenshot of Xcode's "Time Profiler" that appears to show this linkage, the litigation will likely involve a detailed technical examination of how this functionality is implemented and whether it aligns with the specific steps recited in the claims (Compl. p. 12).

V. Key Claim Terms for Construction

  • The Term: "software authoring interface" (’192 Patent, Claim 1)

  • Context and Importance: This term's construction may be critical to defining the boundaries of the claimed "system for developing." Practitioners may focus on this term because a defendant could argue that network simulation is a distinct "testing" function separate from the core "authoring" interface where code is written. Plaintiff will likely argue for an integrated view where all tools within the IDE constitute the "authoring interface."

  • Intrinsic Evidence for Interpretation:

    • Evidence for a Broader Interpretation: The patent depicts an "authoring environment 122" that encompasses a "frame based application development tool 112" as well as an "emulator 101" which contains the profiler and simulates device operation, suggesting an integrated system (’192 Patent, Fig. 1A).
    • Evidence for a Narrower Interpretation: A defendant might argue that the distinct boxes for "development tool 112" and "emulator 101" in Figure 1A imply they are separate components, potentially supporting an argument that the simulation features are not part of the "authoring interface" itself (’192 Patent, Fig. 1A).

  • The Term: "correspond the utilization of a specific displayed resource ... with one or more functions ... of the application" (’811 Patent, Claim 1)

  • Context and Importance: This term is the central technical limitation in the two most recently issued patents. Its definition will be critical to the infringement analysis for those patents. Practitioners may focus on this term because the dispute will likely turn on whether the accused profilers perform this specific mapping function, as opposed to merely displaying resource data alongside application code without a direct, functional linkage.

  • Intrinsic Evidence for Interpretation:

    • Evidence for a Broader Interpretation: The patent specification describes a system that monitors resource utilization and allows a user to "identify one or more functions of the application responsible for utilization of a specific displayed resource at a given time" (’811 Patent, col. 16:11-15). This broad language may support an interpretation covering any tool that helps a developer make this connection.
    • Evidence for a Narrower Interpretation: The detailed process flow in Figure 7 shows separate steps for "DETERMINE RESOURCE UTILIZATION" (706) and "EVALUATE RESOURCE UTILIZATION" (708), which could suggest a multi-step, analytical process is required, potentially narrowing the scope beyond a simple visual display (’811 Patent, Fig. 7).

VI. Other Allegations

  • Indirect Infringement: The complaint alleges that Defendant induces infringement by employing or contracting with third-party developers to use Xcode and Android Studio to create mobile applications for its benefit, knowing and intending that this use will infringe the patents-in-suit (Compl. ¶¶96, 104, 112, 120, 128).
  • Willful Infringement: Willfulness is alleged based on Defendant’s knowledge of the patents dating back to at least the filing of the prior lawsuit on July 20, 2018, which asserted the '192, '864, and '678 patents (Compl. ¶¶98, 106, 114). The complaint alleges that despite this knowledge, Defendant continued its infringing activities. It further supports these allegations by referencing Defendant's own job postings that require experience with the accused Xcode software (Compl. ¶70).

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

  • A central legal issue will be one of preclusion: will the court find that Defendant is judicially estopped from challenging the validity of the '192, '864, and '678 patents based on its alleged stipulation in prior, stayed litigation to be bound by the outcome of the parallel suit against Micro Focus? An affirmative finding would significantly narrow the scope of the present case.
  • A key technical question will be one of functional specificity: do the performance profiling tools in Xcode and Android Studio, as used by Defendant, perform the specific step of "corresponding" resource utilization data with the particular "functions, or code" responsible for that usage, as required by the '811 and '579 patents? The evidence presented in the complaint suggests a direct mapping, but the precise technical operation will be a focal point of the infringement analysis.
  • An evidentiary question will be one of data sourcing: for the '864 patent, can Plaintiff provide sufficient evidence that the simulated network profiles within the accused products are "based on data of interaction with networks in non-simulated environments"? The outcome may depend on whether generic profiles like "3G" are deemed sufficient to meet this claim limitation.