DCT
4:21-cv-00671
Wapp Tech Ltd Partnership v. Wells Fargo Bank NA
Key Events
Complaint
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Wapp Tech Limited Partnership (Delaware) and Wapp Tech Corp. (Alberta, Canada)
- Defendant: Wells Fargo Bank, N.A. (Federally Chartered)
- Plaintiff’s Counsel: Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C.; Heim, Payne & Chorush, LLP
- Case Identification: 4:21-cv-00671, E.D. Tex., 08/27/2021
- Venue Allegations: Plaintiff alleges venue is proper in the Eastern District of Texas because Defendant conducts substantial business and maintains regular and established places of business, including multiple banking facilities, within the district.
- Core Dispute: Plaintiff alleges that Defendant’s use of Apple’s Xcode and Google’s Android Studio development environments to create its mobile banking applications infringes five patents related to mobile application development, simulation, and performance testing.
- Technical Context: The technology relates to integrated development environments (IDEs) that allow software developers to write, test, and debug mobile applications by emulating various device characteristics and network conditions.
- Key Procedural History: The complaint references a prior lawsuit filed in 2018 (4:18-cv-501) in which Plaintiff asserted three of the same patents-in-suit ('192', '864', and '678') against Defendant for its use of different software (Micro Focus products). That case was stayed pending parallel litigation against the manufacturer, Micro Focus. Plaintiff alleges that during the stay, Defendant stipulated it would be bound by the final judgment against Micro Focus regarding invalidity. Plaintiff now argues this stipulation bars Defendant from challenging the validity of those three patents in the present case.
Case Timeline
| Date | Event |
|---|---|
| 2005-06-10 | Earliest Priority Date for all Patents-in-Suit |
| 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 |
| 2018-07-16 | Plaintiff Files Prior Lawsuit Against Defendant (4:18-cv-501) |
| 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 challenges faced by developers creating applications for a rapidly evolving mobile market with a vast number of different devices and network types, making it time-consuming and costly to test an application on every possible target device (Compl. ¶7; ’192 Patent, col. 1:23-2:10).
- The Patented Solution: The invention provides a system, integrated into an authoring environment, that emulates a mobile device and its performance characteristics, allowing a developer to profile an application’s resource usage without needing the physical hardware (Compl. ¶7; ’192 Patent, col. 2:11-20). A key aspect is the ability of the software authoring interface to visually emulate network characteristics and simulate various network connection states a mobile device might encounter ('192 Patent, Claim 1).
- Technical Importance: This technology enables developers to identify and correct system resource problems and performance bottlenecks early in the development lifecycle, before deploying the application to end-users (Compl. ¶29).
Key Claims at a Glance
- The complaint asserts at least independent Claim 1 (Compl. ¶94).
- Essential elements of Claim 1:
- A system for developing an application for a mobile device.
- The system comprises a software authoring interface configured to simultaneously visually emulate a plurality of network characteristics (indicative of device performance) via one or more profile display windows.
- The software authoring interface is also 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 need for accurate simulation of real-world network conditions to properly test mobile applications, which must function across a wide variety of carriers and networks with different performance levels ('864 Patent, col. 1:18-2:7).
- The Patented Solution: The patent describes a system for testing a mobile application by simulating network characteristics, where the simulation is specifically based on "data of interaction with networks in non-simulated environments" ('864 Patent, Claim 1). This allows the testing environment to use data from real-world network performance to create more realistic simulations ('864 Patent, col. 9:23-10:7).
- Technical Importance: Using data derived from actual network interactions improves the fidelity of the simulation, giving developers a more accurate prediction of how their application will perform for end-users on a live network (Compl. ¶82).
Key Claims at a Glance
- The complaint asserts at least independent Claim 1 (Compl. ¶102).
- Essential elements of Claim 1:
- A system for testing an application for a mobile device.
- The system comprises software configured to simulate, via one or more profile display windows, a plurality of network characteristics indicative of device performance.
- The simulated 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.
U.S. Patent No. 9,971,678 - “Systems Including Device and Network Simulation for Mobile Application Development”
- Technology Synopsis: The '678 Patent describes a system for testing a mobile application that includes a software testing interface for simulating operator network characteristics, such as bandwidth availability. The simulation is based at least in part on bandwidth data that is predetermined from interactions between mobile devices and operator networks, and the system can import real-world mobile network profiles (Compl. ¶48; '678 Patent, Claim 45).
- Asserted Claims: At least independent Claim 45 (Compl. ¶110).
- Accused Features: The simulation tools within Xcode and Android Studio that allow developers to test applications under various emulated network conditions (Compl. ¶15, 22, 110).
U.S. Patent No. 10,353,811 - “System for Developing and Testing a Mobile Application”
- Technology Synopsis: The '811' Patent claims a system for developing a mobile application that simulates device and network models, monitors resource utilization over time, and displays graphical images of that utilization. A key feature is the system's ability 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" (Compl. ¶89; '811 Patent, Claim 1).
- Asserted Claims: At least independent Claim 1 (Compl. ¶118).
- Accused Features: Profiling tools within Xcode and Android Studio, such as Xcode's "Time Profiler," which are alleged to allow developers to link resource usage (e.g., CPU) directly to the functions or code causing that usage (Compl. ¶17, 24, 118).
U.S. Patent No. 10,691,579 - “Systems Including Device and Network Simulation for Mobile Application Development”
- Technology Synopsis: Similar to the '811 Patent, the '579' Patent describes a system that monitors resource utilization of an application running on a simulation of a mobile device. The system displays a representation of the monitored resource and can "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" (Compl. ¶91; '579 Patent, Claim 15).
- Asserted Claims: At least independent Claim 15 (Compl. ¶126).
- Accused Features: Tools within Xcode and Android Studio, such as the CPU Profiler and Time Profiler, which allegedly allow developers to identify the specific code or functions responsible for resource consumption at a given moment (Compl. ¶17, 24, 126).
III. The Accused Instrumentality
Product Identification
- The complaint accuses Defendant’s use of Apple’s Xcode and Google’s Android Studio integrated development environments (IDEs) to author and verify its mobile banking applications (Compl. ¶66, 68).
Functionality and Market Context
- The complaint alleges that Defendant employs engineers who use Xcode and Android Studio to develop mobile banking applications for the iOS and Android platforms, respectively (Compl. ¶66, 68). The complaint provides significant detail on the accused functionalities of these IDEs, including tools to:
- Execute a compiled application on a wide variety of emulated or simulated devices chosen from a list, as shown in a screenshot of Xcode’s simulator options (Compl. ¶14; Compl., p. 8).
- Simulate various network conditions, such as bandwidth, packet loss, and latency, using tools like the "Network Link Conditioner," which is depicted in a screenshot (Compl. ¶15; Compl., p. 9).
- Monitor application performance properties such as CPU, memory, and network usage in real-time while the application is running on a physical or emulated device (Compl. ¶16; Compl., p. 10).
- Correspond the utilization of displayed resources with the specific functions or code responsible for that utilization, using tools like the "Time Profiler," which is shown in a screenshot correlating CPU usage to specific functions (Compl. ¶17; Compl., p. 12).
- The complaint positions the use of these tools as necessary for Defendant to meet the performance and functionality guidelines required by Apple and Google for admission to their app stores (Compl. ¶67). It further notes that Defendant has nearly 27 million active mobile users, making a well-performing mobile application a business imperative (Compl. ¶64).
IV. Analysis of Infringement Allegations
'192 Patent 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: a software authoring interface... | Defendant uses Xcode and Android Studio, which are software authoring environments, to develop its mobile banking applications. | ¶66, 94 | col. 4:15-19 |
| ...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; | The IDEs include tools like the "Network Link Conditioner" and "Android Virtual Device Manager" that display windows allowing developers to select and simulate network characteristics such as bandwidth, latency, and packet loss. | ¶15, 22 | col. 9:25-44 |
| wherein the software authoring interface is further configured to simulate a network connection state encountered by the mobile device. | The network simulation tools provide pre-configured profiles (e.g., "3G," "100% packet loss") that emulate specific network connection states. | ¶15 | col. 9:45-56 |
'864 Patent 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: software configured to simulate...a plurality of network characteristics indicative of performance of the mobile device... | Defendant uses the network simulation features within Xcode and Android Studio to test its mobile applications under various simulated network conditions. | ¶15, 22, 102 | col. 10:35-47 |
| wherein the network characteristics are based on data of interaction with networks in non-simulated environments. | The complaint alleges that the pre-set network profiles available in the IDEs (e.g., "3G," "LTE") are based on the characteristics of real-world networks. | ¶15, 22 | col. 10:48-52 |
- Identified Points of Contention:
- Scope Questions: A potential point of contention may be whether the general-purpose IDEs, as used by Defendant for internal development, meet the definition of a "system for developing an application" as contemplated by the patents. The infringement theory is based on Defendant's use of the tools, not the tools themselves as standalone products.
- Technical Questions: For the '864 Patent, a key question will be whether the generic, pre-set network profiles (e.g., "3G") provided in Xcode and Android Studio satisfy the claim limitation requiring characteristics to be "based on data of interaction with networks in non-simulated environments." The dispute may center on whether this limitation requires data from specific, observed network sessions or if it can be met by profiles based on general, publicly known network standards.
V. Key Claim Terms for Construction
The Term: "software authoring interface" ('192 Patent, Claim 1)
Context and Importance: Practitioners may focus on this term because its scope is central to the infringement analysis. Defendant may argue that the network simulation tools are separate utilities or modules, not part of the "authoring interface" itself (which might be narrowly construed as only the code editor), whereas Plaintiff will likely argue for a broader, integrated definition encompassing the entire IDE.
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The '192 Patent specification describes an "authoring environment" (element 122 in FIG. 1A) that integrates a "frame based application development tool" (112) with an "emulator" (101), suggesting that testing and simulation functions are integral to the authoring system ('192 Patent, col. 5:21-44).
- Evidence for a Narrower Interpretation: A defendant might argue that because the patent depicts the "development tool" (112) and "emulator" (101) as distinct boxes in FIG. 1A, the "authoring interface" should be construed narrowly as pertaining only to the code creation component.
The Term: "correspond the utilization of a specific displayed resource at a given time with one or more functions of the application responsible for that utilization" ('811 Patent, Claim 1)
Context and Importance: This term is critical because it requires a direct link between a measured resource (like CPU usage) and the specific "function" in the code that caused it. The dispute will question whether the accused profilers establish this specific causal link as claimed.
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification of the '811 Patent family describes and depicts profilers that display resource utilization over time alongside the application's timeline, implying a correspondence ('579 Patent, FIG. 21). The complaint points to Xcode's Time Profiler, which explicitly lists function names next to their resource consumption, as evidence of this correspondence (Compl. ¶17; Compl., p. 12).
- Evidence for a Narrower Interpretation: A defendant could argue that merely showing a function name next to a CPU percentage is a correlation, not the deeper "correspondence" required by the claim, which might imply a more granular or definitive mapping of cause and effect as described in the patent's detailed embodiments.
VI. Other Allegations
- Indirect Infringement: The complaint alleges induced infringement, stating on information and belief that Defendant instructs third parties to develop mobile applications on its behalf using Xcode and Android Studio (Compl. ¶95, 103, 111, 119, 127).
- Willful Infringement: Willfulness allegations for the '192, '864, and '678 Patents are based on Defendant's alleged knowledge of these patents from the filing date of the prior 2018 litigation (Compl. ¶97, 105, 113). For the '811 and '579 Patents, which were not in the prior suit, willfulness is alleged based on knowledge from at least the filing date of the current complaint (Compl. ¶121, 129).
VII. Analyst’s Conclusion: Key Questions for the Case
- A primary legal question will be one of issue preclusion: is Defendant contractually and legally barred from challenging the validity of the '192, '864, and '678 patents due to its stipulation in the prior, stayed litigation? The resolution of this issue could significantly streamline the case for three of the five patents asserted.
- A central infringement question will be one of evidentiary sufficiency: does the functionality of the accused IDEs meet the specific technical requirements of the claims? For instance, are the generic network profiles (e.g., "3G") in Xcode "based on data of interaction with networks in non-simulated environments" ('864 Patent), and do the profilers in Android Studio "correspond" resource utilization to specific code functions ('811 and '579 Patents) in the manner claimed?
- A key damages question will concern valuation: assuming infringement is found, how will a reasonable royalty be determined for Defendant's internal use of commercially available, multi-feature software development kits? The analysis will likely focus on apportioning the value of the allegedly patented features from the overall value of the Xcode and Android Studio platforms.