Push Data LLC v. Kroger Co

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Push Data LLC (Delaware)
  • Defendant: The Kroger Company (Delaware)
  • Plaintiff’s Counsel: Beaty Legal PLLC
• Case Identification: 4:23-cv-01121, E.D. Tex., 12/20/2023
• Venue Allegations: Plaintiff alleges venue is proper in the Eastern District of Texas because Defendant maintains established places of business in the district, including a specific Kroger location in Plano, Texas.
• Core Dispute: Plaintiff alleges that Defendant’s Kroger mobile application infringes three expired patents related to geographical web browsing and location-based push notifications for mobile devices.
• Technical Context: The technology concerns using a mobile device's geographic location and user preferences to filter and deliver relevant information, a foundational capability of modern, location-aware mobile applications.
• Key Procedural History: The complaint states that all three patents-in-suit descend from a common parent application filed in 1998 and expired in November 2018. The action is therefore limited to seeking damages for past infringement.

Case Timeline

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

U.S. Patent No. 7,058,395 - “GEOGRAPHICAL WEB BROWSER, METHODS, APPARATUS AND SYSTEMS”

The Invention Explained

• Problem Addressed: The patent describes a technical environment where mobile users had to manually navigate applications to find information relevant to their location (’395 Patent, col. 2:62-64). Existing systems for determining position, such as those relying on "cell data," were considered too coarse to provide detailed, location-specific information automatically (’395 Patent, col. 3:23-26).
• The Patented Solution: The invention discloses systems where a mobile unit controls information flow on a primary network connection (e.g., cellular) by using information received on an auxiliary channel, such as from a local broadcast or a GPS receiver (’395 Patent, Abstract; col. 4:25-30). A key component is a "packet filter" that selectively passes locally broadcast data based on predefined criteria, which can then automatically trigger the access of a relevant web page or application content without direct user navigation for each step (’395 Patent, col. 10:35-51).
• Technical Importance: This technology provided a method for "geographical web browser-like functionality" using push services, enabling mobile applications to proactively deliver content based on a user's physical location (Compl. ¶44).

Key Claims at a Glance

• The complaint asserts at least claims 4 and 22 (Compl. ¶86). Independent claim 22 is representative and recites:
  • Causing a "communication push message" to be transmitted to a mobile unit, where the message includes an application-program identifying field and information about further available content.
  • The push message is described as a notification that is not a direct server response to a client request.
  • Receiving a "client-request packet" from the mobile unit, which is sent in response to a user's selection based on the notification.
  • Sending the "further content" to the mobile unit in response to the client-request packet.
• The complaint reserves the right to assert additional claims (Compl. ¶84).

U.S. Patent No. 7,292,844 - “GEOGRAPHICAL WEB BROWSER, METHODS, APPARATUS AND SYSTEMS”

The Invention Explained

• Problem Addressed: As the ’844 Patent shares its specification with the ’395 Patent, it addresses the same technical problems of providing location-relevant information to mobile users without requiring constant manual navigation (’844 Patent, col. 2:62-64).
• The Patented Solution: This patent’s claims focus on a method of identifying an information item that matches a user's interest and location, and then causing "unsolicited pushed messages" to be sent to the user's mobile device (’844 Patent, Claim 1). The system is designed to operate without needing to "continuously maintain an active user-interactive client-server application layer session" (’844 Patent, col. 23:30-34).
• Technical Importance: The invention describes a persistent, location-aware service that can push relevant data to a device even when the target application is not in the foreground, a key feature of modern mobile operating systems (Compl. ¶¶19, 48).

Key Claims at a Glance

• The complaint asserts at least claims 1, 25, 32, 37, and 46 (Compl. ¶107). Independent claim 1 is representative and recites:
  • Receiving a user interest indication.
  • Receiving a location indication for a particular mobile unit.
  • Identifying an information item that comports with both the user interest and the location.
  • Causing information about that item to be transmitted to the mobile unit via one or more "unsolicited pushed messages."
• The complaint reserves the right to assert additional claims (Compl. ¶105).

U.S. Patent No. 7,212,811 - “GEOGRAPHICAL WEB BROWSER, METHODS, APPARATUS AND SYSTEMS”

• Technology Synopsis: Sharing the same specification as the lead patents, the ’811 Patent also describes location-based information delivery. The infringement theory focuses on a specific client-server interaction sequence performed in an environment with at least two different wireless networks, such as cellular and Wi-Fi (Compl. ¶¶122, 123).
• Asserted Claims: At least claim 5 (Compl. ¶128).
• Accused Features: The complaint accuses the Kroger App and its backend servers of performing a method where a server receives a first request, responds with content availability, receives a second automatically generated request from the device, and then provides the content to the device (Compl. ¶122).

III. The Accused Instrumentality

Product Identification

The Kroger mobile application ("Kroger App") for Apple and Android platforms, along with the associated server infrastructure that supports its operation (Compl. ¶¶66, 78).

Functionality and Market Context

• The accused functionality involves the client-server architecture that delivers content, such as promotions or store information, to users of the Kroger App (Compl. ¶80). The complaint alleges that this system operates by having a server receive an initial request, respond that content is available, receive a second, automatically generated request, and then couple the content to the user's device (Compl. ¶¶101, 122). A screenshot provided in the complaint indicates the Kroger App was first released on November 29, 2010 (Compl. p. 18, ¶79).
• The complaint notes that Defendant offers a large portfolio of mobile applications for its various grocery brands, suggesting the accused technology is part of a broad mobile commerce strategy (Compl. p. 22).

IV. Analysis of Infringement Allegations

The complaint references claim chart exhibits (Exhibits D and E) that were not included with the filed complaint document. The infringement theory is therefore summarized from the narrative allegations in the complaint body.

’395 Patent Infringement Allegations

The complaint alleges that the Accused Instrumentalities perform a method that infringes the ’395 Patent (Compl. ¶¶78, 86). The narrative infringement theory describes a multi-step communication process: (1) a remote server receives a first request from a mobile device; (2) the server responds that content is available; (3) the server receives a second, automatically generated request from the device; and (4) the server couples the available content to the device (Compl. ¶80). This process is alleged to occur in an environment with access to both cellular and Wi-Fi networks (Compl. ¶81).

’844 Patent Infringement Allegations

The complaint alleges infringement of the ’844 Patent based on a nearly identical narrative theory of operation as described for the ’395 Patent (Compl. ¶¶101, 102, 107).

Identified Points of Contention

• Scope Questions: The narrative infringement theory (request → response → second request → content) does not appear to align directly with the sequence recited in asserted claim 22 of the ’395 Patent (push notification → user selection → client request → content). A central issue may be whether the Plaintiff can map the actual operation of the Kroger App to the specific limitations and sequence of the asserted claims.
• Technical Questions: The complaint alleges on "information and belief" that the second request from the mobile device is "automatically generated" (Compl. ¶80). A key factual question will be what technically triggers this second request and whether it is truly "automatic" or requires further user interaction or application-level logic that may fall outside the claim scope.

V. Key Claim Terms for Construction

• The Term: "communication push message" (’395 Patent, Claim 22) and "unsolicited pushed messages" (’844 Patent, Claim 1).
• Context and Importance: The distinction between a "push" notification initiated by a server and a "pull" request initiated by a client device is fundamental to the infringement analysis. Practitioners may focus on whether the notifications from the Kroger App, which may be triggered by the app's background processes monitoring location or user preferences, meet the claimed "push" or "unsolicited" character.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification describes "unsolicited pushed information packets which could trigger... downloading of related information" (’395 Patent, col. 4:8-10). It also clarifies that a key aspect is avoiding the need to "continuously maintain an active user-interactive client-server application layer session," which supports a broad reading that covers modern background notifications (’844 Patent, col. 23:30-34).
  • Evidence for a Narrower Interpretation: Many embodiments in the specification describe the push mechanism in the context of a mobile unit entering a "local broadcast domain" and passively receiving a locally transmitted packet (e.g., from a Wi-Fi access point) (’395 Patent, col. 10:46-51). A defendant may argue this context limits the claim term to such local, broadcast-style transmissions, as opposed to targeted notifications over the internet.

VI. Other Allegations

Indirect Infringement

The complaint includes boilerplate language that Defendant is liable for "causing to be used" the infringing products, but it does not plead specific facts to support the knowledge and intent elements required for a claim of induced infringement (Compl. ¶78).

Willful Infringement

The complaint does not contain an explicit allegation of willful infringement. It alleges that Defendant had knowledge of the patents only from the date the lawsuit was filed (Compl. ¶65). The prayer for relief requests a finding of an "exceptional case" under 35 U.S.C. § 285 for attorney's fees, but does not explicitly request enhanced damages for willfulness under § 284.

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

• A core issue will be one of procedural mapping: can the Plaintiff demonstrate through discovery that the actual client-server communication protocol of the pre-2018 Kroger App matches the specific, multi-step sequence of events recited in the asserted claims? The narrative theory in the complaint raises questions about its alignment with the language of certain asserted claims.
• A key legal question will be one of definitional scope: can terms like "unsolicited pushed messages," which are rooted in the patent’s 1998 priority date, be construed to cover notifications generated by a modern, permission-based mobile app that actively monitors a user's location and preferences in the background?
• A central evidentiary challenge will be one of historical proof: since all patents-in-suit expired in 2018, the case depends entirely on evidence of past infringement. The key question is what technical documentation, source code, and testimony concerning the operation of the accused Kroger App between 2010 and 2018 still exists and can be produced in discovery to support or refute the infringement allegations.