Push Data LLC v. Nordstrom Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Push Data LLC (Delaware)
  • Defendant: Nordstrom, Inc. (Washington)
  • Plaintiff’s Counsel: Beaty Legal PLLC
• Case Identification: 4:23-cv-01123, E.D. Tex., 12/20/2023
• Venue Allegations: Plaintiff alleges venue is proper in the Eastern District of Texas because Defendant Nordstrom maintains multiple established places of business in the district, including a specific retail location in Frisco, Texas.
• Core Dispute: Plaintiff alleges that Defendant’s Nordstrom mobile application infringes four expired U.S. patents related to location-based services and push notifications for mobile devices.
• Technical Context: The patents address foundational methods for delivering geographically relevant information to mobile users, a technology that has become integral to modern mobile applications and e-commerce.
• Key Procedural History: All four asserted patents stem from a single patent application filed in November 1998. The complaint notes that all patents-in-suit expired on or about November 17, 2018, limiting the action to claims for past damages.

Case Timeline

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

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

• Issued: June 6, 2006 (Compl. ¶68)

The Invention Explained

• Problem Addressed: At the time of the invention, no technology existed "to provide local broadcast information to automatically control a network application, such as a web browser," based on a user's geographical location; users were required to manually navigate to find local information (Compl. ¶14; ’395 Patent, col. 2:57-64). Existing location methods using cellular network data were also described as providing only a "coarse idea of a user's position" (Compl. ¶16; ’395 Patent, col. 3:25-26).
• The Patented Solution: The invention describes systems and methods that allow a mobile device to receive information based on its specific location, using technologies like GPS or local wireless data packets (Compl. ¶17; ’395 Patent, col. 3:30-34). The system enables the delivery of "unsolicited pushed information packets" to a mobile device, which can then trigger actions like downloading related information from the internet, without requiring the user to maintain a constant active connection (Compl. ¶¶17, 19; ’395 Patent, col. 3:48-4:13).
• Technical Importance: The technology aimed to provide a "geographical web browser-like functionality" that could automatically surface relevant local content to a user as they moved, a significant departure from the manual, user-initiated browsing paradigms of the time (Compl. ¶44; ’395 Patent, col. 5:13-19).

Key Claims at a Glance

• The complaint asserts at least independent claim 1 and dependent claims 4 and 22 (Compl. ¶¶82, 86).
• Essential elements of independent claim 1 include:
  • Receiving a user interest indication associated with a user of a mobile unit.
  • Receiving, via a packet switched data network, information associating the user's location with a geographical location.
  • Causing a search to be performed over content to identify a result that matches the user interest and is associated with a point of presence near the user's location.
  • Causing information related to the result to be wirelessly transmitted via an "unsolicited pushed message" to the user's mobile unit.

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

• Issued: November 6, 2007 (Compl. ¶89)

The Invention Explained

• Problem Addressed: As described in the common specification shared by the patents-in-suit, the invention addresses the limitations of early mobile devices in automatically retrieving and displaying geographically relevant information (Compl. ¶14; ’844 Patent, col. 2:57-64).
• The Patented Solution: The ’844 Patent claims specific client-server communication protocols to achieve this goal. One claimed method involves sending a push message containing an "application-program-identifying field" to a specific app on a device, with the message carrying address information for downloading further content (Compl. ¶46). Another claimed method involves a multi-step synchronization process: a client sends a first request, a server sends a response indicating data availability (but not the data itself), the client app sends a second request to pull the content, and the server then provides it (Compl. ¶46; ’844 Patent, Claim 1).
• Technical Importance: These claimed methods provided a more sophisticated and efficient framework for apps to synchronize with servers and receive targeted updates based on triggers like location, moving beyond simple, manual data retrieval (Compl. ¶¶36, 46).

Key Claims at a Glance

• The complaint asserts at least independent claims 1 and 25, and dependent claims 32, 37, and 46 (Compl. ¶¶103, 107).
• Essential elements of independent claim 1 include:
  • A server receiving a first request from a mobile unit.
  • The server sending a first response indicating that content related to the request is available.
  • The server receiving a second request from the mobile unit, which is generated in response to the first response.
  • The server coupling the available content to the mobile unit.
• Essential elements of independent claim 25 include:
  • Causing a communication push message to be wirelessly transmitted to a mobile unit.
  • The message includes an "application-program identifying field" and information related to further content available for download.
  • Receiving a client-request packet from the mobile unit in response to the push message.
  • Sending the further content to the mobile unit in response to the client-request packet.

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

• Issued: May 1, 2007 (Compl. ¶110)
• Technology Synopsis: The patent, sharing a common specification with the other patents-in-suit, describes methods for providing location-aware services to mobile devices (Compl. ¶¶12-15). It focuses on specific client-server communication protocols that enable a mobile device to receive notifications about available content and then retrieve it, operable over multiple network types like cellular and WiFi (Compl. ¶¶122-123).
• Asserted Claims: At least independent claims 1 and 5 (Compl. ¶¶124, 128).
• Accused Features: The complaint accuses the Nordstrom App of using a client-server method where its server receives a request, responds with content availability, receives a second, automatically generated request, and then provides the content over cellular and WiFi networks (Compl. ¶¶122-123).

U.S. Patent No. 6,983,139 - "GEOGRAPHICAL WEB BROWSER, METHODS, APPARATUS AND SYSTEMS"

• Issued: January 3, 2006 (Compl. ¶131)
• Technology Synopsis: The patent discloses methods for delivering geographically relevant information to mobile users by combining user preferences with location data (Compl. ¶19). A server uses these inputs to filter information and generate unsolicited push messages to notify a user when they enter a geographical area where relevant content or services are available, without requiring an active client-server session to be maintained at all times (Compl. ¶19; ’139 Patent, Claim 1).
• Asserted Claims: At least independent claim 22 and dependent claims 43 and 90 (Compl. ¶¶145, 147).
• Accused Features: The complaint accuses the Nordstrom App and its backend systems of performing a multi-step client-server communication method to deliver content to users' mobile devices over different wireless networks (Compl. ¶¶143-144).

III. The Accused Instrumentality

Product Identification

• The "Accused Instrumentalities" are identified as the Nordstrom mobile application ("Nordstrom App") and its associated infrastructure, including Defendant's servers and client-side software operating on mobile electronic devices (Compl. ¶¶66, 78).

Functionality and Market Context

• The complaint alleges that the Accused Instrumentalities perform a specific multi-step communication method. This method involves a remote server receiving an initial request from a mobile device, the server responding with a notification that content is available, the server then receiving a second, automatically generated request from the device, and finally, the server providing the available content (Compl. ¶¶80, 101, 122, 143). This functionality is alleged to be performed in an environment with access to at least two wireless networks, such as cellular and WiFi (Compl. ¶¶81, 102, 123, 144). The complaint asserts that such location-based push services have "significant commercial value for companies like Nordstrom" (Compl. ¶62).

IV. Analysis of Infringement Allegations

No probative visual evidence provided in complaint.

The complaint states that exemplary infringement analyses for the asserted patents are set forth in Exhibits E, F, G, and H (Compl. ¶¶82, 103, 124, 145). As these exhibits were not provided with the complaint, the infringement allegations are summarized below based on the narrative theory presented in the body of the complaint.

7,058,395 Patent Infringement Allegations

Plaintiff alleges that the Nordstrom App infringes at least claims 1, 4, and 22 of the ’395 Patent (Compl. ¶¶82, 86). The core of the infringement theory is that the accused system performs a method where a remote server receives a request from a mobile device, responds that content is available, receives a second automatically generated request, and then couples the content to the device (Compl. ¶80). This process is alleged to occur over at least two types of wireless networks, such as cellular and WiFi (Compl. ¶81). A central question may be whether the server's response indicating content availability constitutes an "unsolicited pushed message" as required by claim 1 of the ’395 Patent, given that it follows an initial request from the device.

7,292,844 Patent Infringement Allegations

Plaintiff alleges that the Nordstrom App infringes at least claims 1, 25, 32, 37, and 46 of the ’844 Patent (Compl. ¶¶103, 107). The narrative infringement theory is identical to that presented for the ’395 Patent, describing a multi-step client-server communication process (Compl. ¶101). This narrative appears to map closely to the language of asserted claim 1 of the ’844 Patent. Key questions may involve the factual operation of the accused system, such as whether the server's initial response merely indicates availability or delivers the content itself, and whether notifications from the Nordstrom App contain an "application-program identifying field" as required by asserted claim 25.

Identified Points of Contention

• Scope Questions: A recurring question will be whether a server response within a client-initiated session can be construed as an "unsolicited pushed message" (’395 Patent, Claim 1). The interpretation of "unsolicited" may be a central point of dispute.
• Technical Questions: The infringement theory for the ’844 Patent relies on a specific, multi-step communication protocol. A key technical question will be whether the Nordstrom App’s actual operation involves a first server response that only indicates content availability, followed by a distinct and separate second request from the client to pull that content, as recited in claim 1 of the ’844 Patent.

V. Key Claim Terms for Construction

The Term: "unsolicited pushed message"

• (from claim 1 of the ’395 Patent)
• Context and Importance: This term is critical because the complaint's infringement narrative describes a request-response sequence (Compl. ¶80). Whether a server's response to a client's request can be deemed "unsolicited" will likely be a dispositive issue for infringement of the ’395 patent. Practitioners may focus on this term to determine if the accused system's notifications, which may follow a user action, fall within the claim scope.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification discusses systems where "unsolicited pushed information packets... could trigger... downloading of related information" (’395 Patent, col. 4:9-12). This language could be argued to support a construction where any server-initiated message that prompts a client-side action qualifies as "pushed," regardless of a preceding user request in the same session.
  • Evidence for a Narrower Interpretation: The plain meaning of "unsolicited" suggests the absence of a request. The patent's abstract also describes generating an "unsolicited push message at a later time to notify the user of relevant results when the user enters a geographical area" (’395 Patent, Abstract), suggesting the trigger is a geographical event, not a user's direct request.

The Term: "a first response... indicating... that there is content available"

• (from claim 1 of the ’844 Patent)
• Context and Importance: This limitation distinguishes the notification of content availability from the actual transfer of the content, which is recited as occurring only after a "second request." If the accused system's first response delivers the substantive content, this element may not be met. Practitioners may focus on this term to analyze whether the accused system's communication protocol is a single-step content delivery or the specific two-step notification-then-delivery process claimed.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The abstract of the shared specification states that in some embodiments, "the push message is used to notify the user that information is available for download" (’844 Patent, Abstract). This supports the concept of a notification that is separate from the content itself.
  • Evidence for a Narrower Interpretation: The explicit sequence in claim 1—first request, first response indicating availability, second request, coupling content—suggests a clear and deliberate separation of functions. An interpretation could require that the first response contains no substantive user-facing content, but functions purely as a notification signal to trigger the second request.

VI. Other Allegations

• Willful Infringement: The complaint does not explicitly allege willful infringement. It alleges that Defendant had knowledge of the patents-in-suit "since at least the filing of the Original Complaint in this action, or shortly thereafter" (Compl. ¶65). The Prayer for Relief requests a declaration that the case is "exceptional under 35 U.S.C. § 285" (Compl. p. 28, ¶C).

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

• A core issue will be one of definitional scope: can a server’s response to a user-initiated request in a mobile app session be construed as an "unsolicited pushed message" as required by the ’395 Patent, or is it inherently a "solicited" communication falling outside the claim?
• A key evidentiary question will be one of technical operation: does the Nordstrom App's communication protocol factually implement the distinct, multi-step sequence required by claims of the ’844 Patent, where a server first sends a message only "indicating" content availability before receiving a second, separate request to download that content?
• As all asserted patents have expired, the case is exclusively for past damages. A central challenge will be damages calculation: what is the appropriate reasonable royalty for the alleged use of this foundational location-based notification technology for the period between the app's launch (c. 2016) and the patents' expiration (2018), and how can the patented features' contribution be isolated from the myriad other features of a modern retail application?