Push Data LLC v. Five Below Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Push Data LLC (Delaware)
  • Defendant: Five Below, Inc. (Pennsylvania)
  • Plaintiff’s Counsel: Shea | Beaty
• Case Identification: 4:24-cv-401, E.D. Tex., 05/08/2024
• Venue Allegations: Plaintiff alleges venue is proper because Defendant maintains multiple established places of business in the district, including specific retail locations in Plano and Wylie, Texas.
• Core Dispute: Plaintiff alleges that Defendant’s mobile application infringes three expired patents related to location-based services and push notifications for mobile devices.
• Technical Context: The technology concerns systems and methods for delivering geographically relevant information to mobile devices, a foundational concept for modern location-aware mobile applications.
• Key Procedural History: The patents-in-suit all stem from a single patent application filed in 1998 and expired in 2018. The complaint alleges infringement occurred during the pendency of the patents and seeks damages for past infringement only. The patents incorporate by reference U.S. Patent No. 6,574,239, related to maintaining virtual sessions with a remote unit.

Case Timeline

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

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

• Identification: Issued June 6, 2006 (Compl. ¶70).

The Invention Explained

• Problem Addressed: The patent’s background describes that at the time of invention, mobile users had to manually navigate applications or click icons to find location-specific information, and location determination based on cellular network data was coarse (Compl. ¶16, ¶18; ’395 Patent, col. 2:62-64). Existing systems lacked a method to automatically control a network application using locally broadcast information that was selectively filtered based on relevance (’395 Patent, col. 2:50-62).
• The Patented Solution: The invention proposes a system where a mobile unit maintains a primary network connection (e.g., cellular) and uses information from an auxiliary channel (e.g., local radio broadcast or GPS) to control the flow of data on that primary connection (’395 Patent, col. 4:25-30). A key component is a "packet filter" on the mobile device that selectively passes or rejects locally received broadcast packets based on predefined criteria, thereby allowing the device to automatically access relevant web pages or application data as it moves through different geographic areas (’395 Patent, col. 4:38-54). The overall architecture is depicted in Figure 1 of the patent (’395 Patent, Fig. 1).
• Technical Importance: The technology provided a framework for enabling mobile devices to automatically surface relevant, localized content based on a user's physical position, a concept foundational to modern location-based services (Compl. ¶14, ¶57).

Key Claims at a Glance

• The complaint asserts at least claims 4 and 22, with Claim 22 being independent (Compl. ¶84, ¶88).
• Independent Claim 22 is directed to a method comprising the essential elements of:
  • Identifying an information item that comports with a user interest indication and is associated with the user's location.
  • Causing a "communication push message" to be wirelessly transmitted to the user's mobile unit, where the message contains information about further content available for download.
  • Receiving a client-request packet from the mobile unit in response to a user selection.
  • Sending the further content to the mobile unit in response to the request.
  • The push message acting as a notification that allows the user to selectively download the content only if interested.
• The complaint reserves the right to assert additional claims (Compl. ¶86).

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

• Identification: Issued November 6, 2007 (Compl. ¶91).

The Invention Explained

• Problem Addressed: As part of the same patent family, the ’844 Patent addresses the same technical problem of enabling automatic, location-aware content delivery to mobile devices to overcome the limitations of coarse location data and manual user navigation (’844 Patent, col. 2:50-62).
• The Patented Solution: The invention describes a client-server communication method where a client can send a request, and a server can respond with a notification about the availability of new data. The client application can then send another request to pull the content, allowing the client-side app to synchronize with the server (Compl. ¶48). This functionality is described in the context of a mobile unit that can roam between different wireless networks, such as cellular and Wi-Fi, to support a push service (’844 Patent, col. 4:25-54). The architecture in Figure 1 shows a mobile unit capable of connecting to both a wide-area network and a local broadcast domain entity (’844 Patent, Fig. 1).
• Technical Importance: The technology describes a specific client-server interaction protocol for synchronizing data in response to notifications, a technique relevant to how modern mobile apps perform background refreshes and data updates (Compl. ¶41, ¶48).

Key Claims at a Glance

• The complaint asserts at least independent claims 1, 25, 32, 37, and 46 (Compl. ¶105, ¶109).
• Independent Claim 1 is directed to a method for use in a wireless handheld device, comprising the essential elements of:
  • Receiving a first request from the handheld device via a first wireless packet network access station.
  • Transmitting a server response to the device, indicating the availability of content.
  • Receiving a second request from the device, which is automatically generated by the device in response to the server response and without requiring user action, and is coupled via a second wireless packet network access station.
  • Coupling the available content to the device via the second wireless packet access station.
• The complaint reserves the right to assert additional claims (Compl. ¶107).

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

• Identification: Issued May 1, 2007 (Compl. ¶112).

Technology Synopsis

• As a member of the same patent family, the ’811 Patent discloses systems for providing geographically relevant information to mobile devices. The technology enables a mobile unit to receive unsolicited push messages based on its location and user preferences, which can notify the user of available content for download or provide the content directly (Compl. ¶17, ¶45; ’811 Patent, Abstract).

Asserted Claims

• At least independent claim 5 (Compl. ¶126, ¶130).

Accused Features

• The complaint accuses the Five Below app of infringement based on a method where its servers receive requests from a mobile device, respond with content availability, and then couple the content to the device in an environment with at least two distinct wireless networks, such as cellular and Wi-Fi (Compl. ¶124, ¶125).

III. The Accused Instrumentality

Product Identification

• The "Accused Instrumentalities" are identified as at least the Five Below mobile application available on the Google Play and Apple App stores (Compl. ¶68).

Functionality and Market Context

• The complaint alleges the Five Below app operates within a client-server system where the app on a mobile device communicates with Defendant's servers (Compl. ¶68). The alleged infringing functionality involves a multi-step communication method: a remote server receives a first request from a device, the server responds that content is available, the server receives a second, automatically generated request from the device, and the server then provides the content to the device (Compl. ¶82, ¶103, ¶124). This process is alleged to occur in an environment where the device has access to at least two wireless packet networks, such as a cellular and a Wi-Fi network (Compl. ¶83, ¶104, ¶125). No probative visual evidence provided in complaint.

IV. Analysis of Infringement Allegations

The complaint references claim chart exhibits that are not included in the provided filing (Compl. ¶84, ¶105, ¶126). The infringement theories are therefore summarized in prose based on the narrative allegations in the complaint.

'395 Patent Infringement Allegations

• The complaint's narrative suggests infringement of claim 22 by alleging the Accused Instrumentalities perform a method of location-based push notifications. This theory posits that the Five Below system identifies information relevant to a user, sends a push message to the user's device that functions as a notification of this available content, and then, after the user interacts with the notification, the device sends a request to the server, which in turn delivers the full content (Compl. ¶17, ¶21, ¶45, ¶82). This sequence—notification followed by a user-initiated request and content delivery—is alleged to map to the elements of claim 22.

'844 Patent Infringement Allegations

• The infringement theory for claim 1 of the ’844 Patent centers on a specific client-server communication sequence. The complaint alleges that the Five Below app sends a first request to a server, which responds by indicating that related content is available. In direct response to this server message, the app is alleged to "automatically" generate a second request to retrieve the content, "without requiring user action" (Compl. ¶103). The server then couples the content to the app, enabling synchronization. This specific sequence of request-response-automatic request-content delivery, allegedly performed in a hybrid cellular/Wi-Fi network environment, is asserted to meet the limitations of claim 1 (Compl. ¶48, ¶103, ¶104).

V. Key Claim Terms for Construction

The Term: "communication push message" (from ’395 Patent, claim 22)

• Context and Importance: The claim requires this "push message" to act as a "notification." The construction of this term will be critical to determining whether modern, operating-system-level notifications (e.g., from Apple Push Notification Service or Firebase Cloud Messaging) fall within the scope of the message type contemplated by the 1998-priority-date patent. Practitioners may focus on whether the term is limited to messages within a proprietary "virtual session" described in the specification or is broad enough to cover any server-initiated alert.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification describes using "unsolicited pushed information packets" to trigger the downloading of information, which may support an interpretation covering any server-initiated message designed to prompt a client-side action (’395 Patent, col. 3:48-51).
  • Evidence for a Narrower Interpretation: The specification's disclosure of "virtual sessions" and specific data structures for communication between the mobile unit and server may support an argument that the claimed "push message" is not a generic alert but one that is integrated with the patent's specific session-management architecture (’395 Patent, col. 6:29-35).

The Term: "second request... is automatically generated by the handheld device in response to the server response, without requiring user action" (from ’844 Patent, claim 1)

• Context and Importance: This term recites a specific, conditional, and automated function. The infringement analysis may turn on whether the accused app performs this precise two-step data pull. Practitioners may focus on the required causal link—the second request must be "in response to" the server's message—as distinguished from a routine, time-based background sync that may coincidentally follow a server communication.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification discusses "automated processing such as background application refresh operations" that can be performed in response to a push message, which could support a broader view of what constitutes an "automatic" request (’844 Patent, col. 8:36-39).
  • Evidence for a Narrower Interpretation: The plain language "in response to the server response" suggests a direct and immediate reaction. An interpretation may be advanced that this requires a specific, event-driven function where the server's "content available" message is the direct trigger for the client's "send content" request, rather than a pre-scheduled background task.

VI. Other Allegations

Willful Infringement

• The complaint does not contain an explicit count for willful infringement or allege pre-suit knowledge of the patents. It alleges Defendant had knowledge of the patents "since at least the filing of the Original Complaint in this action" (Compl. ¶67). The prayer for relief requests a declaration that the case is "exceptional under 35 U.S.C. § 285," but does not plead facts to support pre-suit willfulness (Compl. p. 25, ¶C).

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

• A core issue will be one of technological scope: Can the patent claims, which originate from a 1998 application describing a "geographical web browser" and "virtual sessions," be construed to cover the functionality of modern mobile apps that rely on operating-system-integrated push notification platforms and standardized background data synchronization protocols?
• A key evidentiary question will be one of functional proof: What evidence will establish that the accused app performs the specific, multi-step communication sequence required by claims like Claim 1 of the ’844 patent—particularly the "automatic" generation of a second data request that is directly "in response to" a server availability message, as distinct from a general background refresh or a single client-initiated data pull?