Convergent Assets LLC v. Dicks Sporting Goods Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Convergent Assets LLC (Delaware)
  • Defendant: Dick's Sporting Goods, Inc. (Delaware)
  • Plaintiff’s Counsel: Direction IP Law
• Case Identification: 4:24-cv-00567, E.D. Tex., 06/21/2024
• Venue Allegations: Plaintiff alleges venue is proper because Defendant has regular and established places of business within the Eastern District of Texas, specifically identifying retail locations in Tyler and Longview.
• Core Dispute: Plaintiff alleges that Defendant’s website and associated marketing systems infringe a patent related to providing targeted content by analyzing user social networking activity and browsing behavior.
• Technical Context: The technology at issue addresses methods for personalized digital advertising, a commercially significant field focused on improving ad relevance by processing user data from social media and other online sources.
• Key Procedural History: The asserted patent is part of a large family of applications dating back to 2007, as indicated on its face page. The complaint does not mention any prior litigation or post-grant proceedings involving the patent.

Case Timeline

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

U.S. Patent No. 11,049,138 - "Systems and Methods for Targeted Advertising"

• Issued: June 29, 2021

The Invention Explained

• Problem Addressed: The patent addresses the problem of conventional online advertising, where advertisements selected based on simple keywords on a webpage often fail to align with a user's actual, current interests (’138 Patent, col. 1:49-52). This can result in advertisements that are duplicative of content the user is already viewing or are otherwise not engaging ('138 Patent, col. 3:23-33).
• The Patented Solution: The invention proposes a more sophisticated system that obtains "word data" from dynamic sources like social media posts and blogs ('138 Patent, col. 5:5-12). It then creates "relationship data" that links words and concepts, weighting these relationships based on factors like frequency, authority, and recency ('138 Patent, col. 8:33-61). By analyzing a target user's current browsing activity against this rich, socially-derived relationship data, the system can identify and deliver more relevant advertisements or content ('138 Patent, Abstract; Fig. 1).
• Technical Importance: This approach represents a shift from static, page-level keyword matching to a dynamic, user-centric model that leverages the "social momentum" of topics to infer user interest ('138 Patent, col. 9:1-11).

Key Claims at a Glance

• The complaint asserts independent claim 28. (Compl. ¶12)
• The essential elements of independent claim 28 are:
  • Obtaining first data indicating words in content from social networking activity, including a user post.
  • Generating second data that indicates a ranked association between words, where the ranking is based on the recency of the content, giving preference to more recent content relationships.
  • Identifying a word from a user's browse information, using the second data to find a related "second word," and then finding a content item associated with that second word.
  • Providing a portion of that content item to the user's device.
• The complaint’s prayer for relief seeks judgment on one or more claims, which implicitly reserves the right to assert other claims. (Compl. ¶VI.a)

III. The Accused Instrumentality

Product Identification

• The accused instrumentality is Defendant’s website, www.dickssportinggoods.com, and its associated data analysis and marketing systems. (Compl. ¶12)

Functionality and Market Context

• The complaint alleges that Defendant collects data from a user's social media activity, including user-generated content from platforms like Facebook, Instagram, and Twitter. (Compl. ¶12). A screenshot from Defendant's privacy policy is provided to support the allegation that it collects "user-generated content (via our Sites, Internet Marketing Channels or otherwise)." (Compl. p. 4).
• This social media data is allegedly analyzed, in part by third-party services such as newBrandAnalytics (nBA), to understand trends, customer sentiment, and relationships between words. (Compl. ¶13).
• The system also allegedly collects a user's browsing history from the accused website, including "visited webpages, products viewed, and even search terms." (Compl. ¶14).
• By combining the analysis of social media data with real-time browsing data, the accused instrumentality allegedly delivers personalized content, such as tailored product recommendations and targeted advertisements, to the user. (Compl. ¶15, 17).

IV. Analysis of Infringement Allegations

'138 Patent Infringement Allegations

Identified Points of Contention

• Scope Questions: A central question may be whether the data Defendant collects from what it calls "Internet Marketing Channels" and third-party analytics partners constitutes "social networking activity" from "a user post on a social networking site" as required by the claim. (Compl. ¶12; '138 Patent, cl. 28).
• Technical Questions: The complaint alleges that Defendant's system performs a ranking "based on a recency of the content." (Compl. ¶13). A point of contention may be whether the evidence, which includes marketing materials from partners, can demonstrate that the accused system performs the specific, comparative ranking structure recited in the claim, or merely a more generic trend or sentiment analysis where recency is one of many factors.
• Attribution Questions: The complaint heavily references third-party partners like newBrandAnalytics and SOCI. (Compl. ¶13, p. 12). This raises the question of whether Defendant performs all steps of the claimed method itself, or whether its defense might argue that the actions are divided among multiple entities, potentially complicating a finding of direct infringement.

V. Key Claim Terms for Construction

• The Term: "ranking based on a recency of the content"

  • Context and Importance: This term is critical because it defines the core technical mechanism that allegedly distinguishes the invention from prior art. The infringement case depends on proving that the accused system performs not just any ranking, but this specific type of recency-driven ranking. Practitioners may focus on this term because the complaint's support relies on generalized statements about "stronger association" rather than detailing a specific comparative ranking algorithm. (Compl. ¶13).
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The specification discusses that weightings of relationships can "dynamically change over time based on changing frequency, recency, and/or authority criteria." ('138 Patent, col. 8:61-65). This language may support a more flexible interpretation where recency is an influential factor in a weighting score.
    • Evidence for a Narrower Interpretation: Claim 28 recites a specific structure: "a first ranking of a first degree of association is greater than a second ranking of a second degree of association based on the multiple words related to the first degree of association having a more recent content relationship." ('138 Patent, cl. 28). A party could argue this requires a direct, explicit comparison of content ages, not merely incorporating recency as one of several inputs into a black-box "association" score.

• The Term: "social networking activity"

  • Context and Importance: This term defines the primary data source for the claimed method. Its construction will determine whether the broad set of data allegedly collected by Defendant—including from "Internet Marketing Channels," "user-generated content," and "social media, surveys, etc."—falls within the claim scope. (Compl. ¶12).
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The specification describes "social-network data" as including data from a wide variety of sources, such as "social networking sites, blogs, declared interest sites (for example, digg.com), news and other current event sites," as well as "web conversations, user profiles, online blogs, [and] commentary." ('138 Patent, col. 5:6-12). This could support construing the term broadly.
    • Evidence for a Narrower Interpretation: The claim language itself requires that the activity "includes a user post on a social networking site." ('138 Patent, cl. 28). A defendant could argue this anchors the definition to explicit user-authored content on traditional social media platforms and does not extend to all "user-generated content" or aggregated analytics data from unspecified "Internet Marketing Channels."

VI. Other Allegations

• Indirect Infringement: The complaint includes a count for induced infringement, alleging Defendant induces its customers to use the accused instrumentality in an infringing manner by providing "access to support for and instructions." (Compl. ¶16). It also raises the possibility of joint infringement where steps are performed by both Defendant and its customers. (Compl. ¶16).
• Willful Infringement: The complaint does not contain an explicit allegation of willful infringement. It does, however, allege that Defendant has had knowledge of the '138 Patent and the alleged infringement "At least as of the filing of this lawsuit and service of the complaint," which may form the basis for a claim of post-filing willfulness and enhanced damages. (Compl. ¶16).

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

• A core issue will be one of evidentiary proof: can the Plaintiff produce technical evidence to demonstrate that Defendant’s systems, which rely on third-party analytics tools, actually implement the specific "ranking based on a recency of the content" as recited in Claim 28, or will the evidence show only a more generic trend-analysis capability?
• The case may also turn on a question of claim construction: is the term "social networking activity," which the claim requires to include a "user post on a social networking site," broad enough to read on the diverse data sources the complaint alleges Defendant uses, including aggregated data from "Internet Marketing Channels" and analytics partners?
• Finally, a key question will be one of attribution: given the alleged roles of third-party partners like newBrandAnalytics and SOCI, can the Plaintiff establish that Defendant directs or controls the performance of every step of the claimed method, thereby overcoming a potential defense of divided infringement?