DCT
3:22-cv-00291
Cellco Partnership Inc v
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Cellco Partnership d/b/a Verizon Wireless (Delaware)
- Defendant: Telecom Network Solutions, LLC (Texas)
- Plaintiff’s Counsel: Duane Morris LLP; The Dacus Firm, PC
- Case Identification: 3:22-cv-00291, N.D. Tex., 02/07/2022
- Venue Allegations: Plaintiff Verizon alleges venue is proper in the Northern District of Texas because a substantial part of the events and allegations occurred in the district, the accused instrumentality (the Verizon Network) is available there, and Defendant's principal place of business is in Texas.
- Core Dispute: Plaintiff Verizon seeks a declaratory judgment that it does not infringe Defendant TNS's patent related to dynamic allocation of network resources.
- Technical Context: The technology concerns methods for managing traffic in telecommunications networks by dynamically adjusting user service levels to handle congestion and optimize resource use.
- Key Procedural History: This declaratory judgment action was filed in response to a prior infringement lawsuit brought by TNS against Verizon in the Eastern District of Texas (E.D. Tex.) on November 9, 2021. Verizon alleges that TNS did not own the asserted patent when it filed the E.D. Tex. action, and thus lacked legal standing to sue. Verizon argues this alleged jurisdictional defect makes its N.D. Tex. action the proper "first-filed" case to resolve the dispute.
Case Timeline
| Date | Event |
|---|---|
| 2009-12-10 | '813 Patent Priority Date |
| 2020-01-14 | U.S. Reissue Patent No. RE47,813 Issued |
| 2021-11-09 | TNS files infringement lawsuit against Verizon in E.D. Tex. |
| 2021-12-24 | '813 Patent assignment to TNS executed |
| 2022-01-03 | '813 Patent assignment to TNS recorded with USPTO |
| 2022-02-07 | Verizon files this Declaratory Judgment Complaint |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Reissue Patent No. RE47,813 - "Feedback Loop for Dynamic Network Resource Allocation"
- Patent Identification: U.S. Reissue Patent No. RE47,813, "Feedback Loop for Dynamic Network Resource Allocation," issued January 14, 2020.
The Invention Explained
- Problem Addressed: In mobile computing networks, unpredictable network congestion can compromise the allocated service levels for different users, degrading performance (RE47,813 Patent, col. 1:26-31).
- The Patented Solution: The invention provides a method and system for dynamically managing shared network resources. It involves creating a "prioritization list" of devices based on their billing profiles and history, monitoring real-time network traffic, and then "dynamically modifying" the service or billing profiles of selected devices to either alleviate congestion (e.g., by reducing a guaranteed bit rate) or utilize spare capacity (RE47,813 Patent, col. 2:24-39, col. 2:63-68). This creates a feedback loop where service levels are adjusted in response to actual network conditions (RE47,813 Patent, Fig. 4).
- Technical Importance: The technology provides a framework for network operators to implement sophisticated Quality of Service (QoS) management, balancing network efficiency with user-specific service agreements (RE47,813 Patent, col. 1:22-31).
Key Claims at a Glance
- The complaint seeks a declaration of non-infringement of any valid claim of the '813 Patent, with independent claim 1 being representative of the asserted method (Compl. ¶ 30; Prayer for Relief ¶A).
- Independent Claim 1 requires:
- Receiving a service profile and a billing profile for multiple devices sharing a network resource.
- Generating a "prioritization list" of the devices based on their billing profiles and billing history.
- Repeating a loop that involves:
- Receiving traffic profiles.
- Managing the network according to the existing profiles if resources are fully utilized.
- Selecting a device from the prioritization list and "dynamically modifying" its service and/or billing profile if the network is under- or over-utilized.
- Clearing the prioritization list when the devices no longer share the resource.
III. The Accused Instrumentality
Product Identification
- The accused instrumentality is the "Verizon Network," specifically its "network management functionality" used to provide wireless services in the United States (Compl. ¶¶ 5, 27).
Functionality and Market Context
- The complaint describes the accused instrumentality as Verizon's wireless communications network, which is alleged by TNS (in the prior E.D. Tex. action) to "prioritize data transfer rates with respect to one or more users (or devices)" (Compl. ¶ 5). Verizon provides these services to consumers throughout the United States, including within the judicial district (Compl. ¶¶ 17, 20). No probative visual evidence provided in complaint.
IV. Analysis of Infringement Allegations
The complaint is for declaratory judgment of non-infringement. The following table summarizes Verizon's explicit denials of performing the claimed steps.
| Claim Element (from Independent Claim 1) | Alleged Non-Infringing Functionality (Verizon's Assertions) | Complaint Citation | Patent Citation |
|---|---|---|---|
| generating a prioritization list defining an order of said plurality of devices, based on said billing profiles and on a billing history for each of said plurality of devices; | Verizon's wireless communications network does not dynamically allocate network resources based on a prioritization list... | ¶27 | col. 16:11-14 |
| selecting at least one of said devices based on said prioritization list and dynamically modifying at least one of said service profile and said billing profile for said selected devices, if said network resource is... over-utilized by said traffic profiles; | ...and does not select and dynamically modify a user's service profile or billing profile, based on said prioritization list to alleviate congestion at a network resource. | ¶27 | col. 16:35-43 |
Identified Points of Contention
- Factual Question: The central dispute appears to be factual: does the operational reality of the Verizon Network's traffic management system involve the creation of a "prioritization list" and the subsequent "dynamic modification" of user profiles as claimed? Verizon's complaint frames this as a clear "no" (Compl. ¶ 27).
- Scope Question: A key question for the court will be how to construe the terms "prioritization list" and "dynamically modifying a... service profile". The infringement analysis will depend on whether Verizon's actual network management techniques, whatever they may be, fall within the scope of these claim terms.
V. Key Claim Terms for Construction
The Term: "prioritization list"
- Context and Importance: This term is critical because Verizon's primary non-infringement argument is that its network "does not dynamically allocate network resources based on a prioritization list" (Compl. ¶ 27). The outcome of the case may depend on whether any method of ordering or prioritizing traffic in Verizon's network is found to be equivalent to the claimed "prioritization list".
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification suggests the list is based on a "metric" which can be generated from a wide variety of inputs, including "promotional rewards or airtime minutes," "historical access of content that generates advertising," or usage of "financial transactions which have service charges," suggesting the concept is flexible (RE47,813 Patent, col. 11:44-61).
- Evidence for a Narrower Interpretation: Claim 1 itself constrains the list to be generated "based on said billing profiles and on a billing history" ('813 Patent, col. 16:11-14). Furthermore, the patent describes a specific embodiment where devices are inserted into the list based on a calculated numerical metric, which could be argued to limit the term to such a formal, generated list ('813 Patent, Fig. 6; col. 11:21-34).
The Term: "dynamically modifying... a service profile"
- Context and Importance: This is the core action of the claimed invention's feedback loop. Verizon denies performing this step to alleviate congestion (Compl. ¶ 27). Practitioners may focus on whether Verizon's network throttling or traffic shaping methods, if any, constitute a "modification" of a "service profile."
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The summary describes the modification in general terms as "increasing or reducing an overall bit-rate cap or data volume cap" ('813 Patent, col. 2:55-58). This could be argued to cover any real-time adjustment of a user's data speed.
- Evidence for a Narrower Interpretation: The patent provides a specific example of the modification as "automatically reducing the maximum guaranteed bit rate... such that the contention is resolved" ('813 Patent, col. 9:5-9). An opponent could argue this limits the term to changes in a formally defined, "guaranteed" service tier within a user's contractual "profile," rather than general network-level throttling.
VI. Other Allegations
Indirect Infringement
- Verizon makes a conclusory denial of indirect infringement, stating it "does not induce any third party to perform all of the required steps of any asserted method claims" (Compl. ¶ 28). The complaint provides no further factual detail on this point.
Willful Infringement
- The complaint does not provide sufficient detail for analysis of willfulness, as it is a declaratory judgment action filed by the accused infringer and does not address TNS's allegations from the prior E.D. Tex. case.
VII. Analyst’s Conclusion: Key Questions for the Case
A threshold issue will be jurisdictional and procedural: will the court agree with Verizon that TNS's lack of patent ownership at the time of filing the initial E.D. Tex. case was a fatal standing defect? The answer will determine whether this N.D. Tex. declaratory judgment action is the proper "first-filed" case and can proceed.
Assuming the case proceeds on the merits, a central question will be one of operational fact and claim scope: does the Verizon Network's traffic management system, in practice, create a "prioritization list" based on billing data and "dynamically modify" user "service profiles" to manage congestion, as those terms are defined by the '813 Patent? Or does it employ a different technical method that falls outside the boundaries of the claims?