Bandspeed LLC v. Mpow Technology Co Ltd

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Bandspeed, LLC (Texas)
  • Defendant: MPOW Technology Co., Ltd. (Hong Kong SAR, China)
  • Plaintiff’s Counsel: DINOVO PRICE LLP
• Case Identification: 1:23-cv-00558, W.D. Tex., 07/21/2023
• Venue Allegations: The complaint alleges that venue is proper and that Defendant has sold the accused products to customers in the United States, including customers in the State of Texas and within the Western District of Texas.
• Core Dispute: Plaintiff alleges that Defendant’s Bluetooth-enabled wireless earbuds infringe eight patents related to adaptive frequency hopping technology for wireless communications.
• Technical Context: The patents concern methods for dynamically selecting and avoiding wireless communication channels to mitigate interference, a technology central to the operation of protocols like Bluetooth in the crowded 2.4 GHz spectrum.
• Key Procedural History: The complaint alleges Defendant had pre-suit knowledge of the patents-in-suit via a notice letter sent on May 12, 2020. Several of the asserted patents have undergone post-grant proceedings. Notably, U.S. Patent Nos. 7,027,418 and 7,903,608 underwent reexamination where the specific independent claims asserted in this complaint were canceled. Other asserted patents survived inter partes review proceedings, in some cases with amended claims. This history may significantly impact the viability and scope of the infringement claims for several of the asserted patents.

Case Timeline

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

U.S. Patent No. 7,027,418 - "Approach For Selecting Communications Channels Based On Performance"

• Patent Identification: U.S. Patent No. 7,027,418, "Approach For Selecting Communications Channels Based On Performance," issued April 11, 2006 (the "’418 Patent").

The Invention Explained

• Problem Addressed: The patent describes the "coexistence problem" that arises when frequency-hopping (FH) communication systems, like Bluetooth, and non-frequency-hopping (NFH) systems, like Wi-Fi, operate in the same crowded frequency band, leading to interference, data errors, and reduced performance (ʼ418 Patent, col. 3:11-23).
• The Patented Solution: The invention is a method for adaptively managing channel selection in an FH system. It involves determining the performance of available communication channels, selecting a first set of "good" channels based on that performance, and then later re-determining performance to select a new set of channels, thereby dynamically avoiding interference (ʼ418 Patent, Abstract; Fig. 1A). This allows the system to avoid "bad" channels corrupted by interference rather than blindly hopping across the entire frequency band (ʼ418 Patent, col. 4:29-34).
• Technical Importance: This adaptive approach was designed to improve the reliability and robustness of short-range wireless technologies by allowing them to coexist more effectively with other signals in unlicensed radio spectrums (ʼ418 Patent, col. 4:29-47).

Key Claims at a Glance

• The complaint asserts independent claim 5 (Compl. ¶62). An inter partes reexamination certificate issued for the '418 Patent on October 31, 2018, canceled claims 1-4, 6-17, and 5, among others.
• The essential elements of original claim 5 (which depends on canceled claim 1) are:
  • A method for selecting channels comprising selecting a first set of channels based on performance at a first time, and selecting a second set of channels based on performance at a later second time in a frequency hopping system.
  • Generating first channel identification data that identifies the first set of channels.
  • Transmitting this identification data to other participants in the system.

U.S. Patent No. 7,477,624 - "Approach For Managing The Use Of Communications Channels Based On Performance"

• Patent Identification: U.S. Patent No. 7,477,624, "Approach For Managing The Use Of Communications Channels Based On Performance," issued January 13, 2009 (the "’624 Patent").

The Invention Explained

• Problem Addressed: The patent addresses the same coexistence problem as its parent '418 Patent: interference between wireless systems operating in the same frequency band, which degrades performance and requires data to be retransmitted (ʼ624 Patent, col. 3:11-24).
• The Patented Solution: The invention describes a communications device (an apparatus) that implements an adaptive frequency hopping scheme. The device selects an initial set of channels based on performance, communicates over them, and later selects a second, different set of channels based on subsequent performance analysis, thereby adapting to changing interference conditions (ʼ624 Patent, Abstract; Fig. 1A). The claims are directed to a device with a processor and memory configured to perform these steps.
• Technical Importance: This technology provides a device-level framework for implementing adaptive frequency hopping, enabling the creation of more reliable wireless products, such as Bluetooth devices, that can function in spectrally crowded environments (ʼ624 Patent, col. 4:40-52).

Key Claims at a Glance

• The complaint asserts independent claim 15 (Compl. ¶78). Claim 15 survived an inter partes review proceeding.
• The essential elements of claim 15 (which depends on claim 13) are:
  • A communications device with a memory, processor, and transceiver.
  • The device is configured to select a first set of channels at a first time and a second set of channels at a later time, where the number of channels in each set can vary.
  • The selection is based on channel performance criteria.
  • The channel selection criteria specifies that a channel is selected based on receiving a "specified number of votes" from a "plurality of votes."

U.S. Patent No. 7,570,614 - "Approach For Managing The Use Of Communications Channels Based On Performance"

• Technology Synopsis: This patent is in the same family and addresses the same adaptive frequency hopping technology. It focuses on a method where a participant (e.g., a master device) determines channel performance, selects a channel for another participant (a slave) to use for a reply, and communicates that selection to the slave.
• Asserted Claims: Claim 100 is asserted (Compl. ¶94). The patent underwent inter partes reexamination, which confirmed the patentability of claims 29 and 81 as amended but did not address other claims.
• Accused Features: The accused products are alleged to infringe by implementing adaptive frequency hopping functionality compliant with Bluetooth Classic specifications (Compl. ¶93-¶94).

U.S. Patent No. 7,903,608 - "Approach For Managing The Use Of Communications Channels Based On Performance"

• Technology Synopsis: This patent continues the same technology theme of adaptively selecting communication channels based on performance to avoid interference in frequency hopping systems.
• Asserted Claims: Claim 1 is asserted (Compl. ¶110). An ex parte reexamination certificate issued for the '608 Patent which canceled claims 1-5.
• Accused Features: The accused products are alleged to infringe by implementing functionality compliant with Bluetooth Classic and Bluetooth Low Energy (LE) specifications (Compl. ¶109-¶110).

U.S. Patent No. 8,542,643 - "Approach For Managing The Use Of Communications Channels Based On Performance"

• Technology Synopsis: This patent describes a method for replacing "bad" channels in a default channel register with "good" channels from a separate list, based on performance monitoring, to create an adaptive frequency hopping sequence.
• Asserted Claims: Claim 5 is asserted (Compl. ¶128). Claim 5 survived an inter partes review proceeding.
• Accused Features: The accused products are alleged to infringe by implementing functionality compliant with Bluetooth Classic and LE specifications (Compl. ¶127-¶128).

U.S. Patent No. 8,873,500 - "Approach For Managing The Use Of Communications Channels Based On Performance"

• Technology Synopsis: This patent continues the family's focus on adaptive frequency hopping, with claims directed to a device that performs channel selection and communicates over the selected channels for different periods of time.
• Asserted Claims: Claim 28 is asserted (Compl. ¶146). Claim 28 survived an inter partes review proceeding.
• Accused Features: The accused products are alleged to infringe by implementing functionality compliant with Bluetooth Classic and LE specifications (Compl. ¶145-¶146).

U.S. Patent No. 9,379,769 - "Approach For Managing The Use Of Communications Channels Based On Performance"

• Technology Synopsis: This patent continues the family's focus on adaptive frequency hopping methods and devices.
• Asserted Claims: Claim 1 is asserted (Compl. ¶164).
• Accused Features: The accused products are alleged to infringe by implementing functionality compliant with Bluetooth Classic and LE specifications (Compl. ¶163-¶164).

U.S. Patent No. 9,883,520 - "Approach For Managing The Use Of Communications Channels Based On Performance"

• Technology Synopsis: This patent continues the family's focus on adaptive frequency hopping methods and devices.
• Asserted Claims: Claim 1 is asserted (Compl. ¶182).
• Accused Features: The accused products are alleged to infringe by implementing functionality compliant with Bluetooth Classic and LE specifications (Compl. ¶181-¶182).

III. The Accused Instrumentality

Product Identification

The complaint broadly accuses "Infringing Bluetooth Classic Products" and "Infringing Bluetooth LE Products" (Compl. ¶14, ¶31). It identifies the MPOW MX3 True Wireless Earbuds as an exemplary accused product (Compl. ¶21).

Functionality and Market Context

The accused products are wireless earbuds that utilize Bluetooth technology for audio transmission (Compl. ¶35). The complaint alleges these products contain a Bluetooth System on a Chip, specifically identifying an ATS3015 chipset in the exemplary product (Compl. ¶22-¶23). A photograph of this chipset is included in the complaint (Compl. at 4). The infringement allegations are premised on the products' implementation of "adaptive frequency hopping" in compliance with Bluetooth Core Specification versions 2.0 or later (Compl. ¶19, ¶28). The products are marketed and sold in the United States through websites including Walmart.com and Defendant's own site, xmpow.com (Compl. ¶49, ¶50). A screenshot from Walmart.com shows the product available for sale (Compl. at 9).

IV. Analysis of Infringement Allegations

The complaint does not provide element-by-element infringement allegations sufficient to construct a claim chart. Instead, it alleges that the Accused Products infringe by virtue of their compliance with Bluetooth standards that implement adaptive frequency hopping (Compl. ¶19, ¶28, ¶70). The narrative theory of infringement is that the normal, intended operation of products compliant with these standards necessarily practices the methods and embodies the systems claimed in the patents-in-suit.

Identified Points of Contention

• Procedural Viability: A threshold issue for the '418 and '608 Patents is whether the complaint states a viable claim for relief, given that the specific independent claims asserted against these patents (Claim 5 of the '418 Patent and Claim 1 of the '608 Patent) were canceled during post-grant proceedings (Compl. ¶62, ¶110).
• Evidentiary Questions: For all patents, a central question will be what evidence demonstrates that the accused products' operation meets each limitation of the asserted claims. The complaint's reliance on standard-compliance raises the question of whether the Bluetooth standard requires an infringing implementation, or whether it merely describes a system capable of being operated in an infringing manner. For example, for the '624 Patent, it is an open question what evidence shows that the accused product performs the specific "voting" function required by Claim 15. The complaint provides a user manual diagram illustrating the Bluetooth pairing process, which may be used to argue that users are instructed to engage the allegedly infringing functionality (Compl. at 7).

V. Key Claim Terms for Construction

The Term

"receives a specified number of votes to use the particular communications channel from among a plurality of votes" ('624 Patent, Claim 15).

Context and Importance

This term is critical to the infringement analysis for the '624 Patent, as it recites a specific mechanism for channel selection. The viability of the infringement claim will depend on whether the channel quality feedback and selection mechanisms in the Bluetooth protocol as implemented by the accused products can be construed as a "voting" process. Practitioners may focus on this term because it appears to require a collaborative decision-making process that may or may not be present in the accused standard.

Intrinsic Evidence for Interpretation

• Evidence for a Broader Interpretation: The specification of the parent '418 Patent describes a "referendum" approach where different participants (e.g., a master and slaves) each assess channel quality and a channel is selected if it meets a "passing mark" based on the aggregation of these assessments. Plaintiff may argue that any system using aggregated channel quality data from multiple devices constitutes "voting" ('418 Patent, col. 16:42-54, Table 2).
• Evidence for a Narrower Interpretation: The same section of the specification describes the votes with specific binary values ('0' for "bad" and '1' for "good"). A defendant may argue that the term requires an explicit, discrete voting protocol where formal votes are cast and tallied, and that a more generalized or master-driven channel assessment scheme does not satisfy this limitation ('418 Patent, col. 17:1-4).

VI. Other Allegations

Indirect Infringement

The complaint alleges inducement by asserting that Defendant provides user manuals, SDKs, and driver software that instruct customers on how to activate and use the infringing Bluetooth functionality (Compl. ¶24, ¶25, ¶64). It alleges contributory infringement on the basis that the accused Bluetooth components are especially made to infringe, constitute a material part of the invention, and have no substantial non-infringing uses (Compl. ¶28, ¶74).

Willful Infringement

Willfulness is alleged based on Defendant's alleged pre-suit knowledge of the patents. The complaint cites a notice letter sent on May 12, 2020, and a response from Defendant's counsel, followed by Defendant's continued sale of the accused products (Compl. ¶199-201).

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

• A primary issue will be one of procedural viability: can the infringement counts on the '418 and '608 Patents survive a motion to dismiss, given that the complaint asserts specific claims that public records indicate were previously canceled during reexamination?
• A key evidentiary question will be one of infringement by standard: does mere compliance with the Bluetooth standard for adaptive frequency hopping constitute infringement of the specific claim limitations, such as the "voting" mechanism of '624 Patent Claim 15, or will Plaintiff be required to produce source code or other direct evidence of the accused products' specific implementation?
• The case will also likely turn on a question of claim scope: can claim terms rooted in collaborative decision-making, such as "votes," be construed to cover the automated channel quality assessment and mapping protocols used in the accused Bluetooth-enabled products, or is there a fundamental mismatch in the described technical operations?