DCT

6:20-cv-01170

WSOU Investments LLC v. Salesforcecom Inc

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I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: 6:20-cv-01170, W.D. Tex., 12/18/2020
  • Venue Allegations: Plaintiff alleges venue is proper in the Western District of Texas because Defendant has committed acts of infringement in the district and maintains regular and established places of business there, including an office in Austin and over 300 employees working within the district.
  • Core Dispute: Plaintiff alleges that Defendant’s Salesforce Marketing Cloud – Journey Builder platform infringes a patent related to analyzing user behavior to determine optimal times for sending electronic messages.
  • Technical Context: The technology concerns adaptive digital communication, where user online activity patterns are analyzed to personalize the timing of marketing or service messages, a key function in modern customer relationship management (CRM) and automated marketing systems.
  • Key Procedural History: The patent-in-suit, U.S. Patent No. 9,088,493, is a continuation of an earlier application that issued as U.S. Patent No. 8,706,821. The '493 patent is also subject to a terminal disclaimer, which may limit its enforceable term to that of the parent patent.

Case Timeline

Date Event
2009-09-16 Earliest Priority Date ('493 Patent)
2015-07-21 Issue Date, U.S. Patent No. 9,088,493
2020-12-18 Complaint Filed

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

U.S. Patent No. 9,088,493 - "Method and apparatus for time adaptation of online services to user behavior," issued July 21, 2015

The Invention Explained

  • Problem Addressed: The patent addresses the problem of ineffective digital messaging from online service providers, noting that as services have become more sophisticated, the integration with messaging has remained "superficial" (’493 Patent, col. 1:25-27). Sending messages at inopportune times, such as when a user is asleep, can be ineffective and create a negative user impression of the service (’493 Patent, col. 3:6-14).
  • The Patented Solution: The invention describes a method and system for personalizing message delivery times by analyzing a user's historical interaction with online services. The system retrieves "timing information" (e.g., login times, session durations), determines a "pattern of consistent usage" from this data, and then generates "scheduling information" to transmit a message at a time the user is likely to be receptive (’493 Patent, Abstract; col. 1:30-36). The system architecture, depicted in Figure 1, includes an "online service tracking platform" that collects and analyzes this user data from various online services (’493 Patent, Fig. 1).
  • Technical Importance: The described technology aims to improve the effectiveness of digital communications by making them adaptive to individual user lifestyles and time zones, thereby increasing the likelihood of user engagement with the message (’493 Patent, col. 12:28-34).

Key Claims at a Glance

  • The complaint asserts infringement of at least independent claim 1 (Compl. ¶15).
  • The essential elements of independent claim 1 are:
    • Receiving a request from an online service to transmit a message to a user.
    • Collecting timing information related to the user's usage, specifically information associated with a user's login to the online service.
    • Using a processor to determine a "pattern of consistent usage" from that timing information, where the pattern reflects both user usage and "transmission availability of a message."
    • Generating scheduling information for sending the message based on the determined pattern and its consistency.
  • The complaint alleges infringement of "one or more claims" of the patent, reserving the right to assert other claims (Compl. ¶16).

III. The Accused Instrumentality

Product Identification

  • The complaint identifies "Salesforce Marketing Cloud – Journey Builder" as the accused product, with a specific focus on the "Einstein Send Time Optimization" (STO) feature (Compl. ¶¶4, 7).

Functionality and Market Context

  • The Salesforce Marketing Cloud is described as a "unified marketing platform" that allows marketers to design and automate customer communication campaigns (Compl. ¶5). The accused STO feature allegedly "uses machine learning to determine the best time to send a message so that the message is likely to be opened" (Compl. ¶7). It is alleged to do this by analyzing "90 days' worth of email engagement data to detect the pattern of each subscriber" and then predict an optimal send time for individuals (Compl. ¶11). A screenshot from a Salesforce video in the complaint describes this process as analyzing engagement data to "detect patterns." (Compl. p. 10). The platform is a central component of Salesforce's broader CRM and customer engagement offerings (Compl. p. 3).

IV. Analysis of Infringement Allegations

'493 Patent Infringement Allegations

Claim Element (from Independent Claim 1) Alleged Infringing Functionality Complaint Citation Patent Citation
receiving a request from at least one of one or more online services to transmit a message to a user of the one or more online services; Marketers use Journey Builder to design and automate campaigns, which constitutes a request to send messages to users. A screenshot shows a user creating a journey to send messages. (Compl. p. 6). ¶¶6-7 col. 7:52-56
collecting timing information relating to usage by the user from a platform..., wherein the timing information is associated with a login of the user with one of the one or more online services; The accused system uses "Collect Tracking Codes" to capture user data such as session time and length. Einstein STO analyzes "90 days' worth of email engagement data" to understand user behavior. (Compl. p. 7). ¶¶8-9, 11 col. 6:40-59
determining, by a processor, a pattern of consistent usage from the timing information, wherein the pattern reflects usage of at least one of the one or more online services and transmission availability of a message; and Einstein STO "analyzes the 90 days' worth of email engagement data to detect the pattern of each subscriber" and "predicts and displays the optimal send time." A screenshot of a dashboard shows optimal send times visualized for different days and hours. (Compl. p. 11). ¶¶10-11 col. 8:57-67
generating scheduling information for transmission of the message to the user, based on the determined pattern of consistent usage and a consistency of the determined pattern of consistent usage... Einstein STO "generates the scheduling information to deliver the messages at the optimal time" and predicts the "best hour window" for each contact. For example, it might predict 8:00 AM for a user on a Monday but 11:00 AM on a Saturday. A visual from a product demo illustrates this predictive scheduling. (Compl. p. 13). ¶¶12-14 col. 9:8-24
  • Identified Points of Contention:
    • Scope Questions: A primary question may be whether the "email engagement data" (Compl. ¶11) allegedly used by Salesforce qualifies as "timing information...associated with a login of the user" under the patent's claims. The defense could argue that opening an email is distinct from the explicit "login" events described in the patent's specification (’493 Patent, col. 4:5-9).
    • Technical Questions: The complaint states STO uses "machine learning" (Compl. ¶7). This raises the question of whether a probabilistic, AI-driven prediction model performs the claimed step of determining a "pattern of consistent usage," a phrase that, in the context of the patent's examples, suggests a more deterministic, rule-based analysis (’493 Patent, col. 4:29-32).
    • Evidentiary Questions: Claim 1 requires the determined pattern to reflect both "usage" and "transmission availability of a message." The complaint's allegations focus extensively on user engagement patterns ("usage"), but it is less clear what evidence is offered to show the accused system also determines "transmission availability" as a separate condition for generating the schedule.

V. Key Claim Terms for Construction

  • The Term: "timing information...associated with a login of the user"

    • Context and Importance: The construction of this term is central, as it defines the type of data the patented method must collect. The infringement case hinges on whether the "email engagement data" (Compl. ¶11) collected by the accused product falls within this definition. Practitioners may focus on this term because it represents a potential mismatch between the patent's explicit examples and the accused product's alleged operation.
    • Intrinsic Evidence for a Broader Interpretation: The specification defines "timing information" broadly as "any information associated with user usage of an online service ... that is indicative of some tendency of the user" (’493 Patent, col. 6:42-45), which could support an argument that any user interaction data, including email opens, is covered.
    • Intrinsic Evidence for a Narrower Interpretation: The patent repeatedly provides specific examples of timing information, such as "login and logout time of the user's access, a login time and a duration of the user's access, a login time, a date of the user login," which all relate to an explicit session initiation (’493 Patent, col. 4:5-9). This could support a narrower construction limited to formal login events.

  • The Term: "pattern of consistent usage"

    • Context and Importance: This term describes the output of the system's analysis and is the basis for scheduling. Its definition will be critical to determining whether Salesforce's alleged use of machine learning infringes. A key dispute may arise over whether a dynamic, probabilistic prediction constitutes a "pattern of consistent usage."
    • Intrinsic Evidence for a Broader Interpretation: The patent states that a pattern can be determined based on "a set of pattern rules" (’493 Patent, col. 4:26-29), which could be argued to encompass the complex, learned rules within a machine learning algorithm.
    • Intrinsic Evidence for a Narrower Interpretation: The specification's examples of pattern rules are highly deterministic, for instance, "a pattern is created if on two consecutive days, the user uses the online service 103 within a three hour time window" (’493 Patent, col. 4:29-32). This could support a narrower construction requiring a fixed, repeatable pattern rather than a probabilistic score.

VI. Other Allegations

  • Indirect Infringement: The complaint alleges induced infringement, asserting that Salesforce encourages its customers to infringe by providing product descriptions, operating manuals, and other instructional materials on its websites that detail how to use the accused STO functionality (Compl. ¶18). The complaint also pleads contributory infringement, alleging the accused functionality is especially made for infringement and lacks substantial non-infringing uses (Compl. ¶19).
  • Willful Infringement: The complaint alleges willful infringement based on Defendant’s knowledge of the '493 patent obtained "since at least the date of service of this Complaint" (Compl. ¶17). This is an allegation of post-suit willfulness.

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

  • A core issue will be one of definitional scope: can the claim term "timing information...associated with a login," which the patent illustrates with examples of formal session initiations, be construed to cover the "email engagement data" that the accused marketing platform allegedly analyzes?
  • A key question will be one of technical equivalence: does the accused product's use of predictive "machine learning" to identify an optimal send time for a message meet the claim requirement of determining a "pattern of consistent usage," a concept the patent exemplifies with more deterministic, rule-based logic?
  • An evidentiary question will be one of proof of function: can the plaintiff demonstrate that the accused system separately determines "transmission availability of a message" in addition to user "usage" patterns, as the conjunctive language of claim 1 appears to require?