MOV ology LLC v. Formisimo Ltd

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: MOV-ology LLC (Delaware)
  • Defendant: Formisimo Ltd. (England)
  • Plaintiff’s Counsel: Sorey & Hoover LLP; Prince Lobel Tye LLP
• Case Identification: 6:24-cv-00250, W.D. Tex., 05/10/2024
• Venue Allegations: Venue is alleged to be proper because the Defendant is a foreign company, which may be sued in any judicial district under 28 U.S.C. § 1391(c)(3).
• Core Dispute: Plaintiff alleges that Defendant’s form analytics software infringes a patent related to methods for capturing and using data from abandoned online forms.
• Technical Context: The technology addresses the commercial problem of prospective customers abandoning online forms, enabling businesses to recover potentially lost leads and marketing data.
• Key Procedural History: The complaint alleges that Plaintiff has provided constructive notice to the public by marking its products with the patent-in-suit since at least March 2016. No other prior litigation, licensing, or post-grant proceedings are mentioned.

Case Timeline

Date	Event
2013-11-25	Earliest Priority Date for U.S. Patent No. 9,286,282
2016-03-15	U.S. Patent No. 9,286,282 Issued
2016-03-31	Alleged start date of Plaintiff marking products with '282 patent
2024-05-10	Complaint Filed

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

U.S. Patent No. 9,286,282 - Obtaining Data from Abandoned Electronic Forms

• Patent Identification: U.S. Patent No. 9,286,282, Obtaining Data from Abandoned Electronic Forms, issued March 15, 2016.

The Invention Explained

• Problem Addressed: Business entities lose significant revenue when potential online customers begin filling out an electronic form (e.g., for a purchase or lead generation) but fail to complete and submit it, for reasons often unknown to the business (ʼ282 Patent, col. 1:15-37).
• The Patented Solution: The invention describes systems and methods to automatically retrieve data that a user has entered into a web form, even if the user abandons the form without clicking "submit." This is accomplished by embedding a script into the webpage containing the form, which "scrapes" the user-entered data in real-time or near-real-time, allowing the business to identify and remarket to the "lost" consumer (ʼ282 Patent, Abstract; col. 1:38-48).
• Technical Importance: The complaint asserts that this approach provided a technical solution to the computer-specific problem of data loss from abandoned web forms, improving upon prior techniques that required form submission or user login to capture data (Compl. ¶21).

Key Claims at a Glance

• The complaint asserts independent claims 1 and 9 (Compl. ¶24).
• Independent Claim 1 (a method claim) includes these essential elements:
  • Determining that an electronic form (comprising an HTML element) accessed by a user has been abandoned.
  • Obtaining data from the abandoned form using embedded computer-executable instructions by building a data structure based on the form and parsing that structure to get the HTML element.
  • Storing the HTML element, its attribute, and/or the user-entered text.
• Independent Claim 9 (an apparatus claim) recites corresponding elements implemented in "computer hardware":
  • Computer hardware configured to determine a user has abandoned an electronic form.
  • Computer hardware configured to obtain data from the form by building and parsing a data structure.
  • Computer hardware configured to store the obtained element, attribute, and user-entered text.
• The complaint does not explicitly reserve the right to assert dependent claims.

III. The Accused Instrumentality

Product Identification

• The accused instrumentalities are Defendant's "Zuko Analytics" and "Zuko Forms" products and services (Compl. ¶25).

Functionality and Market Context

• The complaint alleges that the accused products "can track your forms regardless of how they are built technically" to help businesses improve form conversion rates (Compl. ¶5, ¶25). The complaint asserts that Defendant markets these products to a global customer base, including notable U.S. customers such as Capital One and Experian (Compl. ¶5).

IV. Analysis of Infringement Allegations

The complaint references a claim chart in "Exhibit C" purporting to show how Defendant’s products infringe the ’282 patent (Compl. ¶27). However, this exhibit was not filed with the complaint.

The narrative infringement theory is that Defendant's Zuko Analytics and Zuko Forms products perform the method of the asserted claims by tracking user interaction with online forms, capturing data from those forms even when they are abandoned, and making that data available for analysis and marketing (Compl. ¶2, ¶5, ¶25). The complaint includes a screenshot from the Plaintiff’s website listing its patents, including the ’282 patent, which it alleges constitutes marking and public notice of its rights (Compl. ¶4, p. 2). The complaint does not, however, provide specific factual allegations in its main body that map features of the accused products to the specific limitations of the asserted claims, instead relying on the un-provided exhibit.

V. Key Claim Terms for Construction

• The Term: "abandoned by the user"

• Context and Importance: This term is the trigger for the entire claimed method. Its definition is critical to determining the scope of infringement, as it dictates what user actions or inactions qualify. Practitioners may focus on this term because its boundaries (e.g., a specific duration of inactivity versus navigating away from the page) will define the point at which the accused data-capturing functionality can be said to occur.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The specification lists several distinct, non-limiting examples of what can constitute abandonment, including "a length of time that the electronic form is accessed, the user leaving a website associated with the electronic form, the user canceling the electronic form, and a failure of the user to input data into the electronic form" (ʼ282 Patent, col. 2:31-36). This disjunctive list could support a construction where any one of these events is sufficient.
  • Evidence for a Narrower Interpretation: While the specification provides examples, a defendant may argue that in the context of the entire patent, "abandonment" requires more than mere momentary inactivity and implies a definitive termination of the user's session with the form, pointing to language about "lost consumers" (ʼ282 Patent, col. 1:35-37).

• The Term: "building a data structure based on the abandoned electronic form"

• Context and Importance: This is a core technical step of the invention. The infringement analysis will depend on what level of technical complexity and organization is required to satisfy this limitation. The question is whether any collection of scraped data meets this limitation or if a more specific, organized format is required.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The patent does not explicitly define "data structure" in a restrictive way, which could support a plain and ordinary meaning that encompasses any organized collection of data, such as simple key-value pairs representing form fields and user input.
  • Evidence for a Narrower Interpretation: The specification mentions building a "matrix of the captured data" (ʼ282 Patent, col. 8:22-24) and discusses "vertical aggregation platforms" (ʼ282 Patent, col. 8:51). A party could argue these examples imply that "building a data structure" requires more than simply collecting raw text, and instead necessitates creating an organized, relational, or matrix-like representation of the form's elements and the data within them.

VI. Other Allegations

• Indirect Infringement: The complaint alleges induced infringement, stating that Defendant provides "Installation Guides" and "Optimization Guides" that instruct its customers and partners on how to use the accused Zuko products in an infringing manner (Compl. ¶29). It also alleges contributory infringement, asserting the products are a material part of the invention and not suitable for substantial non-infringing use (Compl. ¶30).
• Willful Infringement: The complaint alleges knowledge of the ’282 patent "in no event later than the date of service of this Complaint" (Compl. ¶28), which supports a claim for post-suit willfulness. The complaint also alleges that Plaintiff has marked its products with the patent number since at least March 2016 (Compl. ¶4), which may be used to argue pre-suit knowledge through constructive notice.

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

• A central issue will be one of definitional scope: How will the court construe the term "abandoned by the user"? The outcome will depend on whether the term encompasses a broad range of user behaviors, such as a brief pause in typing, or is limited to more definitive actions like closing a browser tab.
• The primary challenge for the plaintiff will be one of evidentiary proof: As the complaint lacks specific technical details on the accused products' operation and relies on an un-provided exhibit, a key question is whether discovery will produce evidence that Defendant's Zuko products perform the specific, claimed steps of "building a data structure" and "parsing" it, or if they operate via a technically distinct mechanism for tracking form analytics.
• A third question will relate to damages and willfulness: Will Plaintiff’s allegation of marking its website with the patent number since 2016 be sufficient to establish pre-suit notice for the purpose of willfulness and pre-suit damages, or will knowledge be limited to the date the complaint was served?