Vieri v. Ez Texting Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Riccardo Vieri (Individual)
  • Defendant: EZ Texting, Inc. (Delaware)
  • Plaintiff’s Counsel: Garteiser Honea, PLLC
• Case Identification: 7:25-cv-00202, W.D. Tex., 04/28/2025
• Venue Allegations: Plaintiff alleges venue is proper in the Western District of Texas because Defendant has a "regular and established physical place of business" in the District and has committed acts of infringement there.
• Core Dispute: Plaintiff alleges that Defendant’s SMS marketing platform infringes a patent related to systems and methods for delivering contextual advertising within a messaging framework.
• Technical Context: The technology at issue addresses the monetization of messaging services by analyzing message context to deliver targeted advertisements.
• Key Procedural History: The complaint notes that the patent-in-suit has been cited in patent applications by Google and Apple, and that no products have been commercialized or licensed by the patent owner.

Case Timeline

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

U.S. Patent No. 8,156,005 - “Systems and Methods of contextual advertising,” issued April 10, 2012 (’005 Patent)

The Invention Explained

• Problem Addressed: The patent's background section describes a decline in the effectiveness of traditional online advertising like banner ads, concurrent with the rise of Short Message Service (SMS) as a primary communication method. (Compl. ¶10; ’005 Patent, col. 1:15-30).
• The Patented Solution: The invention describes a computer system that acts as an intermediary for messages. When a sender transmits a message to a recipient, the system intercepts it. It then analyzes characteristics of the sender, the recipient, and/or the message content to select a relevant advertisement. The system then forwards the original message to the intended recipient while delivering the selected advertisement back to the original sender. (’005 Patent, Abstract; Fig. 1).
• Technical Importance: This approach creates a model for monetizing peer-to-peer or application-to-person messaging by leveraging the communication's context to target the message originator with advertising. (Compl. ¶17; ’005 Patent, Abstract).

Key Claims at a Glance

• The complaint asserts infringement of "one or more claims," focusing on at least Claim 1. (Compl. ¶¶26-28).
• Independent Claim 1 of the ’005 Patent recites a system comprising:
  • a processor;
  • a message receiving module for receiving SMS message data from a sender via a user interface of a particular website;
  • an advertisement selection module that identifies campaign data (based on recipient, sender, or message characteristics), determines if the sender is a "frequent message sender" and a "frequent visitor to the particular website," selects an advertisement based on this data and the message content, and adds the sender to an "autoresponder cycle";
  • a message delivery module to send the SMS message to the recipient; and
  • an advertisement delivery module to send the selected advertisement to the sender.

III. The Accused Instrumentality

Product Identification

• The accused instrumentality is the EZ Texting SMS marketing platform ("the accused functionality"). (Compl. ¶26).

Functionality and Market Context

• The accused product is a system that "provides companies the ability to send automated and personalized SMS messages to their customers." (Compl. ¶26). The complaint highlights features for "customer segmentation," which involves grouping a business's customers based on data such as "purchase history, demographic information, and customer feedback" to tailor marketing messages. (Compl. ¶27, Fig. 3).
• The complaint provides a screenshot of the EZ Texting website, which presents the service as "the effortless way to secure a trusted number, build an attentive contact list, and send effective texts." (Compl. Fig. 2). Another screenshot shows how the platform enables personalized messages, such as targeting a user named Clara with a soccer-related promotion, allegedly based on her interests. (Compl. Fig. 3). This image shows an example marketing message sent to a customer.

IV. Analysis of Infringement Allegations

’005 Patent Infringement Allegations

Identified Points of Contention

• Architectural Question: A central dispute may be whether sending a message to a recipient can satisfy a claim limitation that explicitly requires sending an advertisement to the sender.
• Scope Question: The infringement theory appears to treat the entire customized message created by the user as the "advertisement." The '005 patent's disclosure, which describes a system that receives a message and separately selects an advertisement, may raise the question of whether the user-generated message itself can be considered the "selected advertisement" under the claims.
• Evidentiary Question: Claim 1 requires several specific functions from the "advertisement selection module," including determining if the sender is a "frequent message sender" and "frequent visitor," and adding the sender to an "autoresponder cycle." The complaint does not appear to provide factual allegations detailing how the accused product performs these specific functions.

V. Key Claim Terms for Construction

• The Term: "send the selected advertisement to the sender"

  • Context and Importance: The viability of the infringement case may depend heavily on the construction of this phrase. The patent's architecture and the accused product's functionality appear to differ on this point, as the patent describes sending an ad back to the message originator, while the accused product sends a promotional message to a third-party recipient.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The complaint does not point to specific evidence supporting a broader reading that would cover sending a message to the recipient.
    • Evidence for a Narrower Interpretation: The patent Abstract states the system includes "an advertisement delivery module to send the advertisement to the sender." (’005 Patent, Abstract). Figure 1, a block diagram of the system, explicitly shows an arrow from the "ADVERTISEMENT DELIVERY MODULE" (118) pointing back to the "SENDER" (108). (’005 Patent, Fig. 1).

• The Term: "advertisement"

  • Context and Importance: Practitioners may focus on this term because the plaintiff's theory equates the entire user-generated message with the claimed "advertisement." The defense may argue the patent contemplates a separate, third-party ad selected by the system, not the primary content created by the user.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The term is not explicitly defined in the patent, potentially leaving it open to an interpretation that includes any message with a commercial purpose.
    • Evidence for a Narrower Interpretation: The claim language recites a module that "select[s] an advertisement based on... at least a portion of the SMS message data," which suggests the "advertisement" and the "SMS message data" are distinct entities. (’005 Patent, col. 12:11-17).

VI. Other Allegations

• Indirect Infringement: The complaint alleges that features of the accused products "induce and contribute to infringement," but provides minimal factual support beyond pointing to marketing materials that describe how to create personalized campaigns. (Compl. ¶27).
• Willful Infringement: The complaint does not allege pre-suit knowledge of the patent. It suggests a basis for post-suit willfulness by stating that certain actions constitute infringement "at least from the service of this lawsuit." (Compl. ¶27).

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

• A core issue will be one of architectural congruence: Can a system that sends a promotional message from a sender to a designated recipient be found to infringe claims that explicitly require a system to receive a message and then "send the selected advertisement to the sender"? The complaint's allegations appear to present a fundamental mismatch with the information flow described and claimed in the patent.
• A key evidentiary question will be one of functional completeness: Can the plaintiff provide evidence that the accused system performs all the specific functions required by the asserted independent claim, including classifying users as "frequent" and adding them to an "autoresponder cycle," elements on which the complaint is currently silent?