DCT

2:13-cv-00957

Kombea v. Noguar

Key Events

Complaint

I. Executive Summary and Procedural Information

Parties & Counsel:
- Plaintiff: KomBea Corporation (Utah)
- Defendant: Noguar L.C. (Utah); Feature Films for Families, Inc. (Utah)
- Plaintiff’s Counsel: Holland & Hart LLP
Case Identification: 2:13-cv-00957, D. Utah, 10/17/2013
Venue Allegations: Venue is alleged to be proper in the District of Utah as both Defendants are Utah entities with principal places of business within the district.
Core Dispute: Plaintiff seeks a declaratory judgment that its call center software does not infringe and/or invalidates five patents owned by Defendant Noguar, while also alleging that Defendant FFF’s call center software infringes one of Plaintiff's own patents related to conversation control systems.
Technical Context: The technology at issue involves call center software that enables human agents to conduct conversations using pre-recorded audio scripts, a method intended to improve the efficiency and consistency of telemarketing and customer service operations.
Key Procedural History: The complaint alleges a shared operational history between the parties, asserting that Plaintiff’s principal, a former programmer for Defendant FFF, is the true inventor of the technology claimed in the Noguar patents. This inventorship dispute forms a primary basis for Plaintiff's invalidity contentions. The declaratory judgment action was precipitated by Defendant Noguar’s pre-suit allegations of infringement made to both the Plaintiff and its customer. On May 12, 2015, the assignee, KomBea Corporation, filed a disclaimer for all claims of U.S. Patent No. 8,468,027.

Case Timeline

Date	Event
2000-08-15	Priority Date for ’387, ’494, ’619, and ’510 Patents
2001-05-01	Brady Dow, alleged inventor of Noguar patent technology, leaves Defendant FFF
2001-08-01	Application filed leading to ’387 Patent
2001-09-04	Priority Date for ’027 Patent
2004-03-17	Priority Date for ’195 Patent
2009-12-29	U.S. Patent No. 7,640,510 Issues
2010-01-26	U.S. Patent No. 7,653,195 Issues
2011-04-26	U.S. Patent No. 7,933,387 Issues
2013-05-07	U.S. Patent No. 8,438,494 Issues
2013-06-18	U.S. Patent No. 8,468,027 Issues
2013-08-06	U.S. Patent No. 8,503,619 Issues
2013-10-17	Complaint Filing Date

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

U.S. Patent No. 8,468,027 - “Systems and Methods for Deploying and Utilizing a Network of Conversation Control Systems”

Patent Identification: U.S. Patent No. 8,468,027, “Systems and Methods for Deploying and Utilizing a Network of Conversation Control Systems,” issued June 18, 2013.

The Invention Explained

Problem Addressed: The patent’s background section describes the operational challenges in businesses that rely on sales personnel, including inconsistency in approach, high employee turnover due to rejection and fatigue, and significant wasted training costs (U.S. Patent No. 8,468,027, col. 1:19-67).
The Patented Solution: The invention is a network of computer-based "conversation control systems" that allow human operators to direct a "pseudo-conversation" with a recipient. The operator uses an interface to select pre-scripted audio items, which are then presented to the recipient, while receiving the recipient's responses. This architecture aims to provide a consistent sales approach across many operators (U.S. Patent No. 8,468,027, col. 2:36-50; Abstract).
Technical Importance: This system architecture sought to centralize control and consistency over a distributed network of call center agents, combining the scalability of software with the conversational judgment of human operators (U.S. Patent No. 8,468,027, col. 2:8-14).

Key Claims at a Glance

The complaint asserts "one or more claims" of the ’027 Patent (Compl. ¶36). Independent claim 1 is representative of the system claimed.
Essential Elements of Claim 1:
- A first conversation control system accessible to a first human operator for selecting and performing script items for a first human recipient.
- A second conversation control system accessible to a second human operator for selecting and performing script items for a second human recipient.
- A central control communicably coupled to both the first and second conversation control systems.

U.S. Patent No. 7,933,387 - “Voice Transition Script Caller”

Patent Identification: U.S. Patent No. 7,933,387, “Voice Transition Script Caller,” issued April 26, 2011.

The Invention Explained

Problem Addressed: The patent background identifies the inflexibility and unnatural sound of existing call center systems that use pre-recorded scripts. A key problem noted is the lack of a "seamless transition" between a recorded voice and a live agent's voice, which can alert the customer that they are interacting with an automated system (’387 Patent, col. 1:51-65).
The Patented Solution: The invention is a system that allows a human agent to "selectively interleave" pre-recorded audio scripts with their own live voice during a call. The system uses a signal processor to "normalize" the audio signals from both the recorded scripts and the agent's microphone, intending to make the two sound sources indistinguishable to the customer over a standard telephone line, thereby creating a seamless "voice transition" (’387 Patent, col. 2:3-10; Abstract).
Technical Importance: The invention’s focus on audio signal normalization to mask the transition between live and recorded voice addressed a key factor in customer perception, aiming to make semi-automated calls feel more natural and thus more effective (’387 Patent, col. 2:30-43).

Key Claims at a Glance

The complaint seeks a declaratory judgment regarding the Noguar patents, including the ’387 Patent, but does not identify specific claims at issue (Compl. ¶24-25). Independent claim 1 is representative.
Essential Elements of Claim 1 (Method):
- Providing a system for interaction with a contact, selectable between human and computer delivery.
- Executing an interaction protocol.
- Initiating a call to the contact.
- Allowing an agent to selectively interleave recorded scripts (comprising scripted responses and interjections) during the call.

U.S. Patent No. 8,438,494 - “Apparatus, System, and Method for Designing Scripts and Script Segments for Presentation to a Contact by an Agent”

Patent Identification: U.S. Patent No. 8,438,494, “Apparatus, System, and Method for Designing Scripts and Script Segments for Presentation to a Contact by an Agent,” issued May 7, 2013.
Technology Synopsis: This patent describes an apparatus for formulating a sequence of scripts by observing and recording agent interactions with contacts. The system analyzes these interactions to identify effective patterns, which are then used to create and refine dynamic script structures that incorporate fixed content, customer-specific content, and agent-interjected content (’494 Patent, Abstract).
Asserted Claims: One or more claims are in controversy (Compl. ¶24).
Accused Features: KomBea’s call center software products are the subject of the non-infringement claim (Compl. ¶25).

U.S. Patent No. 7,640,510 - “Apparatus, System, and Method for Presenting Scripts to a Contact”

Patent Identification: U.S. Patent No. 7,640,510, “Apparatus, System, and Method for Presenting Scripts to a Contact,” issued December 29, 2009.
Technology Synopsis: The patent discloses a system for presenting scripts where a script player module plays pre-recorded audio files. A presentation module provides script options to an agent, and a profile module stores contact-specific data to allow the presentation of personalized, contact-specific scripts (’510 Patent, Abstract).
Asserted Claims: One or more claims are in controversy (Compl. ¶24).
Accused Features: KomBea’s call center software products are the subject of the non-infringement claim (Compl. ¶25).

U.S. Patent No. 8,503,619 - “Method and Device for Interacting with a Contact”

Patent Identification: U.S. Patent No. 8,503,619, “Method and Device for Interacting with a Contact,” issued August 6, 2013.
Technology Synopsis: This patent describes a system that allows an agent to manage an interaction by selectively interleaving pre-recorded script segments, which can include both informational dialogue and conversational interjections. The stated goal is for the selective playing of scripts to mimic a conversion between actual persons (’619 Patent, Abstract).
Asserted Claims: One or more claims are in controversy (Compl. ¶24).
Accused Features: KomBea’s call center software products are the subject of the non-infringement claim (Compl. ¶25).

U.S. Patent No. 7,653,195 - “Apparatus, System, and Method for Disposing of a Call”

Patent Identification: U.S. Patent No. 7,653,195, “Apparatus, System, and Method for Disposing of a Call,” issued January 26, 2010.
Technology Synopsis: The patent discloses a system for managing call center workflow by initiating multiple calls and transferring them to an agent. A key feature is the simultaneous presentation of multiple transferred calls to a single agent for disposition, with an interface designed to manage the concurrent interactions (’195 Patent, Abstract).
Asserted Claims: One or more claims are in controversy (Compl. ¶24).
Accused Features: KomBea’s call center software products are the subject of the non-infringement claim (Compl. ¶25).

III. The Accused Instrumentality

Product Identification

Defendant FFF’s "ECHO" software product (Compl. ¶36).

Functionality and Market Context

The complaint identifies the accused instrumentality as the "ECHO" software, which it alleges FFF uses in its call center (Compl. ¶36). The complaint alleges that FFF and KomBea are direct competitors (Compl. ¶41). The complaint does not provide specific technical details about the ECHO software’s features or operation beyond the conclusory allegation that it infringes the ’027 patent.

IV. Analysis of Infringement Allegations

The complaint alleges that FFF's ECHO software "satisfies every limitation recited in one or more claims of the ‘027 patent" (Compl. ¶36). However, it does not provide a claim chart or any specific factual allegations mapping features of the ECHO software to the elements of the asserted claims. Therefore, the complaint does not provide sufficient detail for a tabular analysis of the infringement allegations.

Similarly, the complaint seeks a declaratory judgment of non-infringement of the Noguar patents, including the ’387 patent, based on pre-suit allegations made by Defendant Noguar (Compl. ¶20, 24). The complaint does not articulate Noguar's specific infringement theory or map any features of KomBea's products to the patents' claims. Therefore, the complaint does not provide sufficient detail for analysis of these infringement allegations.

No probative visual evidence provided in complaint.

Identified Points of Contention

Scope Questions (re: ’027 Patent): A foundational question for the infringement claim against FFF will be whether the "ECHO" software, as used in FFF's call center, constitutes a "network of conversation control systems" as required by claim 1 of the ’027 Patent. The complaint's focus on a singular "software product" raises the question of whether it describes an infringing system comprising at least two distinct conversation control systems and a central control.
Technical Questions (re: ’387 Patent): The underlying dispute for the declaratory judgment action may concern whether KomBea's products perform the function of allowing an agent to "selectively interleave" their live voice with recorded scripts. Evidence will be required to establish the precise operational method of KomBea's software and compare it to the functions recited in the claims of the Noguar patents.

V. Key Claim Terms for Construction

Term from the ’027 Patent: "conversation control system"

Context and Importance: This term defines the fundamental building block of the claimed network in the ’027 Patent. The construction of this term will be critical to determining whether FFF's deployment of its "ECHO software" constitutes one system or the multiple, networked "systems" required to infringe claim 1.
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The claim language does not appear to require distinct hardware for each "system," which may support an argument that separate software instances running on different terminals or virtual machines could each be considered a "conversation control system."
- Evidence for a Narrower Interpretation: The specification of the ’027 Patent describes a "conversation control system 110" as including a computer, I/O devices, and various interfaces (U.S. Patent No. 8,468,027, col. 5:60-67). This may support a narrower construction where each "system" must be a more complete, standalone hardware and software unit, suggesting that multiple users of a single, centralized software platform might not constitute multiple "systems."

Term from the ’387 Patent: "selectively interleave recorded scripts"

Context and Importance: This phrase from claim 1 of the ’387 Patent is central to the method claimed. The non-infringement dispute will likely hinge on whether the functionality of KomBea's products meets this limitation, making its definition a key point of contention.
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The plain language of the claim could be argued to cover any method where an agent alternates between playing recorded audio and speaking live, regardless of the audio quality or transition mechanism.
- Evidence for a Narrower Interpretation: The specification repeatedly emphasizes "seamlessly and transparently integrating an agent's live voice with a prerecorded voice" through signal normalization (’387 Patent, col. 2:6-10). This may support a construction where "interleave" requires the specific technical feature of masking the audio transition between live and recorded sources, thereby narrowing the claim's scope.

VI. Other Allegations

Indirect Infringement: The complaint alleges FFF indirectly infringes the ’027 patent through both induced infringement ("actively inducing its customers and licensee's to use the ECHO software") and contributory infringement ("selling the ECHO product, which is specially designed to operate in a manner that infringes... and does not have significant non-infringing uses") (Compl. ¶38).
Willful Infringement: Willfulness is alleged based on FFF's purported pre-suit knowledge. The complaint states, "on information and belief, FFF has at all times relevant to this matter been aware of the ‘027 patent and the fact that FFF’s use of the ECHO products was likely to infringe" (Compl. ¶40).

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

This litigation presents three central questions for the court that span distinct legal and factual domains:

A threshold issue will be one of proper inventorship: can KomBea produce sufficient evidence to support its claim that its principal, Brady Dow, was an uncredited inventor of the subject matter in the Noguar patents, a finding that could render those patents invalid or unenforceable?
A key infringement question regarding the ’027 patent will be one of architectural scope: does FFF’s "ECHO" software product, as implemented in its call center, constitute the claimed network of multiple, distinct "conversation control systems" linked to a "central control," or is there a fundamental mismatch between the accused product's architecture and the system claimed in the patent?
Underlying the declaratory judgment action is a core question of functional operation: do KomBea's software products technically perform the "selective interleaving" of live and recorded voice as claimed in patents like the ’387 patent, or do they operate on a different technical principle that falls outside the patent's construed scope?