IP Law Daily, PATENT—D. Del.: Dispute over patentability of digital messaging technique can't be resolved at summary judgment, (Aug 19, 2025)

By Steven Melendez

A U.S. magistrate judge ruled "genuine disputes of material fact" remain in deciding whether the patent is directed to an abstract idea.

A patent infringement claim brought by Stodge Inc., doing business as Postscript, will proceed against Attentive Mobile Inc. after a U.S. magistrate judge ruled "genuine disputes of material fact" prevent deciding on summary judgment whether the asserted patent is directed to an unpatentable abstract idea (Stodge Inc. v. Attentive Mobile Inc., No. 23-87-CJB (D. Del. Aug. 18, 2025)).

Postscript alleges that Attentive infringes certain claims of its U.S. Patent No. 11,709,660 (the ’660 patent), which covers a technique of digital messaging that can be harnessed for purposes like marketing campaigns. Attentive argues the claims are invalid as directed to a patent-ineligible abstract idea. The court previously resolved separate patent infringement claims brought by Attentive against Postscript in favor of Postscript. In addition, Postscript has also narrowed the list of claims it's asserting down to four.

The court selected one of the patent claims, claim 14, as representative and applied the test defined by the U.S. Supreme Court in Alice Corp. Pty. Ltd. v. CLS Bank Int’l.

Alice test. The first step of the Alice test requires the court to consider whether the "claims are directed to an improvement in computing devices or other technology" or merely to "an 'abstract idea' for which computers are merely evoked as a tool," according to the ruling.

Here, Attentive argued that the asserted patent claims are directed to an abstract idea of "messaging users in response to relevant events." Attentive argued that the patent's inventors merely copied prior art systems that message users based on relevant events in the same way, according to the ruling.

Postscript agrees that such messaging is generally a "longstanding commercial practice," according to the ruling, but it says that its patent claims are more specific than that. Its patent claims describe an "improved system architecture" for "multi-message campaigns in which subscribers are enrolled into a segment . . . that receives messages, with subsequent messages retargeted to certain subscribers based on monitoring events in the meantime” and segments created through correlating data from two sources, according to the ruling.

"Postscript argues that the claimed invention amounted to a significant improvement over prior art systems that created messaging marketing campaigns," according to the ruling, allowing for multi-message campaigns based on recipient segmentation "with subsequent messages retargeted to certain subscribers based on monitoring events in the meantime."

In Attentive's assertions, the court ruled, the company is "grossly oversimplifying the claim" as it "ignores its actual requirements." Attentive's arguments also assume the claims involve "entirely conventional technology," which Postscript denies, according to the ruling, and based on that assumption don't focus on specific elements of the patent claims.

Ultimately, the disagreement between the parties leaves the record "rife with genuine disputes of material fact as to whether the '660 patent claims a messaging system that is conventional," leaving the court unable to resolve the matter by summary judgment, according to the ruling.

The Case is No. 23-87-CJB.

Judge: Burke, C.

Attorneys: Daniel M. Silver (McCarter & English, LLP) for Stodge Inc., d/b/a Postscript. Michael J. Flynn (Morris, Nichols, Arsht & Tunnell LLP) for Attentive Mobile Inc.

Companies: Stodge Inc., d/b/a Postscript; Attentive Mobile Inc.

Cases: Patent TechnologyInternet DelawareNews