IP Law Daily, PATENT—D. Del.: Summary judgment of non-infringement denied in advertising campaign management program dispute, (Oct 30, 2025)

By Kevin M. Finson, J.D.

The company’s arguments hinged on a claim construction which was not adopted by the court.

A software company failed to show that there was an absence of a genuine question of material fact in allegations that its product infringed an asserted patent, the U.S. District Court in Wilmington has held. Claims for literal and doctrine of equivalents infringement of a software patent could not be decided on summary judgment because the moving party relied on a claim construction which was not supported by the claim language and specification (Attentive Mobile, Inc. v. Stodge, Inc., No. 23-87-CJB, (D. Del. Aug. 12, 2025)).

Attentive Mobile, Inc. (Attentive) brought a patent infringement suit against Stodge, Inc., d/b/a Postscript (Postscript). Postscript counterclaimed for infringement of U.S. Patent No. 11,709,660 (the ’660 patent), which was entitled “Integrated Third-Party Application Builder Trigger for Message Flow,” and which claimed systems and methods to create and target multi-message advertising campaigns. Attentive moved for summary judgment of non-infringement, arguing that its accused product did not literally or through the doctrine of equivalents practice the “monitoring” limitation found in all of the asserted claims.

Claim construction. Attentive argued that the “monitoring” limitation in each of the asserted claims required constant supervision or tracking of a trigger condition, and that its accused product did not engage in that required constant monitoring. The court found that the plain language of the patent terms and the specification showed that constant monitoring was not required, but rather periodic check-ins could be sufficient to infringe. This was sufficient to dispose of Attentive’s arguments under the doctrine of equivalents.

Literal infringement. The court took issue with Attentive’s literal infringement argument because it mischaracterized the expert report relied on by Attentive, describing it as not addressing how the accused product satisfied the monitoring limitation without engaging with the substance of the report. The court, reviewing the report, found that the expert had laid out in detail her opinion on how the accused product met that limitation with reference to the relevant source code. While Attentive did actually engage with this opinion in its reply brief, the court held that this was too late, and by not addressing the issue in its opening brief the matter had been forfeited.

The court denied the motion for summary judgment of non-infringement.

The Case is No. 23-87-CJB.

Judge: Burke, C.

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

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

Cases: Patent DelawareNews