United States District Court, D. Delaware
Brian E. Farnan, Esq., FARNAN LLP, Wilmington, DE; Andrew G. Heinz, Esq. (argued), DESMARAIS LLP, New York, NY, Attorneys for Plaintiff Tuxis Technologies, LLC.
Steven J. Balick, Esq., ASHBY & GEDDES, Wilmington, DE; William H. Baumgartner, Jr., Esq. (argued), SIDLEY AUSTIN, LLP, Chicago, IL, Attorneys for Defendant Amazon.com, Inc.
RICHARD G. ANDREWS, District Judge.
Before the Court is the Motion of Amazon.com, Inc. to Dismiss for Failure to State a Claim. (D.I.10). The motion is fully briefed (D.I.11, 12 & 14) and oral argument was held on May 23, 2014. (D.I. 21). For the reasons that follow, Amazon.com Inc.'s Motion is granted with respect to claim 1.
This is a patent infringement case filed by Tuxis Technologies, LLC on October 29, 2013. (D.I. 1). Tuxis alleges infringement of the 6, 055, 513 ("the '513 patent") against Amazon.com, Inc. The '513 patent relates to a method of upselling, and the patentees describe the invention as follows:
Apparatus and methods are provided for effecting remote commerce, such as in telemarketing (either inbound or outbound) and in electronic commerce, which are particularly adapted for the intelligent selection and proffer of products, services or information to a user or customer. In one aspect of the invention, goods, service[s] or information are provided to the user via electronic communication, such as through a telephone, videophone or other computer link, as determined by the steps of first, establishing communication via the electronic communications device between the user and the system to effect a primary transaction or primary interaction, second, obtaining data with respect to the primary transaction or primary interaction, including at least in part a determination of the identity of the user or prospective customer, third, obtaining at least a second data element relating to the user, fourth, utilizing the primary transaction or primary interaction data along with the at least second data element as factors in determining at least one good, service or item of information for prospective upsell to the user or prospective customer, and offering the item to the prospective customer. In the preferred embodiment, the selection of the proffer of goods, services or information comprises an upsell with respect to the primary transaction or primary interaction data. The offer of the upsell is preferably generated and offered in real time, that is, during the course of the communication initiated with the primary transaction or primary interaction. '513 patent, Abstract. Claim 1 of the '513 patent is representative of the numerous asserted claims. Claim 1 recites:
A method for providing offers in real time of an item constituting a good or a service in the form of offers for purchase of the item to prospective customers as users of the system, utilizing an electronic communications device, comprising the steps of:
establishing a communication via the electronic communications device between the user and the system for [the] purpose of a user initiated primary transaction for purchase of a specific good or service,
obtaining primary transaction data with respect to the primary transaction, including the identity of the prospective customer and of the good or service for purchase in the primary transaction,
generating an upsell offer as a result of the user initiated primary transaction by:
utilizing the identity of the prospective customer to obtain at least a second data element relating to the user,
utilizing at least in part the primary transaction data including the identity of the good or service of the primary transaction and the second data element and determining at least one item for a prospective upsell transaction with the prospective customer, and
offering the item to the prospective customer and receiving an acceptance of the offer from at least one user in real time during the course ...