DCT

3:22-cv-00363

Lemko Corp v. Microsoft Corp

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I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: 3:22-cv-00363, N.D. Tex., 09/06/2024
  • Venue Allegations: Venue is based on allegations that both Microsoft and its subsidiary, Affirmed Networks, maintain regular and established places of business within the Northern District of Texas and have committed acts of infringement in the district.
  • Core Dispute: Plaintiff alleges that Defendants' virtualized mobile core network products and services infringe a portfolio of eight U.S. patents related to distributed and fault-tolerant mobile network architectures.
  • Technical Context: The technology concerns the architectural shift from centralized, hardware-based mobile networks to decentralized, software-based systems that place network functions at the "edge," a key enabler for 4G/5G services.
  • Key Procedural History: This Second Amended Complaint follows an original complaint filed in February 2022 and a First Amended Complaint filed in October 2023. Plaintiff served Preliminary Infringement Contentions in December 2022. Notably, after an Inter Partes Review (IPR) proceeding (IPR2023-00529), the U.S. Patent and Trademark Office issued a certificate confirming the patentability of asserted claims from the '414 Patent, a development that may narrow future validity disputes for that patent.

Case Timeline

Date Event
2005-04-13 '763 Patent Priority Date
2006-02-24 '414 Patent Priority Date
2006-03-30 '111 Patent Priority Date
2008-04-23 '980 Patent Priority Date
2008-06-27 '931 Patent Priority Date
2008-07-11 '409 Patent & '478 Patent Priority Date
2008-07-14 '988 Patent Priority Date
2009-06-16 '763 Patent Issued
2010-01-26 '414 Patent Issued
2010-12-21 '988 Patent Issued
2012-01-31 '409 Patent Issued
2014-04-01 '111 Patent Issued
2015-11-17 '980 Patent Issued
2016-05-03 '478 Patent Issued
2017-09-05 '931 Patent Issued
2020 Microsoft acquires Affirmed Networks
2022-02-16 Original Complaint Filed
2022-12-20 Preliminary Infringement Contentions Served
2023-02-15 IPR filed against '414 Patent
2023-10-19 First Amended Complaint Filed
2024-09-06 Second Amended Complaint Filed

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

U.S. Patent No. 7,548,763 - "System, Method, and Device for Providing Communications Using a Distributed Mobile Architecture"

  • Patent Identification: U.S. Patent No. 7,548,763, "System, Method, and Device for Providing Communications Using a Distributed Mobile Architecture," Issued June 16, 2009. Compl. ¶20

The Invention Explained

  • Problem Addressed: The patent describes conventional cellular networks as being built on a "centralized, hierarchical architecture" that relied on expensive, custom hardware at regional call centers Compl. ¶12 '763 Patent, col. 1:33-43 This model was costly, inefficient for local calls, and economically impractical for deployment in rural areas due to the high cost of backhaul connections and the need for a large user base (Compl. ¶12; Compl. ¶13, Compl. ¶¶col. 1:44-51).
  • The Patented Solution: The patent proposes a "distributed mobile architecture" (DMA) where network management functions, traditionally housed in a central mobile switching center (MSC), are implemented in software on decentralized "DMA servers" located at the network edge Compl. ¶¶15-16 '763 Patent, col. 3:1-7 These servers are interconnected via an IP network, forming a peer-to-peer system that can route calls locally without needing to go through a central hub, thereby reducing costs and increasing efficiency '763 Patent, abstract '763 Patent, col. 3:35-44 '763 Patent, FIG. 1
  • Technical Importance: This architecture represents an early conceptualization of Network Functions Virtualization (NFV) and Multi-access Edge Computing (MEC), paradigms that virtualize network functions and move them from dedicated hardware to software on standard servers closer to the user Compl. ¶14

Key Claims at a Glance

  • The complaint asserts at least exemplary Claim 1 Compl. ¶69
  • Independent Claim 1 of the '763 Patent recites a system with the following essential elements:
    • A first and a second distributed mobile architecture (DMA) server.
    • Each server comprises a computer-readable medium with a "mobile switching center module," a "base station controller module," and a "call detail record (CDR) generation program" embedded therein.
    • The second computer-readable medium further includes a program to allow a group call among four or more mobile devices.
    • The first and second DMA servers are each in "direct physical connection" with a wireless transceiver.
    • Telephony traffic received at the first server's transceiver is transmitted to the second server "via a peer-to-peer connection."
  • The complaint reserves the right to assert additional claims.

U.S. Patent No. 7,653,414 - "System, Method, and Device for Providing Communications Using a Distributed Mobile Architecture"

  • Patent Identification: U.S. Patent No. 7,653,414, "System, Method, and Device for Providing Communications Using a Distributed Mobile Architecture," Issued January 26, 2010. Compl. ¶22

The Invention Explained

  • Problem Addressed: In a distributed network architecture, a primary challenge is intelligently routing a call when the destination subscriber may be located in the same local network, a different peer network, or outside the distributed system entirely Compl. ¶39 A system is needed to locate the subscriber and determine the most efficient path.
  • The Patented Solution: The patent discloses a method for determining a call path by using a hierarchy of registers. A Home Location Register (HLR) and Visitor Location Register (VLR) are used to determine if a subscriber is in its "home" DMA system Compl. ¶112 '414 Patent, col. 5:2-10 If the subscriber is in another known DMA system, a Community Location Register (CLR) stores that information '414 Patent, col. 5:11-20 If the subscriber is outside the entire DMA network, a Destination Preference Register (DPR) is used to select a preferred external path, such as VoIP, ISDN, or a traditional MSC '414 Patent, col. 5:41-52 '414 Patent, FIG. 6
  • Technical Importance: This provides a rules-based routing logic essential for a distributed network, enabling it to handle calls efficiently to subscribers regardless of their location across federated or external networks Compl. ¶39

Key Claims at a Glance

  • The complaint asserts at least exemplary Claim 8 Compl. ¶101
  • Independent Claim 8 of the '414 Patent recites a method with the following essential steps:
    • Receiving a call at a first DMA system for a second mobile subscriber, in a network with at least first, second, and third DMA systems.
    • Determining if the subscriber is in the first wireless area using an HLR and VLR at the first DMA system.
    • If not, determining if the subscriber is in the second wireless area using a CLR (associated with the second DMA system) stored at the first DMA system.
    • If not, determining if the subscriber is in the third wireless area using a CLR (associated with the third DMA system) stored at the first DMA system.
    • If the subscriber is not in any of the first three areas, determining a "preferred call path to route the call outside of the DMA network" based on a Destination Preference Register (DPR) stored at the first DMA system.
  • The complaint reserves the right to assert additional claims.

Multi-Patent Capsules

  • U.S. Patent No. 7,855,988 ('988 Patent), "System, Method, and Device for Routing Calls Using a Distributed Mobile Architecture," Issued Dec. 21, 2010 Compl. ¶24

    • Technology Synopsis: The patent addresses routing communications between distributed mobile architecture servers. It discloses using DMA gateways (DMAGs) to route calls where the destination is accessible by a different group of DMA servers or a legacy communications network Compl. ¶25
    • Asserted Claims: At least exemplary Claim 42 Compl. ¶136
    • Accused Features: The Affirmed Private Network Service (APNS) product is accused of infringement Compl. ¶136

  • U.S. Patent No. 8,107,409 ('409 Patent), "OAMP for Distributed Mobile Architecture," Issued Jan. 31, 2012 Compl. ¶26

    • Technology Synopsis: This patent discloses a system for operations, administration, maintenance, and provisioning (OAMP). It describes a DMAG that routes communications to both home and roaming DMA nodes and can send performance data between home and visitor DMAGs Compl. ¶27
    • Asserted Claims: At least exemplary Claim 1 Compl. ¶168
    • Accused Features: The combination of APNS and vProbe products is accused of infringement Compl. ¶168

  • U.S. Patent No. 8,688,111 ('111 Patent), "System, Method, and Device for Providing Communications Using a Distributed Mobile Architecture," Issued Apr. 1, 2014 Compl. ¶28

    • Technology Synopsis: The patent discloses a method for determining whether a mobile device is registered with a first DMA system or a second DMA system. This determination is based on information stored in an Authentication, Authorization, and Accounting (AAA) module Compl. ¶29
    • Asserted Claims: At least exemplary Claim 15 Compl. ¶207
    • Accused Features: The APNS product is accused of infringement Compl. ¶207

  • U.S. Patent No. 9,191,980 ('980 Patent), "System and Method to Control Wireless Communications," Issued Nov. 17, 2015 Compl. ¶30

    • Technology Synopsis: The patent discloses a method for controlling wireless communications received from a mobile device at a BTS interface of a first DMA server. The system determines if a first DMAG supports communication with the destination device based on registration data stored at the first DMA server Compl. ¶31
    • Asserted Claims: At least exemplary Claim 1 Compl. ¶240
    • Accused Features: The Affirmed Mobile Core product is accused of performing the infringing method Compl. ¶240

  • U.S. Patent No. 9,332,478 ('478 Patent), "System, Method, and Device for Routing Calls Using a Distributed Mobile Architecture," Issued May 3, 2016 Compl. ¶32

    • Technology Synopsis: This patent describes a system for transmitting communications information from a first DMAG to a second DMAG within a DMAG communication network. This is used when the information is associated with a network accessible by the first DMAG Compl. ¶33
    • Asserted Claims: At least exemplary Claim 16 Compl. ¶272
    • Accused Features: The APNS product is accused of infringement Compl. ¶272

  • U.S. Patent No. 9,755,931 ('931 Patent), "Fault Tolerant Distributed Mobile Architecture," Issued Sep. 5, 2017 Compl. ¶34

    • Technology Synopsis: The patent discloses a fault-tolerant system where a DMAG management system detects a failure condition in a first DMAG. If the first DMAG is determined to be offline, a second DMAG is selected to take over, and notifications are sent to the second DMAG and to an external system Compl. ¶35
    • Asserted Claims: At least exemplary Claim 1 Compl. ¶307
    • Accused Features: The Affirmed Mobile Core product is accused of performing the infringing method Compl. ¶307

III. The Accused Instrumentality

Product Identification

  • The complaint identifies the "Accused Products" as a suite of offerings from Microsoft and its subsidiary Affirmed Networks, including: Affirmed Mobile Core, Affirmed Private Network Service (APNS), Azure Stack Edge (ASE), and Affirmed Networks' vProbe (Compl. ¶¶45; Compl. ¶50).

Functionality and Market Context

  • The Accused Products provide a virtualized mobile packet core solution for 4G and 5G networks, which can be deployed as a standalone service, on customer servers, or as a managed service (APNS) (Compl. ¶¶48; Compl. ¶51). The core of the accused functionality lies in the "Affirmed Mobile Core," which is software that performs network management and control functions (e.g., MME, SGW, PGW, HSS) that were traditionally handled by dedicated hardware Compl. ¶¶56-57 This software runs on servers, such as the accused Azure Stack Edge (ASE) hardware at the network edge, or in the Azure cloud, enabling a decentralized network architecture Compl. ¶¶62-63 The complaint alleges these products directly compete with Lemko's offerings in the virtualized Evolved Packet Core market Compl. ¶5 A logical test bed diagram illustrates the Affirmed Mobile Core (vEPC) architecture, showing its management, control, and data plane components running on servers Compl. p. 14

IV. Analysis of Infringement Allegations

'763 Patent Infringement Allegations

Claim Element (from Independent Claim 1) Alleged Infringing Functionality Complaint Citation Patent Citation
A system comprising a first DMA server and a second DMA server. An installation of Affirmed Mobile Core involves multiple instances, each with a Serving Gateway (SGW) and Packet Data Network Gateway (PGW), which allegedly operate as first and second DMA servers. ¶75 col. 3:1-7
a first and second mobile switching center module embedded in the first and the second computer readable medium Affirmed Mobile Core allegedly includes Mobility Management Entity (MME) functionality for managing mobile calls and handovers, and SGW/PGW functionality for call routing and switching, which collectively constitute the "mobile switching center module." ¶77 col. 4:15-18
a first and second base station controller module embedded in the first and second computer readable medium The MME allegedly handles resource and traffic management, and the PGW handles packet filtering, which are described as "base station control operations." ¶78 col. 4:18-21
a first and second call detail record (CDR) generation program embedded in the first and second computer readable medium Affirmed Mobile Core's SGW and PGW modules allegedly generate CDRs for charging and connect to charging systems (PCRF, OCS, OFCS). ¶79 col. 4:21-24
a program to allow a group call among four or more mobile communication devices, embedded in the second computer readable medium Affirmed Mobile Core allegedly supports Voice over Long Term Evolution (VoLTE) and emergency call handling, which includes the ability to allow group calling between multiple devices. ¶81 col. 5:46-63
Wherein the first and second DMA servers are in direct physical connection with a first and second wireless transceiver Affirmed Mobile Core's MME and SGW components allegedly connect to an eNodeB (a wireless transceiver) via the S1-MME and S1-U interfaces, which are alleged to be direct physical connections. A demonstrative diagram illustrates this flow (Compl. p. 26). ¶80 col. 3:7-9
Telephony traffic received at the first wireless transceiver of the first DMA server is transmitted from the first DMA server to the second DMA server via a peer-to-peer connection. Traffic from a mobile device is allegedly routed from a first PGW to a second SGW via an IP peer-to-peer connection (the S5/S8 interface) to reach a target device on the same private network, a feature described as "hair-pinning." A demonstrative diagram illustrates this peer-to-peer traffic flow (Compl. p. 28). ¶82 col. 3:35-44

Identified Points of Contention ('763 Patent)

  • Scope Questions: A central dispute may arise over whether the virtualized, software-based functions of the Accused Products (MME, SGW, PGW) fall within the scope of the patent's terms "mobile switching center module" and "base station controller module," which are rooted in a more hardware-centric era. The interpretation of "direct physical connection" in the context of standardized network interfaces (like S1-U) connecting to virtualized software may also be a point of contention.
  • Technical Questions: The complaint alleges that the accused product's VoLTE and emergency call capabilities meet the "group call" limitation. A technical question is whether these 3GPP-standard functions perform the specific capability for group calling as described and claimed in the patent, or if there is a functional distinction.

'414 Patent Infringement Allegations

Claim Element (from Independent Claim 8) Alleged Infringing Functionality Complaint Citation Patent Citation
A method to receive at a first DMA system of a DMA network, a call from a first mobile subscriber to a second mobile subscriber... The DMA network includes at least the first DMA system, a second DMA system, and a third DMA system. Affirmed Mobile Core allegedly forms a DMA network of nodes (DMA systems). A multi-node installation would include first, second, and third DMA systems, each comprising SGW and PGW modules. ¶¶108-109 col. 2:1-12
Determining whether the second mobile subscriber is located within a first wireless coverage area... based on information stored at an HLR and a VLR of the first DMA system Affirmed Mobile Core allegedly includes HLR (as part of the HSS) and VLR modules at each node to store subscriber registration and roaming information, which is used to determine the subscriber's location. ¶112 col. 7:42-50
When the second mobile subscriber is not located within the first wireless coverage area, determining whether the second mobile subscriber is located within a second wireless coverage area... based on information from a CLR (stored at the first DMA system) associated with the second DMA system. Affirmed Mobile Core allegedly includes a "CLR module," described as a mobile device pool for hairpinning, which allows traffic to be routed locally to a device in a second DMA system based on its destination IP address. ¶116 col. 7:51-62
...determining whether the second mobile subscriber is located within a third wireless coverage area... based on information stored at a CLR associated with the third DMA system... The "CLR module" functionality is alleged to extend to determining if the subscriber is located in a third DMA system. ¶117 col. 7:63-67
When the second mobile subscriber is not located within any of the first... second... and third wireless coverage area, determining a preferred call path to route the call outside of the DMA network based on information stored at a destination preference register ("DPR"), stored at the first DMA system. When a subscriber is outside the DMA network, Affirmed Mobile Core allegedly uses a "workflow or data profile," which functions as a DPR, to select a preferred path for routing the call externally. ¶118 col. 8:1-12

Identified Points of Contention ('414 Patent)

  • Scope Questions: A key question will be one of definitional scope: can the patent's specific register types-"HLR," "VLR," "CLR," and "DPR"-be construed to read on the accused product's allegedly corresponding features (HSS, roaming status data, "hair-pinning" device pools, and "workflow or data profile"). The defense may argue these modern, software-defined features are technically distinct from the register structures described in the patent.
  • Technical Questions: The infringement theory relies on a direct mapping of the patent's specific location-determination logic (a sequence of HLR/VLR checks, then CLR checks, then a DPR check). An evidentiary question will be whether the Accused Products actually perform this exact sequence of determinations or if they use a different, albeit functionally similar, routing logic dictated by 3GPP standards.

V. Key Claim Terms for Construction

For the '763 Patent

  • The Term: "mobile switching center module"
  • Context and Importance: This term is foundational to the infringement allegation for Claim 1. Plaintiff alleges that various software functionalities in Affirmed Mobile Core (MME, SGW, PGW) collectively constitute this "module" Compl. ¶77 Practitioners may focus on this term because its construction will determine if a collection of modern, virtualized network functions can be mapped onto a term rooted in the architecture of an earlier technology generation.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The specification describes the MSC module as including a gatekeeper connected to several gateways (e.g., circuit, packet data, SS7) and providing functions like call management, which could support an argument that it is defined by its function, not its specific form '763 Patent, col. 4:15-24
    • Evidence for a Narrower Interpretation: The specification explicitly shows the "MSC functionality" as a distinct block within the DMA server diagram '763 Patent, FIG. 2, item 206 A party might argue this implies a more monolithic or discrete software component than the collection of distributed microservices alleged to infringe.

For the '414 Patent

  • The Term: "community location register (CLR)"
  • Context and Importance: The patent's logic for routing calls between different DMA systems hinges on the CLR. Plaintiff's infringement theory maps this term to a "mobile device pool used for the hair-pinning feature" in the accused product Compl. ¶¶116-117 Practitioners may focus on this term because the viability of the infringement case for inter-DMA calls depends on whether this software-based routing feature constitutes a "register" that "stores information" about another DMA system's subscribers.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The patent describes the CLR in functional terms as containing information about subscribers registered with another DMA, which allows a call to be connected '414 Patent, col. 5:11-20 This functional description could support a broader reading that encompasses any data structure achieving this result.
    • Evidence for a Narrower Interpretation: The patent's diagrams and description show the CLR as a distinct data structure within the DMA, separate from the HLR, and corresponding to other DMAs (e.g., CLR2, CLR3) '414 Patent, FIG. 4 A party could argue this structure is distinct from a "device pool" used for a generic "hair-pinning" feature and that the patent requires a more specific implementation.

VI. Other Allegations

  • Indirect Infringement: The complaint alleges both induced and contributory infringement for all asserted patents. Inducement is alleged based on Defendants providing customers with instructional materials, user guides, white papers, and customer support that allegedly encourage and enable the use of the infringing functionalities Compl. ¶¶93-95 Contributory infringement is alleged on the basis that the Accused Products are not staple articles of commerce suitable for substantial non-infringing use and are material components of the infringing systems Compl. ¶¶96-97
  • Willful Infringement: While not pleaded as a separate count, the complaint lays the groundwork for willfulness by alleging Defendants had knowledge of the asserted patents and their infringement. This knowledge is alleged to have arisen no later than the filing of the original complaint in February 2022 and service of Preliminary Infringement Contentions in December 2022 Compl. ¶¶64-65

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

This case appears to center on the applicability of patents, drafted during the transition from hardware-centric to software-defined networks, to modern, fully-virtualized mobile core products. The central questions for the court will likely be:

  • A core issue will be one of definitional scope: Can terms from a prior technological era, such as "mobile switching center module" and "community location register," be construed to cover the 3GPP-compliant, virtualized software functions (e.g., MME, HSS, "hair-pinning" features) of the accused cloud-native architecture?
  • A key evidentiary question will be one of functional mapping: Does the accused Affirmed Mobile Core platform actually perform the specific, multi-step call routing and group calling methods as claimed in the '414 and '763 patents, or is there a fundamental mismatch between the patent's bespoke logic and the standardized operations of the accused products?
  • A significant factor shaping the litigation will be the validity posture of the asserted claims, particularly for the '414 patent, whose asserted claims survived an IPR challenge. This may shift the focus of the dispute more intensely toward the infringement and claim construction issues outlined above.
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