Fintiv, Inc. v. Apple Inc.

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FINTIV, INC.,
Plaintiff-Appellant
v.
APPLE INC.,
Defendant-Appellee
______________________
2023-2208
______________________
Appeal from the United States District Court for the
Western District of Texas in No. 1:21-cv-00896-ADA, Judge
Alan D. Albright.
______________________
Decided: May 16, 2025
______________________
MEREDITH L EIGH MARTIN ADDY , AddyHart P.C., At-
lanta, GA, argued for plaintiff-appellant. Also represented
by CHARLES A. P ANNELL , III; CAREN YUSEM , Washington,
DC; MARCUS BARBER , J OHN D OWNING, D ARCY L. J ONES ,
HEATHER K IM , T HUCMINH N GUYEN, J ONATHAN K.
WALDROP , Kasowitz Benson Torres LLP, Redwood Shores,
CA; P AUL G UNTER WILLIAMS , Atlanta, GA.
MELANIE L. BOSTWICK, Orrick, Herrington & Sutcliffe
LLP, Washington, DC, argued for defendant-appellee. Also
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FINTIV, INC. v. APPLE INC. 2
represented by ABIGAIL COLELLA; ALEXANDRA BURSAK,
New York, NY; J ESSICA HANNAH , DLA Piper LLP, San
Francisco, CA; STANLEY J OSEPH P ANIKOWSKI, III, San Di-
ego, CA.
______________________
Before D YK, CHEN, and STARK, Circuit Judges.
CHEN, Circuit Judge.
In December 2018, Fintiv, Inc. (Fintiv) sued Apple Inc.
(Apple) for infringement of certain claims of U.S. Patent
No. 8,843,125 (’125 patent). After construing the claim
term “widget” and at first denying Apple’s motion for sum-
mary judgment, the United States District Court for the
Western District of Texas changed course and granted
summary judgment of noninfringement in favor of Apple.
Fintiv, Inc. v. Apple Inc., No. 21-CV-896, 2023 WL 4237356
(W.D. Tex. June 21, 2023) (Order). Fintiv appeals. For the
reasons explained below, we reverse.
BACKGROUND
I.
The ’125 patent is titled “System and Method for Man-
aging Mobile Wallet and Its Related Credentials.” The pa-
tent relates to virtual wallets stored on mobile devices—in
other words, a “mobile wallet application” capable of stor-
ing “virtual cards” that can be used to “replace conven-
tional physical wallets.” ’125 patent col. 1 ll. 25–46. The
mobile device may also store “user financial credentials,
such as credit card numbers,” which can be used for “con-
tactless payment” using Near Field Communication tech-
nology. Id. col. 1 ll. 47–62.
The patent teaches a mobile wallet management sys-
tem that, among other components, includes a wallet client
management component and a widget management com-
ponent. Id. col. 4 ll. 52–56. The wallet client management
component “is responsible for the wallet application itself
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FINTIV, INC. v. APPLE INC. 3
(referred [to] as the container), which may house the indi-
vidual widgets (e.g., applications stored at the application
level related to a financial institution, transportation ac-
count, and the like).” Id. col. 4 ll. 57–61. The widget man-
agement component “on the other hand is responsible for
the individual widgets stored within the wallet container.”
Id. col. 5 ll. 4–6. The patent explains that “[w]idgets may
be an application configured to interface with a user of the
mobile device,” such as “individual payment applications,
transportation applications, and other related applica-
tions.” Id. col. 5 ll. 6–9.
Once a mobile wallet application is installed on the mo-
bile device, the user can “provision . . . specific contactless
card applets” and “corresponding widget applications and
[wallet management applets (WMA)] onto [the] mobile de-
vice.” Id. col. 8 ll. 18–22. “The corresponding widget may
reside in the mobile wallet application, at the application
level, to provide an interface to the user.” Id. col. 8 ll. 63–
65 (figure reference number omitted). And the correspond-
ing WMA, “which may include account specific information
of the contactless card apple[t] (e.g. credit card number, ex-
piration date, security code, PIN, etc.), may be provisioned
into” a secure element of the device. Id. col. 8 l. 66 – col. 9
l. 2. Thus, “[b]y installing both the WMA applet and the
widget, the user may view and manage the information
stored in the WMA applet through the corresponding
widget.” Id. col. 9 ll. 2–5 (figure reference numbers omit-
ted).
Fintiv asserted infringement of independent claims 11,
18, and 23 and dependent claims 13–14, 20, and 24–25 (col-
lectively, asserted claims) of the ’125 patent against Apple.
Independent claim 11 recites a method for provisioning a
contactless card applet in a mobile device comprising,
among other steps, “retrieving a widget and a wallet man-
agement applet (WMA) corresponding to the contactless
card applet” and “provisioning the selected contactless card
applet, the widget, and the WMA.” Independent claim 18
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FINTIV, INC. v. APPLE INC. 4
recites a wallet management system comprising, among
other things, “a widget management component configured
to store and to manage widgets” and “a rule engine config-
ured to filter a widget based on the mobile device infor-
mation.” Independent claim 23 recites a mobile device
comprising, among other things, “a mobile wallet applica-
tion configured to store a widget corresponding to a con-
tactless card applet” and “an over-the-air (OTA) proxy
configured to provision the contactless card applet, a
widget corresponding to the contactless card applet, and
the WMA.”
II.
Fintiv accused multiple Apple devices—the iPhone,
iPad, Apple Watch, and Mac—of infringing through their
use of Apple Pay and Apple Wallet. Apple Pay allows con-
sumers to make electronic payments, including, for exam-
ple, through the Apple Wallet application. A user may
provide their payment card information to add the card to
the Apple Wallet application. The user may then select a
card from Apple Wallet to make a payment through Apple
Pay or view certain information about the card.
Central to the district court’s grant of summary judg-
ment and this appeal is the court’s construction of “widget.”
The district court construed “widget” as “plain-and-ordi-
nary meaning and where the plain-and-ordinary meaning
is ‘software that is either an application or works with an
application, and which may have a user interface.’” J.A.
66–67. Neither party takes issue with that construction.
Apple moved for summary judgment of noninfringe-
ment on four independent grounds, one of which was non-
infringement of the “widget” limitation and “‘widget’-
related limitations” (i.e., the claimed actions performed on
a widget and the components configured to act on a
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FINTIV, INC. v. APPLE INC. 5
widget).1 Order, 2023 WL 4237356, at *2–3. The district
court initially denied the motion without any reasoning.
Almost two years later, and just one month prior to the
scheduled trial, Apple requested to reargue its motion.
Upon reargument, the district court granted the motion for
summary judgment.
In granting the motion, the court reasoned that Fintiv
and its expert witness, Dr. Michael Shamos, “failed to iden-
tify the claimed widget in the accused products.” Id. at *3.
The court reviewed Fintiv’s “source code and non-source
code” evidence, including Dr. Shamos’s testimony, but
found it insufficient to identify a “widget,” as construed. Id.
at *4. In short, the court reasoned that “nowhere does Fin-
tiv’s opposition state that ‘the “widget” in the accused prod-
uct is X,’ where X is an identifiable piece of software, as
required by the [c]ourt’s construction.” Id. The court did
not address the widget-related limitations or Apple’s re-
maining grounds for summary judgment of noninfringe-
ment. See id. at *3, *5.
The district court entered final judgment accordingly.
We have jurisdiction under 28 U.S.C. § 1295(a)(1).
1 Apple also moved for summary judgment on the
grounds that (1) foreign users do not “use” the accused sys-
tem “within the United States” and thus do not infringe
under 35 U.S.C. § 271(a), (2) the accused iPads and Macs
do not meet the court’s construction of the “contactless card
applet” limitation of claims 11 and 23 and their dependent
claims, and (3) the pairing of the accused iPhone and Apple
Watch does not satisfy the court’s construction of the claim
term “mobile device.” J.A. 15160. The district court did not
address these alternative grounds, see Order, 2023 WL
4237356, at *2, and we thus need not consider them on ap-
peal.
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FINTIV, INC. v. APPLE INC. 6
STANDARD OF REVIEW
“We review the grant of summary judgment of non-in-
fringement under the law of the relevant regional circuit.”
Clare v. Chrysler Grp. LLC, 819 F.3d 1323, 1326 (Fed. Cir.
2016). “Applying Fifth Circuit law, we review the district
court’s decision to grant summary judgment de novo, ap-
plying the same standard as the district court.” Absolute
Software, Inc. v. Stealth Signal, Inc., 659 F.3d 1121, 1129
(Fed. Cir. 2011) (citing United States v. Caremark, Inc., 634
F.3d 808, 814 (5th Cir. 2011)). “Summary judgment is ap-
propriate if, in viewing the evidence in a light most favora-
ble to the non-moving party, the court finds that ‘there is
no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.’” Id. (quoting
Fed. R. Civ. P. 56(a)).
Infringement is a question of fact. Id. at 1129–30. “On
appeal from a grant of summary judgment of non-infringe-
ment, we determine whether, after resolving reasonable
factual inferences in favor of the patentee, the district court
correctly concluded that no reasonable jury could find in-
fringement.” Id. at 1130.
D ISCUSSION
This appeal concerns a single limitation: the “widget”
limitation. None of the claims comprise simply “a widget.”
In the case of the method claims, the claims require certain
actions performed on a widget (“retrieving” and “provision-
ing”). See, e.g., ’125 patent at claim 11. And in the case of
the system and device claims, the claims require certain
elements “configured to” act on a widget. See, e.g., ’125 pa-
tent at claim 23 (“a mobile wallet application configured to
store a widget”). But Fintiv’s theory of infringement for all
the asserted claims alike requires proving the presence of
a widget. See, e.g., Appellant’s Opening Br. 35 (“[T]o sur-
vive summary judgment, Fintiv was only required to pre-
sent evidence that created a legitimate inference of the
existence of a widget . . . .”); Appellant’s Reply Br. 1
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FINTIV, INC. v. APPLE INC. 7
(“Fintiv has never argued that it did not have to present
evidence of widget software.”).
Fintiv first argues that the district court erroneously
demanded Fintiv present source code evidence of a widget.
We disagree with Fintiv’s characterization of the district
court’s decision. True, the district court reasoned in part
that Fintiv failed to identify source code comprising a
widget. See Order, 2023 WL 4237356, at *3–4, *3 n.1. But
the court ultimately concluded that Fintiv didn’t proffer
source code or non-source code evidence to rebut Apple’s
motion. See id. at *4 (rejecting Fintiv’s “conten[tion] that
it has proffered sufficient evidence (source code and non-
source code) to defeat Apple’s motion” (emphasis added)).
The district court faulted Fintiv for “fail[ing] to identify
software that constitutes the accused ‘widget,’” not only for
failing to present source code evidence of software. Id. (em-
phasis added).
We agree with Fintiv, however, that the district court
erroneously granted summary judgment of noninfringe-
ment. The district court adopted a broad construction of
“widget,” defining it as “software that is either an applica-
tion or works with an application, and which may have a
user interface.” J.A. 66–67. This construction does not re-
quire the claimed widget to possess any particular func-
tional attributes, nor does it specify what the widget must
do in relation to other claim limitations. Neither party
challenges that construction. Under this broad construc-
tion, Fintiv proffered sufficient evidence to create a genu-
ine issue of material fact that a widget exists in the accused
products.2
2 Although it is not disputed on appeal, the district
court’s construction appears unduly broad without specify-
ing that the widget perform any particular functionality
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FINTIV, INC. v. APPLE INC. 8
As an initial matter, there is no genuine dispute that
Fintiv and Dr. Shamos failed to identify specific source
code as the claimed widget. Dr. Shamos conceded during
his deposition that none of the source code he cited makes
up the widget. See Order, 2023 WL 4237356, at *3; J.A.
15244–46. Indeed, both Fintiv and Dr. Shamos admit that
Dr. Shamos’s report cited source code modules “to identify
code for ‘retrieving’ the widget or performing other actions
on widgets—not the code for the widget itself.” Appellant’s
Br. 44; see J.A. 18983.3
Still, “[a] patentee may prove infringement by ‘any
method of analysis that is probative of the fact of infringe-
ment,’ and circumstantial evidence may be sufficient.”
Martek Bioscis. Corp. v. Nutrinova, Inc., 579 F.3d 1363,
1372 (Fed. Cir. 2009) (citations omitted). Fintiv points to
the testimony of Dr. Shamos related to observed function-
ality in the accused products as circumstantial evidence of
a widget.
The ’125 patent describes the widget as allowing a user
to interact with information corresponding to a virtual
beyond that the “software . . . may have a user interface.”
J.A. 67. However, Fintiv appears to agree that its theory
of infringement requires identifying a widget in the ac-
cused products that allows for the user to interact with
credit card information. See ’125 patent col. 8 l. 60 – col. 9
l. 5; Oral Arg. at 2:14–3:29, available at https://oralargu-
ments.cafc.uscourts.gov/default.aspx?fl=23-2208_0306202
5.mp3.
3 At oral argument, the parties agreed to waive con-
fidentiality for all material redacted “in the briefing,” save
for source code file names. Oral Arg. at 0:20–1:40. This
waiver did not clearly extend to material marked confiden-
tial in the joint appendix. Nonetheless, we discuss herein
material from the appendix that is revealed by the parties’
briefs.
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FINTIV, INC. v. APPLE INC. 9
credit card. See ’125 patent col. 8 l. 60 – col. 9 l. 5. Con-
sistent with that disclosure, Dr. Shamos testified in his re-
port that “[t]he software (the ‘widget’) allows a user to, for
example, view the card’s details or perform transactions.”
J.A. 18767. Dr. Shamos explained:
For instance, the widget (providing a user in-
terface) is also provisioned (made available for
use), as reflected in the screenshots below. Each
screenshot below (showing the virtual card image
for the Visa card) presents a software (with a user
interface) that is made available to the user for se-
lecting, via its user interface, among the available
ones to, for example, view the card’s details or per-
form transactions.
Id. at 18790–91; see also, e.g., id. at 18794–95. Dr. Shamos
elaborated during his deposition. For example, he ex-
plained, “I can select [the card art] . . . as a payment instru-
ment[,] or I can select it and view its details[,] or I can select
it and I can delete it,” and “the interactivity that occurs be-
tween the user and that card information is performed by
a widget.” J.A. 18961; see also id. (“[T]he widget is software
that enables you to do things with the card.”). He further
testified that “the underlying code exists that retrieves the
credentials associated with that card,” id. at 18966, and
“the widget is the code that’s sitting behind . . . the card art
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FINTIV, INC. v. APPLE INC. 10
that is activated when I touch it,” J.A. 15247. See also, e.g.,
J.A. 18960–61, 18963–64 (Dr. Shamos further testifying
regarding the widget limitation).
The district court faulted Fintiv and Dr. Shamos for
not “identify[ing] specifically what in [Dr. Shamos’s]
screenshots is the claimed ‘widget.’” Order, 2023 WL
4237356, at *4 (emphasis added). But the widget software
does not necessarily need to be a discrete element visible
“in” the user operation screenshots. Dr. Shamos identified
the alleged widget as the “software (with a user interface)
that is made available to the user for selecting, via its user
interface,” one of the available cards to, “for example, view
the card’s details or perform transactions.” J.A. 18790. In
other words, the software underlying the observed user in-
terface and functionality that allows a user to interact with
the virtual cards in the Apple Wallet application to make
payments and view the cards’ details.
Further, consistent with Dr. Shamos’s opinion that
software underlies the observed functions is testimony of
an Apple witness, Mr. Tackin. When asked about what Ap-
ple refers to as “passes” in the context of Apple Pay,
Mr. Tackin testified that a “pass” could be understood as “a
[user interface] and software presentation on the applica-
tion processor that relates to the card that was installed.”
J.A. 19378 (emphasis added); see also id. at 19380 (testify-
ing that the “card art could be . . . considered as part of the
pass”). Like Dr. Shamos, Apple’s own witness testified that
software underlies the card art and user interface presen-
tation.4
4 As explained above, Dr. Shamos conceded that the
specific source code files he cited in his report were to iden-
tify code for performing certain actions on widgets, not code
for a widget itself. Fintiv contends that the district court
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FINTIV, INC. v. APPLE INC. 11
Although Dr. Shamos did not identify the precise
source code that makes up the alleged widget, drawing rea-
sonable inferences in favor of Fintiv, the non-moving party,
Fintiv’s evidence is sufficient for a reasonable jury to find
that software provides the functionality Dr. Shamos ob-
served and identified in the accused products. See Absolute
Software, 659 F.3d at 1133; see, e.g., Packet Intel. LLC v.
NetScout Sys., Inc., 965 F.3d 1299, 1306 (Fed. Cir. 2020)
(finding of infringement supported by expert’s testimony
describing operation of the accused products); Vita-Mix
Corp. v. Basic Holding, Inc., 581 F.3d 1317, 1326 (Fed. Cir.
2009) (vacating summary judgment because circumstan-
tial evidence created a genuine issue of fact regarding in-
fringement). That a plaintiff seeks to prove infringement
of computer-implemented technology by evidence other
than source code does not mean that infringing source code
does not exist. See Chewy, Inc. v. Int’l Bus. Machs. Corp.,
94 F.4th 1354, 1363–64 (Fed. Cir. 2024) (citing Amdocs (Is-
rael) Ltd. v. Openet Telecom, Inc., 761 F.3d 1329, 1343 (Fed.
Cir. 2014)). For its part, Apple speculates that “mere data,”
rather than software, could underlie the functions observed
by Dr. Shamos. Appellee’s Br. 64. But Apple cites no com-
peting testimony or product documentation to support that
view. Cf. Finjan LLC v. SonicWall, Inc., 84 F.4th 963, 971,
973 (Fed. Cir. 2023) (affirming summary judgment of non-
infringement where defendant submitted evidence that its
accused products operate in a manner differently than as
required by the construction of a claim term).
* * *
improperly relied on Dr. Shamos’s concessions to find that
“passes are not the widget.” Order, 2023 WL 4237356, at
*4. We agree with Fintiv to the extent that the district
court meant that “passes” more generally—beyond the spe-
cific files cited by Dr. Shamos—could not be the widget or
evidence of a widget.
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FINTIV, INC. v. APPLE INC. 12
The district court granted summary judgment because
Fintiv “has no evidence of a ‘widget’ in the accused prod-
ucts; that is, the accused products contain no ‘software that
is either an application or works with an application, and
which may have a user interface.’” Order, 2023 WL
4237356, at *3. Beyond the apparent implausibility that
the accused products contain no software,5 Fintiv has suf-
ficiently identified and proffered circumstantial evidence of
a widget, as we have explained above.
The real issue, it appears to us, is whether the alleged
widget as identified by Fintiv can satisfy related claim lim-
itations. For example, the limitation requiring the widget
to “correspond[] to the contactless card applet,” ’125 patent
at claims 11, 23, or the steps requiring the widget to be “re-
triev[ed]” and “provision[ed],” id. at claim 11. At oral argu-
ment, Apple repeatedly argued that these limitations could
not be satisfied. See Oral Arg. at 21:28–54, 22:19–23:19,
24:01–12, 27:53–28:43. But the district court did not grant
summary judgment based on those related claim limita-
tions and that issue was not briefed to us on appeal. Ac-
cordingly, we remand for the district court to address
whether summary judgment of noninfringement is war-
ranted as to those limitations or on the remaining grounds
asserted by Apple, which the district court did not reach.
See Order, 2023 WL 4237356, at *2.
CONCLUSION
We have considered Apple’s remaining arguments and
find them unpersuasive. For the reasons stated above, we
reverse the district court’s grant of summary judgment and
remand for further proceedings consistent with this opin-
ion.
5 Counsel for Apple seemed to agree. See Oral Arg.
at 22:28–23:22.
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FINTIV, INC. v. APPLE INC. 13
REVERSED AND REMANDED
COSTS
Costs to Fintiv.
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