Context: In December 2018, Fintiv sued Apple in the Western District of Texas, alleging that several of its products (the iPhone, iPad, Apple Watch and Mac) infringed three of its payment-system patents through the use of Apple Pay and Apple Wallet. In June 2023, Judge Alan D. Albright granted Apple’s motion for summary judgment of non-infringement, ruling that Fintiv had failed to provide evidence that the defendant’s products contain a “widget” as required by the patent claims. In parallel Patent Trial and Appeal Board (PTAB) proceedings, one of Fintiv’s patents, challenged by Apple, was found invalid in November 2023. Fintiv filed appeals in both proceedings. Last month, the Federal Circuit threw out the PTAB appeal “as moot” after invalidating the claims in a parallel PayPal dispute (May 1, 2025 ip fray article).
What’s new: In a significant turn of events, the Federal Circuit has reversed Judge Albright’s non-infringement ruling, reviving Fintiv’s infringement claims and remanding them for trial (May 16, 2025 opinion (PDF)). The Federal Circuit held that Apple’s arguments were “unpersuasive” and that the Western District of Texas’s decision ignored evidence put forward by Fintiv that Apple’s allegedly infringing Apple Wallet software products contain a “widget”.
Direct impact: The Federal Circuit’s decision is no doubt a major setback for Apple and will be one to follow closely now that it has been remanded for further proceedings. While two of the initially enforced patents have now been invalidated, the case will move forward with U.S. Patent No. 8,843,125 (“System and method for managing mobile wallet and its related credentials”), which Fintiv’s lead trial counsel Marc E. Kasowitz has said he “looks forward to”.
Wider ramifications: While the Federal Circuit sided with Fintiv in this particular ruling, it noted towards the end that the “real issue” in this case is whether the alleged widget identified by Fintiv can satisfy related claim limitations (for example, a limitation requiring the widget to correspond to the contactless card applet). This was not included in the decision to reverse summary judgment, however, as those issues were not briefed to the Federal Circuit.
Initially, the three patents-in-suit also included:
- U.S. Patent No. 10,223,692 (“Method for setting temporary payment card and mobile device applying the same”)
- U.S. Patent No. 9,189,785 (“Debit network routing selection using a scannable code”)
However, in two separate decisions issued by the PTAB, those latter patents were invalidated in December 2023 and January 2024, respectively, knocking them out of Fintiv’s infringement suit.
In its motion for summary judgment of non-infringement, one of Apple’s grounds was the non-infringement of the “widget” limitation, which was central to Fintiv’s U.S. Patent No. 8,843,125 infringement claims. In his decision in June 2023, Judge Albright construed “widget” as “software that is either an application or works with an application, and which may have a user interface.” Neither Apple nor Fintiv challenged this construction.
However, the Judge found that Fintiv “failed to identify the claimed widget in the accused products” as construed:
“To survive summary judgment, Fintiv was only required to present evidence that created a legitimate inference of the existence of a widget.”
But in its decision on Friday, the Federal Circuit found the district court “faulted” Fintiv for failing to identify software that constitutes the accused widget. The court adopted a “broad” construction of “widget”, and this does not require the claimed widget to possess any particular functional attributes, nor does it specify what the widget must do in relation to other claim limitations, it wrote, adding:
“Under this broad construction, Fintiv proffered sufficient evidence to create a genuine issue of material fact that a widget exists in the accused products.”
Marc E. Kasowitz, Fintiv’s lead trial counsel, said he is “extremely pleased with the Federal Circuit’s decision”, and he and Fintiv are “looking forward to the trial in this case.”
Parallel PTAB proceedings
This case partly came about following the introduction of the NHK-Fintiv framework, first invoked in March 2020 and recently reinstated by Acting Director of the United States Patent & Trademark Office (USPTO), Coke Morgan Stewart (April 17, 2025 ip fray article). The rule allows the PTAB to deny inter partes reviews (IPRs) if parallel district court litigation is ongoing. A string of litigation has since followed, chiefly brought by large tech companies. Apple, Google and several other tech giants challenged the framework again in August 2024 (after failing to successfully do so a year prior), arguing that it shields low-quality patents from scrutiny and increases litigation risks for tech firms (PDF). That case is now on appeal for the second time in the Federal Circuit.
Counsel
Alongside Mr. Kasowitz of Kasowitz Benson Torres LLP (which also represents Intellectual Ventures in a dispute against Tesla: April 15, 2024 ip fray article), Fintiv is being represented by Jeceaca An, Marcus A. Barber, John W. Downing, Darcy L. Jones, Heather S. Kim, ThucMinh Nguyen, Jonathan K. Waldrop, and Paul G. Williams. The company is also being represented by AddyHart P.C.’s Meredith Martin Addy, Chad Pannell, III, and Caren Yusem Sterne.
Meanwhile, Apple is being represented by Orrick, Herrington & Sutcliffe LLP’s Mel Bostwick, Abigail Colella, Alexandra Bursak, as well as a duo at DLA Piper LLP: Jessica Hannah and Stan Panikowski.