U.S. Southern District Issues Favorable Markman Ruling in Augme v. Gannett and AOL

Marketwired

NEW YORK, NY--(Marketwire -09/04/12)- Augme Technologies, Inc. (AUGT), a technology and services leader in interactive media and mobile marketing, today announced that it has received a favorable Markman ruling from the United States Southern District Court in Augme's patent infringement case against AOL, Inc. and Gannett, Inc.

The Court's August 28, 2012 Markman ruling, which was reviewed by Augme's legal and management teams, is regarded as highly favorable to the Company and established the following claims construction:

The first disputed term was the "first code module associated with said webpage." Judge McMahon held that she was unable to determine what a person with ordinary skill in the art understands the meaning of "associated with said webpage" to mean. Therefore, the Court has directed the parties to submit extrinsic evidence on the meaning of the word phrase "associated with said webpage." The evidence is to be provided in the form of an affidavit of experts, accompanied by a summary memorandum of law. That supplemental briefing is due by October 5, 2012.

The second disputed term construed by the Court was "downloading information content from said second webpage." The Court sided with Augme and found that "information content" refers to types of data other than characters and words. Judge McMahon held that "information content" simply means "data," and that "downloading information content from said webpage" means "downloading the data that is contained on the second webpage."

The third term construed by the Court was "media appliance metaphor" and again the Court sided with Augme by finding that the media appliance metaphor refers to "a software device that exists in the realm of electronic communication, that has a counterpart in the real world, and that looks and acts like its counterpart in the real world."

Markman hearings are important, since the court determines patent infringement cases based upon the interpretation of claims. A Markman hearing may also encourage settlement, since the judge's claim construction finding can indicate a likely outcome for the patent infringement case as a whole.

The case was originally filed in 2011 in the U.S. District Court for the Eastern District of Virginia, seeking damages relating to the alleged infringement of the following patents owned by Augme: U.S. Patent Nos. 7,783,721 ("Method and Code Module For Adding Function to a Webpage") and 7,831,690 ("Appliance Metaphor For Adding Media Function To A Webpage"). On July 26, 2011 the case was moved to the U.S. District Court for the Southern District of New York under Hon. Judge Colleen McMahon.

An additional case that Augme filed against AOL in 2009 is also proceeding in the U.S. Southern District Court of New York. That case involves Augme's United States Patent No. 6,594,691 ("Method and System for Adding Function to a Webpage") and United States Patent No. 7,269,636 ("Method and Code Module for Adding Function to a Webpage") and is being asserted against AOL, Time Warner and Platform-A. The complaint also includes a claim against AOL for trademark infringement, unfair competition and false designation of origin in connection with AOL's use of THE BOOMBOX designation at its portal website, http://www.theboombox.com, which is alleged to be confusingly similar to Augme's registered trademarks BOOMBOX RADIO® and BOOMBOX®.

In both pending cases, Augme is seeking injunctive relief and unspecified damages stemming from the alleged infringing activities.

In addition to the District Court's favorable Markman ruling, the Court of Appeals for the Federal Circuit ("CAFC") issued on August 31, 2012 its long-awaited en banc decision on Akamai Tech. v. Limelight Networks (Fed. Cir. 2012) (En Banc) and Mckesson Tech. v. Epic Systems (Fed. Cir. 2012) (En Banc).

In a 6-5 en banc decision, the Federal Circuit loosened the rules for proving liability under the doctrine of inducing infringement. The court rejected the previous rule that inducement requires proof of a single actor directly infringing the patent. Rather, the court now holds that the underlying direct "infringement" of a process claim can still lead to inducement liability, so long as all of the steps of the method were actually performed.

This decision, which was voted on by the entire 11 members of the CAFC, is considered important because it closes a major loophole that has allowed some entities to knowingly and intentionally take advantage of a patented invention while avoiding the need to acquire a license from the patent holder.

Under the new rule, inducement liability exists where (1) the accused infringer knew of the patent; (2) the accused infringer induced performance of the steps of the method; and (3) those steps were actually performed. It follows also that the accused infringer will also be liable if it performs some of the steps of the method and then actively induces performance of the other steps.

"Both of these important decisions enhance Augme's ability to end its patent enforcement disputes through licensing," said Nathaniel Bradley, Chief Technology Officer of Augme Technologies, Inc. "Our shift in emphasis from litigation to licensing began earlier this year in concert with processes undertaken to protect Augme's IP rights given the size of the opportunity that our IP portfolio represents."

Augme's industry-leading patent portfolio includes 13 issued patents, one notice of allowance, and over 80 pending U.S. and international patents, with over 2,000 claims covering technology, media and telecommunications ('TMT') applications.

"Patent litigation is part of a larger IP strategy that many businesses must pursue in order to establish a successful technology licensing program," stated Paul Arena, Augme's Chief Executive Officer. "Augme is asserting key components of its patent portfolio in several key litigations as a part of a continuing effort to unlock the licensing potential of its portfolio. The positive Markman ruling in the AOL case and other very favorable recent developments will enable Augme to press forward in its licensing program."

In May 2012, Augme announced that it had acquired a family of five (5) issued United States patents, along with seven (7) U.S. applications and eighteen (18) pending international patents, from Geos Communications IP Holdings. These patents cover Voice over Internet Protocol ("VoIP") and other critical mobility inventions. In July 2011, Augme announced its acquisition of the assets of Jagtag, Inc., including a family of three (3) issued United States patents plus nine (9) U.S. applications. The acquired Jagtag patents cover ambient targeting over mobile devices.

About Augme Technologies, Inc.

Augme® Technologies, Inc. (AUGT) provides strategic services and mobile marketing technology to leading consumer and healthcare brands. Selling its products and services under the Hipcricket brand, Augme's platform has provided measurable successes across an industry-leading 200,000 campaigns for its clients, which include many of America's brand-name leaders (e.g., Macy's, Ford, MillerCoors, Nestle, Clear Channel) in a variety of industries, along with their agencies.

Augme's offerings allow marketers, brands, and agencies to plan, create, test, deploy, and track mobile marketing programs across every mobile channel, including SMS, MMS, 2D/QR codes, mobile websites, advertising networks, social media and branded apps. Augme's AD LIFE platform facilitates consumer brand interaction and the ability to track and analyze campaign results. Using its own patented device-detection and proprietary mobile content adaptation software, AD LIFE® solves the mobile marketing industry problem of disparate operating systems, device types, and on-screen mobile content rendering.

Augme also provides business-to-consumer solutions, including national mobile couponing campaigns, strategic mobile healthcare tools, custom mobile application development, and consumer data tracking and analytics. In addition to AD LIFE®, Augme in 2011 acquired the assets of Hipcricket, Inc. and JAGTAG, Inc. and licenses the digital broadcast platform BOOMBOX®. The company's industry-leading patent portfolio now includes 13 issued patents and over 80 patent applications pending in the U.S. and internationally. Augme is headquartered in New York City, with operations in Seattle, Atlanta, Dallas, Los Angeles, San Francisco, Chicago, Miami and Tucson. For more information visit www.augme.com or www.hipcricket.com.

Augme Technologies, Inc.™, Hipcricket®, Augme®, AD LIFE®, BOOMBOX®, AD SERVE® and the Augme logo are trademarks of Augme Technologies, Inc. All rights reserved. 2009-12.

Forward-Looking Statements

This release includes forward-looking statements. All statements regarding our expected future financial position, results of operations, cash flows, financing plans, business strategy, products and services, competitive positions, growth opportunities, plans and objectives of management for future operations, as well as statements that include words such as "anticipate," "if," "believe," "plan," "estimate," "expect," "intend," "may," "could," "should," and other similar expressions are forward-looking statements. All forward-looking statements involve risks, uncertainties and contingencies, many of which are beyond our control, which may cause actual results, performance, or achievements to differ materially from anticipated results, performance, or achievements. Factors that may cause actual results to differ materially from those in the forward-looking statements include those set forth in Augme's Form 10-K for the year ended February 29, 2012 and more recent reports and registration statements filed with the SEC. Augme Technologies, Inc. is under no obligation (and expressly disclaims any such obligation) to update or alter such forward-looking statements, whether as a result of new information, future events or otherwise.

Contact:
For Augme Technologies, Inc.
Investor Relations
Stephanie Prince / Jody Burfening
Lippert/Heilshorn & Associates, Inc.
(212) 838-3777
sprince@lhai.com or ir@augme.com
IP Communications
Bruce Berman
Brody Berman Associates
(212) 683-8125
bberman@brodyberman.com

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