Rondevoo Tech LLC v. VisioPharm Corp

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Rondevoo Technologies, LLC (California)
  • Defendant: Visiopharm Corporation (Virginia)
  • Plaintiff’s Counsel: BUDO LAW, LLP; SAND, SEBOLT & WERNOW CO., LPA
• Case Identification: 1:19-cv-02263, D. Colo., 08/08/2019
• Venue Allegations: Plaintiff alleges venue is proper in the District of Colorado because Defendant maintains a regular and established place of business in the district, making it a resident for patent venue purposes under TC Heartland.
• Core Dispute: Plaintiff alleges that Defendant’s Oncotopix/Biotopix® AI system infringes three patents related to methods and systems for generating special-purpose, user-trained image analysis algorithms.
• Technical Context: The technology concerns computer-aided image analysis, particularly for automating the classification and quantification of features in complex images, such as cellular structures in digital pathology slides.
• Key Procedural History: The complaint does not allege any prior litigation, inter partes review proceedings, or licensing history related to the patents-in-suit. The asserted patents are part of a single family originating from a 2001 provisional application.

Case Timeline

Date	Event
2001-04-25	Priority Date for ’854, ’266, and ’879 Patents
2006-08-08	U.S. Patent No. 7,088,854 Issues
2007-08-07	U.S. Patent No. 7,254,266 Issues
2014-04-01	U.S. Patent No. 8,687,879 Issues
2019-08-08	Complaint Filed

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

U.S. Patent No. 7,088,854 - Method and apparatus for generating special-purpose image analysis algorithms, Issued August 8, 2006

The Invention Explained

• Problem Addressed: The patent describes the difficulty and inconsistency of quantifying entities within complex images, such as in biological samples. It notes that existing computer systems are limited, while manual analysis by experts is time-consuming, subjective, and impractical for large-scale studies (’854 Patent, col. 1:37-50; col. 2:6-14).
• The Patented Solution: The invention proposes a system that generates a reusable, special-purpose "product algorithm" through a user-guided training process. The system begins with an "evolving algorithm" that partitions an image's data points (e.g., pixels) into entities. A user provides "judgment" to refine this algorithm. A refined instance of the algorithm is then stored as a "product algorithm," which can be applied to automatically classify entities in new images without further user input (’854 Patent, Abstract; col. 6:7-24). This process is designed to embed an expert's classification knowledge into a durable software tool (’854 Patent, col. 5:44-54).
• Technical Importance: The technology aimed to standardize and automate expert-level image analysis, allowing for more reproducible and efficient quantitative analysis across different labs and studies (’854 Patent, col. 3:1-12).

Key Claims at a Glance

• The complaint asserts independent Claim 1 (Compl. ¶13).
• Essential elements of Claim 1 include:
  • A computer program product comprising a computer usable medium with program code configured to:
  • obtain at least one image with chromatic data points;
  • generate an evolving algorithm that partitions the data points into at least one entity identified "in accordance with a user's judgment"; and
  • store a first instance of the evolving algorithm as a "product algorithm" that enables automatic classification of entities in a second image.
• The complaint does not explicitly reserve the right to assert dependent claims.

U.S. Patent No. 7,254,266 - Method and apparatus for generating special-purpose image analysis algorithms, Issued August 7, 2007

The Invention Explained

• Problem Addressed: As a divisional of the ’854 Patent, this patent addresses the same fundamental problem of automating the expert quantification of image data (’266 Patent, col. 1:37-50).
• The Patented Solution: This patent claims a specific method for automating image analysis. The focus is on a structured "training mode" where an "evolving algorithm" is created based on "iterative input" from a "first user." This training involves presenting multiple sets of identified entities to the user for feedback and approval. Once trained and stored as a "product algorithm," it is then provided to a "second user" for application on different image data (’266 Patent, Abstract; col. 4:32-51). This patent emphasizes the distinct roles of the expert trainer (first user) and the end-user (second user).
• Technical Importance: The invention provided a framework for capturing expert knowledge in a distributable software tool, allowing non-experts to leverage a validated classification algorithm (’266 Patent, col. 2:1-4).

Key Claims at a Glance

• The complaint asserts independent Claim 1 (Compl. ¶18).
• Essential elements of Claim 1 include:
  • In a computer system, a method comprising:
  • obtaining a product algorithm configured to recognize an entity via a training mode using "iterative input" from a "first user";
  • The training mode includes presenting a first set of entities for feedback, obtaining feedback, executing the evolving algorithm, presenting a second set for feedback, obtaining approval, and storing the algorithm;
  • providing the product algorithm to a "second user" for application against a second set of image data.
• The complaint does not explicitly reserve the right to assert dependent claims.

Multi-Patent Capsule

• Patent Identification: U.S. Patent No. 8,687,879, Method and apparatus for generating special-purpose image analysis algorithms, Issued April 1, 2014.
• Technology Synopsis: This patent, a continuation in the same family, claims a non-transitory computer program product for automating image data quantification. The invention generates a "locked evolving algorithm" through a training mode that, similar to the other patents, uses iterative user feedback on multiple sets of entities to refine and store a product algorithm for subsequent use on new image sets (’879 Patent, Abstract; col. 3:15-48).
• Asserted Claims: Independent Claim 1 (Compl. ¶23).
• Accused Features: The complaint alleges that the Accused System's functionality for generating and using image analysis algorithms embodies the methods claimed in the ’879 Patent (Compl. ¶¶24, 42-50).

III. The Accused Instrumentality

• Product Identification: The accused instrumentality is Defendant's "Oncotopix/Biotopix® AI" system (the "Accused System") (Compl. ¶25).
• Functionality and Market Context:
  • The complaint alleges that the Accused System "enables image analysis based on product algorithms" (Compl. ¶25).
  • The pleading provides minimal detail regarding the specific technical operation of the Accused System. Instead, the complaint alleges in a conclusory manner that the system performs the functions recited in the asserted claims, such as generating an "evolving algorithm" based on user judgment and storing it for later use (Compl. ¶¶27-50). The complaint does not contain specific facts about the architecture or implementation of the accused AI.
  • No probative visual evidence provided in complaint.

IV. Analysis of Infringement Allegations

’854 Patent Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
A computer program product for generating special-purpose image analysis algorithms comprising: a computer usable medium having computer readable program code embodied therein...	The Accused System is alleged to be or utilize a computer program product for this purpose.	¶27-28	col. 5:36-43
obtain at least one image having a plurality of chromatic data points;	The Accused System is allegedly configured with code to obtain an image with chromatic data points.	¶29	col. 7:57-65
generate an evolving algorithm that partitions said plurality of chromatic data points within said at least one image into at least one entity identified in accordance with a user's judgment; and	The Accused System is allegedly configured with code to generate an evolving algorithm that partitions image data into an entity based on user judgment.	¶30	col. 6:7-14
store a first instance of said evolving algorithm as a product algorithm wherein said product algorithm enables the automatic classification of instances of said at least one entity within at least one second image in accordance with said judgment of said user.	The Accused System is allegedly configured with code to store the evolving algorithm as a product algorithm that enables subsequent automatic classification.	¶31	col. 6:15-24

’266 Patent Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
In a computer system, a method for automating the expert quantification of image data using a product algorithm comprising: obtaining a product algorithm for analysis of a first set of image data wherein said product algorithm is configured to recognize at least one entity within said first set of image data via a training mode that utilizes iterative input to an evolving algorithm obtained from at least one first user...	The Accused System allegedly uses a method of obtaining a product algorithm via a training mode with iterative input from a user.	¶33-34	col. 14:43-51
presenting a first set of said at least one entity to said user for feedback as to the accuracy of said first set of identified entities;	The Accused System allegedly performs the training mode step of presenting a first set of entities to the user for feedback.	¶35	col. 14:15-22
obtaining said feedback from said user;	The Accused System allegedly performs the training mode step of obtaining feedback from the user.	¶36	col. 14:52-57
executing said evolving algorithm using said feedback;	The Accused System allegedly performs the training mode step of executing the evolving algorithm using the obtained feedback.	¶37	col. 10:35-40
presenting a second set of said at least one entity to said user for feedback...obtaining approval from said user...storing said evolving algorithm as a product algorithm;	The Accused System allegedly performs the subsequent training mode steps of presenting a second set, obtaining approval, and storing the algorithm.	¶38-39	col. 10:35-55
providing said product algorithm to at least one second user so that said at least one second user can apply said product algorithm against a second set of image data...	The Accused System allegedly performs the step of providing the stored product algorithm to a second user for application.	¶40	col. 4:47-51

• Identified Points of Contention:
  • Technical Questions: The complaint lacks factual allegations explaining how the Accused System's "AI" functions as the claimed "evolving algorithm." A central question will be whether the accused AI model is actually modified or refined based on a single user's judgment, or if it is a static, pre-trained model that is merely applied to images. The claims appear to describe a dynamic training process, which may be technically distinct from the application of a pre-trained neural network.
  • Scope Questions: The meaning of "user's judgment" ('854 Patent) and "iterative input" ('266 Patent) will be critical. The court will need to determine what specific user actions within the Accused System satisfy these limitations. For example, does a simple confirmation of a result constitute "judgment," or does the patent require a more active role in defining classification criteria, as detailed in the specification (e.g., '854 Patent, Fig. 9)?

V. Key Claim Terms for Construction

• The Term: "evolving algorithm" (asserted in claims of '854, '266, and '879 Patents)

• Context and Importance: This term is the technological core of the asserted claims. Its construction will likely determine whether modern AI/machine learning systems, which are often trained on large datasets before deployment, fall within the scope of patents from 2001. Practitioners may focus on this term because the Defendant will likely argue that its AI system does not "evolve" in the manner described by the patents, but is instead a pre-trained, static, model.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The specification states the system may utilize various algorithms, including a "neural network" (’854 Patent, col. 6:9-12), which could support an argument that the term is meant to be technologically inclusive.
  • Evidence for a Narrower Interpretation: The specification repeatedly describes the algorithm's evolution as a direct result of "input from the user to refine its model" and notes that "user input during the evaluation can modify the evolving product algorithm" (’854 Patent, col. 6:19-24). The claims themselves tie the algorithm to "user's judgment" and "iterative input," suggesting a dynamic, user-specific modification process rather than a pre-trained, generally applicable one.

• The Term: "providing said product algorithm to at least one second user" ('266 Patent, Claim 1)

• Context and Importance: This limitation distinguishes the "first user" (the expert trainer) from the "second user" (the end-user). Its construction is important for determining the act of infringement. The dispute may turn on whether "providing" requires an affirmative transfer of a software file or if making an algorithm accessible on a server or cloud platform for others to use is sufficient.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The patent's description of a client-server environment and processing over the "Internet" suggests a broad, networked concept of making the tool available, not just physically transferring it (’266 Patent, Fig. 10; col. 30:40-67).
  • Evidence for a Narrower Interpretation: A defendant could argue the claim implies a more discrete act of "providing" the finalized algorithm after the training by the "first user" is complete, potentially creating a temporal or functional separation not present in an integrated cloud service.

VI. Other Allegations

• Willful Infringement: The complaint alleges that Defendant had knowledge of its infringement "at least as of the service of the present Complaint" (Compl. ¶53). This allegation forms the basis for a claim of post-filing willful infringement. The complaint does not allege any facts supporting pre-suit knowledge of the patents or the alleged infringement. The prayer for relief requests enhanced damages pursuant to 35 U.S.C. §285 (Compl. p. 13, ¶f).

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

• A core issue will be one of technical operation: Does the accused "Oncotopix/Biotopix® AI" system employ an algorithm that dynamically "evolves" based on iterative feedback from an individual end-user, as recited in the claims? Or, does it apply a static, pre-trained model, raising a fundamental question of whether modern machine-learning architectures fall within the scope of the asserted patents from the early 2000s?
• A related key question will be one of definitional scope: How will the court construe the term "evolving algorithm"? Will it be interpreted broadly to cover any learning-based system, or will the patent's specification, which details a specific, user-driven refinement process, limit the term to systems that are actively modified by the end-user in a "training mode"?
• An evidentiary challenge for the plaintiff will be to demonstrate, with specific facts beyond the complaint's conclusory allegations, how the accused AI system meets each step of the claimed training and deployment methods, particularly the distinction between the "first user" who trains the algorithm and the "second user" who applies it as claimed in the ’266 Patent.