DCT
1:17-cv-01317
Lexos Media IP LLC v. Jos A Bank Clothiers Inc
Key Events
Complaint
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Lexos Media IP, LLC (Plano, TX)
- Defendant: Jos. A. Bank Clothiers, Inc. (Wilmington, DE)
- Plaintiff’s Counsel: Stamoulis & Weinblatt LLC
- Case Identification: 1:17-cv-01317, D. Del., 09/15/2017
- Venue Allegations: Venue is alleged to be proper in the District of Delaware because the Defendant is a Delaware corporation with an established place of business in Wilmington, Delaware.
- Core Dispute: Plaintiff alleges that Defendant’s e-commerce website server system, which provides a product image zoom feature, infringes two patents related to dynamically modifying a user's cursor image based on content transmitted from a server.
- Technical Context: The technology at issue addresses methods for making online content and advertising more interactive and engaging by altering the appearance of the computer cursor, an element of constant user focus.
- Key Procedural History: The complaint alleges that Plaintiff’s licensing agent notified Defendant of the patents-in-suit on June 27, 2017, approximately three months prior to filing the lawsuit. Subsequent to the complaint's filing, both patents-in-suit were the subject of Inter Partes Review (IPR) proceedings. The IPR for the ’449 Patent resulted in the cancellation of several claims, including claim 27, the only claim from that patent explicitly asserted in the complaint. The IPR for the ’102 Patent resulted in the cancellation of claim 73, while other claims survived.
Case Timeline
| Date | Event |
|---|---|
| 1997-06-25 | Priority Date for ’102 and ’449 Patents |
| 1999-11-30 | U.S. Patent No. 5,995,102 Issued |
| 2000-09-12 | U.S. Patent No. 6,118,449 Issued |
| 2017-06-27 | Pre-suit notification letter sent to Defendant |
| 2017-09-15 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 5,995,102 - Server System and Method for Modifying a Cursor Image, issued November 30, 1999 (’102 Patent)
The Invention Explained
- Problem Addressed: The patent’s background section describes conventional online advertising methods, such as banner ads and frames, as being passive, unintrusive, and easily ignored or removed by users, thus rendering them ineffective. (’102 Patent, col. 1:26-54).
- The Patented Solution: The invention proposes a client-server system that leverages the user’s constant focus on the cursor. The server transmits instructions to the user's terminal that cause the standard cursor to change its appearance to a specific, content-related image, thereby creating a more engaging and less easily ignored form of advertising or interactive content. (’102 Patent, Abstract; Fig. 2).
- Technical Importance: This method provided a novel way to deliver "on-screen advertising" that was aesthetically appealing and afforded advertisers "a great degree of unintrusive exposure" compared to interruptive pop-up windows. (’102 Patent, col. 2:46-54).
Key Claims at a Glance
- The complaint does not specify which claims of the ’102 Patent are asserted, but independent claim 1 is representative of the core invention.
- The essential elements of independent claim 1 include:
- A server system comprising: "cursor image data" corresponding to a specific image; "cursor display code" operable to modify the cursor image; and a "first server computer".
- The server computer transmits "specified content information" to a remote user terminal, which includes a "cursor display instruction" indicating the location of the cursor image data.
- The cursor display code processes the instruction to modify the cursor image into a "specific image" that includes content corresponding to other "information to be displayed" on the user's terminal.
- The modification is "responsive to displaying of said at least a portion of said information" on the user's display.
- The complaint does not explicitly reserve the right to assert dependent claims, but the prayer for relief is broad.
U.S. Patent No. 6,118,449 - Server System and Method for Modifying a Cursor Image, issued September 12, 2000 (’449 Patent)
The Invention Explained
- Problem Addressed: Similar to its parent '102 Patent, the '449 Patent addresses the ineffectiveness of passive online advertising methods like banner ads that users can easily disregard. (’449 Patent, col. 1:11-2:35).
- The Patented Solution: The patent describes a nearly identical client-server system for modifying a cursor's appearance. However, the claims of the ’449 Patent introduce variations, including tying the cursor modification to specific user actions, such as movement over a particular area of the display. (’449 Patent, Abstract; col. 13:45-51).
- Technical Importance: By linking the cursor change to a direct user action like movement, the technology enabled a more interactive and responsive experience, moving beyond a static change upon page load. (’449 Patent, col. 13:35-44).
Key Claims at a Glance
- The complaint asserts at least independent claim 27. It should be noted that claim 27 was subsequently cancelled during an Inter Partes Review proceeding that concluded after the complaint was filed.
- The essential elements of independent claim 27 include:
- A server system with "cursor image data", "cursor display code", and a "first server computer" that transmits "specified content information" to a user terminal.
- The "specific image" corresponds to other "information to be displayed" on the user's terminal.
- The modification of the cursor image is "responsive to movement of said cursor image over a specified location on said display" of the user's terminal.
- The complaint does not explicitly reserve the right to assert dependent claims.
III. The Accused Instrumentality
- Product Identification: The accused instrumentality is Defendant's server system, which includes web servers accessible via the Internet that host the www.josbank.com website. (Compl. ¶¶ 13, 17).
- Functionality and Market Context: The complaint alleges that when a user accesses a product page, Defendant's server transmits HTML, JavaScript, and other content to the user's computer. (Compl. ¶13). The accused functionality is triggered when a user moves the cursor over a specific area of a product image, which "caus[es] a box to appear that reveals the true color of a zoom-able image." (Compl. p. 4). A screenshot on the Exemplary Page shows the standard arrow cursor transforming into a zoom box over a product image. (Compl. p. 3). This feature allows potential customers to inspect product details online. The complaint provides source code snippets as evidence of the underlying HTML and image URLs that enable this feature. (Compl. p. 5).
IV. Analysis of Infringement Allegations
’102 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| a first server computer for transmitting specified content information to said remote user terminal... | Defendant's web servers transmit HTML, JavaScript, and other content associated with the product page to an end user's computer. | ¶13 | col. 6:50-58 |
| said specified content information including...cursor image data corresponding to said specific image; [and] cursor display code... | The transmitted content allegedly includes graphical data (e.g., JPEG, PNG) for the specific image and HTML/JavaScript code that constitutes the cursor display code for modifying the cursor. | p. 4-5 | col. 8:5-18, 49-60 |
| said specific image including content corresponding to at least a portion of said information to be displayed on said display of said user's terminal... | The modified cursor image (the zoom box) displays a magnified view of the product shown on the page and corresponds to the product description and thumbnail images. A visual in the complaint identifies this "Corresponding information." | p. 8 | col. 17:50-65 |
| wherein said cursor display code is operable to...modify said cursor image...in the shape and appearance of said specific image responsive to displaying of said at least a portion of said information... | The complaint alleges the cursor image is modified to display the zoom box. The complaint does not specify how the modification is responsive to the display of information, instead describing the trigger as cursor movement. | p. 4 | col. 18:56-65 |
’449 Patent Infringement Allegations
| Claim Element (from Independent Claim 27) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| a first server computer for transmitting specified content information to said remote user terminal...responsive to a request from said user terminal... | Defendant's web servers transmit the product page content to a user's computer in response to the user accessing the URL. | p. 14 | col. 6:55-61 |
| said specified content information further comprises information to be displayed...said specific image including content corresponding to at least a portion of said information... | The transmitted content includes product images, thumbnails, and descriptions. The specific image (the zoom box) corresponds to this displayed product information. | p. 15 | col. 19:1-10 |
| wherein said cursor display code is operable to process said cursor display instruction to modify said cursor image...responsive to movement of said cursor image over a specified location on said display... | The complaint alleges that the cursor image is modified "when a user's cursor is moved over a specific area of the web page," which appears to directly map to the "responsive to movement" limitation. | p. 11 | col. 19:56-65 |
- Identified Points of Contention:
- Scope Questions: A primary question for both patents is whether the accused functionality—an overlay "zoom box" that appears when the cursor hovers—constitutes a modification of the "cursor image" as that term is used in the patents. The patents’ own examples suggest a direct replacement of the pointer icon itself (e.g., arrow replaced by a soda bottle), raising the question of whether an overlaid box falls within the claims' scope. (’102 Patent, Fig. 8).
- Technical Questions: For the ’102 Patent, a key issue is the causal trigger. Claim 1 requires the modification to be "responsive to displaying" of information, but the complaint describes the accused feature as being triggered by cursor "move[ment] over a specific area." (Compl. p. 4). This suggests a potential mismatch between the claim language and the accused operation. The allegations appear to map more closely to claim 27 of the ’449 Patent, but that claim's cancellation raises significant questions about the viability of that infringement count.
V. Key Claim Terms for Construction
The Term: "cursor image"
- Context and Importance: The definition of this term is fundamental to the infringement analysis. The dispute may turn on whether the accused "zoom box," which is an element programmatically linked to the cursor's position but appears as an overlay, qualifies as the "cursor image" itself.
- Intrinsic Evidence for a Broader Interpretation: The specification describes the invention as providing a means for changing a cursor's "appearance" and is not explicitly limited to replacing the pointer icon. (’102 Patent, col. 3:12-17). This language may support an argument that any visual change tied to the cursor's function and position falls within the term's scope.
- Intrinsic Evidence for a Narrower Interpretation: The patent figures and the accompanying description of an embodiment where an arrow cursor changes into a "Fizzy Cola bottle shaped cursor" suggest a direct substitution of the pointer icon. (’102 Patent, Fig. 8; col. 13:35-44). This could support a narrower construction limited to the pointer itself, not an associated overlay.
The Term: "responsive to displaying of said at least a portion of said information" (from ’102 Patent, Claim 1)
- Context and Importance: This term defines the trigger for the cursor modification in the ’102 Patent's asserted claim. The infringement case for this patent may depend on whether a modification triggered by a user's later action (mouse movement) can be considered "responsive to" the initial display of information.
- Intrinsic Evidence for a Broader Interpretation: A party could argue that "responsive to" does not require immediacy, and that the display of information is a necessary precondition for the subsequent hover event, establishing a causal chain that satisfies the claim.
- Intrinsic Evidence for a Narrower Interpretation: The ’449 Patent, a continuation, explicitly claims modification "responsive to movement." (’449 Patent, col. 19:61-63). The use of different language in the '102 Patent for the trigger event suggests that "responsive to displaying" was intended to mean something different from, and narrower than, "responsive to movement."
VI. Other Allegations
- Indirect Infringement: The complaint does not plead separate counts for indirect or contributory infringement. The allegations focus on Defendant's direct infringement by "making, using... and/or selling a server system." (Compl. ¶¶ 12, 16).
- Willful Infringement: The complaint alleges that Defendant had pre-suit knowledge of the patents-in-suit via a letter sent by Plaintiff's licensing agent on June 27, 2017. (Compl. ¶3). The prayer for relief requests a finding that the case is exceptional under 35 U.S.C. § 285, which is consistent with an allegation of willful infringement. (Compl. p. 17).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of claim construction and scope: can the term "cursor image," which the patents illustrate as a replacement for the pointer icon itself, be construed to cover the "zoom box" overlay used in the accused e-commerce platform?
- A dispositive procedural question will be the impact of the post-filing IPR: given that the only claim asserted from the '449 Patent was cancelled, the infringement theory for that patent as currently pled may not be viable. How this affects the case will be a central focus.
- For the surviving ’102 Patent, a key evidentiary question will be one of infringement and causation: can Plaintiff prove that the accused system, which modifies the cursor based on user movement, meets the claim requirement that the modification be "responsive to displaying" of information, a distinction the patent family itself appears to make?