Askan v. Faro Tech Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Yoldas Askan (United Kingdom)
  • Defendant: FARO Technologies, Inc. (Florida)
  • Plaintiff’s Counsel: Yoldas Askan (Pro Se)
• Case Identification: Yoldas Askan v. FARO Technologies, Inc., 6:24-cv-01674, M.D. Fla., 09/15/2024
• Venue Allegations: Venue is based on Defendant being a Florida corporation with its principal place of business within the Middle District of Florida.
• Core Dispute: Plaintiff alleges that Defendant’s 3D laser scanners and associated software, released after June 2023, infringe patents related to methods and systems for smoothing noisy 3D point cloud data.
• Technical Context: The technology concerns software algorithms designed to process raw data from 3D scanners to remove statistical noise and inaccuracies, thereby producing a more precise digital representation of a scanned object.
• Key Procedural History: The complaint details significant history between the parties, including three prior patent infringement lawsuits filed by the Plaintiff against the Defendant in the same district, which were not decided on the merits. An appeal in one of the prior cases is alleged to be pending. The current action is explicitly directed at "newly released products after June 2023" to avoid res judicata issues. The complaint also alleges extensive pre-suit communications and interactions dating back to 2010, which form the basis for allegations of willful infringement.

Case Timeline

Date	Event
2010-09-10	FARO executive emails Plaintiff regarding a potential "working relationship"
2011-06-01	Plaintiff's invention published in Nuclear Future Journal
2011-06-14	FARO Software Development Manager emails Plaintiff expressing interest in his work
2011-08-25	FARO manager emails Plaintiff stating intent to "profit from your surface smoothing technique"
2011-08-25	FARO manager confirms downloading Plaintiff's software for review
2012-06-25	Earliest Priority Date for '841 and '255 Patents
2016-03-29	U.S. Patent No. 9,300,841 Issues
2018-07-24	U.S. Patent No. 10,032,255 Issues
2023-06-01	Alleged release period begins for Accused Faro 3D Focus Premium Flash scanner range
2023-10-01	Alleged release of Accused FARO Orbis™ Mobile Scanner
2024-09-15	Complaint Filed

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

U.S. Patent No. 9,300,841 - "Method of Generating a Smooth Image from Point Cloud Data"

The Invention Explained

• Problem Addressed: The patent describes that point cloud data obtained from 3D laser scanners does not accurately represent the true dimensions of an object due to various types of noise, such as "statistical noise and false scatter points" ('841 Patent, col. 1:28-31). This noise can mask the true shape of the object and prevent accurate measurements ('841 Patent, col. 1:50-56).
• The Patented Solution: The invention is a method for processing an array of pixels from a point cloud to create a smoothed, noise-free representation. The process is iterative, involving a "distance value adjusting loop" ('841 Patent, Abstract). For each pixel, the method calculates a difference between its distance value and those of its neighbors. Based on whether this difference is within a calculated "error bar" and whether a sufficient number of neighbors meet this criterion, the pixel's original distance value is either adjusted by a fraction, replaced with a weighted average, or left unchanged ('841 Patent, col. 2:3-21).
• Technical Importance: This method claims to enable more precise measurements from 3D scan data, which is particularly important for engineering purposes where minute deformations must be monitored to ensure structural integrity ('841 Patent, col. 1:51-56).

Key Claims at a Glance

• The complaint asserts at least independent claim 1 ('841 Patent, col. 15:20-67).
• Essential elements of claim 1 include:
  • calculating local error limits for each distance value for each pixel in a processed point cloud data set;
  • determining an error bar;
  • beginning a distance value adjusting loop for each pixel;
  • calculating the difference between the distance value in the pixel being processed and each of the neighboring pixels;
  • if the difference is not within the error bar, changing the distance value for the pixel being processed by a small fraction;
  • if the difference is within the error bar, replacing the distance value with a weighted average value;
  • counting the number of neighboring pixels with their distance values within the error bar;
  • if the count is greater than a predetermined threshold, averaging the counted distance values and substituting the average for the pixel distance value.
• The complaint also asserts infringement by equivalents and induced infringement (Compl. ¶¶ 81, 93).

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U.S. Patent No. 10,032,255 - "System for Smoothing 3D Clouds"

The Invention Explained

• Problem Addressed: Similar to the ’841 Patent, the ’255 Patent addresses the problem of noise and scatter points in 3D point cloud data that prevent accurate representation and measurement of scanned objects ('255 Patent, col. 1:26-31).
• The Patented Solution: Rather than claiming only a method, this patent claims a complete system comprising a scanner and a processor. The scanner generates an initial, noisy "first point cloud data set" with corresponding distance values ('255 Patent, col. 13:11-17). A processor is configured to execute instructions to receive this data and generate a "second point cloud data set" representing a noise-free and smoothed version. This is achieved by generating new "second distance values" which are an "average based distance value of the at least two neighboring points" and performing this process iteratively ('255 Patent, col. 13:18-33).
• Technical Importance: The invention provides an integrated system for capturing and automatically processing 3D scan data to improve its accuracy, moving the patented concept from a standalone method to an embodied system ('255 Patent, col. 1:47-56).

Key Claims at a Glance

• The complaint asserts at least independent claim 1 ('255 Patent, col. 13:9-38).
• Essential elements of claim 1 include:
  • A scanner operably configured to scan a surface to generate a first point cloud data set, representing a noisy 3D model with first distance values.
  • A processor operably configured to execute instructions for:
    • receiving the first point cloud data set;
    • generating second distance values from the first point cloud data set, where at least one is based on at least two neighboring points;
    • generating a second point cloud data set based on the second distance values, which are an average based distance value of the at least two neighboring points;
    • performing one or more iterations to generate subsequent distance values;
    • outputting the processed point cloud data set.
• The complaint also asserts infringement by equivalents and induced infringement (Compl. ¶¶ 87, 101).

III. The Accused Instrumentality

Product Identification

The primary accused products are the "Faro 3D Focus Premium Flash scanner range released after June 2023" and the associated "FARO SCENE 2023 software" (Compl. ¶¶17, 54, 65). The "FARO Orbis™ Mobile Scanner released on October 2023" is also identified as a potentially infringing product, subject to discovery (Compl. ¶66).

Functionality and Market Context

The complaint alleges that the accused scanners generate raw point cloud data and that their associated software processes this data to create smoothed images for display (Compl. ¶57). The core infringement theory is that this smoothing is achieved by "processing of the scan points by averaging" (Compl. ¶57). The complaint cites experimentation allegedly showing that the scanners produce output with noise levels below 0.1mm, yet fail to distinguish actual object details smaller than 0.1mm, suggesting that the data must be filtered or smoothed (Compl. ¶¶54-56). It further supports this by referencing an alleged admission from a FARO employee in prior litigation that its code can "change the distance values of scan points by replacing the distance value of a given scan point with a mean distance value" (Compl. ¶52). As part of its willfulness allegations, the complaint includes a screenshot of an email in which a FARO manager states he "just downloaded your S-Delta software" for review in 2011 (Compl. p. 8).

IV. Analysis of Infringement Allegations

The complaint references claim chart exhibits that are not provided; therefore, the infringement allegations are summarized below in prose.

'841 Patent (Method) Infringement Allegations

The complaint alleges that Defendant’s post-June 2023 products practice the patented method for smoothing point cloud data. The narrative theory posits that because the output images from the accused products are smoother than what the raw scanner data would permit, FARO must be performing a filtering process (Compl. ¶¶54-56). This process is alleged to be the claimed method of "averaging of scan-point distance values" (Compl. ¶58). This theory is supported by an alleged admission from a FARO employee in a prior case regarding older FARO software, which purportedly could replace a point's distance value with a "mean distance value" of its neighbors (Compl. ¶52). The complaint includes a screenshot of a 2011 email from a FARO manager to Plaintiff stating, "we can still profit from your surface smoothing technique given of course that we find a mutually agreement which I think we will ;-)" (Compl. p. 7).

'255 Patent (System) Infringement Allegations

The complaint alleges that FARO’s scanner systems, which combine scanning hardware with processing software, constitute an infringing system under the ’255 patent. The scanner itself is alleged to perform the claimed step of generating a "first point cloud data set" (Compl. ¶¶8, 53). The processor, either within the scanner or in associated software like FARO SCENE, is alleged to perform the claimed processing steps, including generating a "second point cloud data set based on the second distance values which are an average based distance value of the at least two neighboring points" (Compl. ¶53). The Faro 3D Focus Premium Flash scanner range is identified as a specific product line that allegedly infringes (Compl. ¶65).

Identified Points of Contention

• Technical Questions: The complaint's infringement theory relies heavily on inference (the output is smooth, so it must be filtered) and on an alleged admission regarding older software versions ("2019 Code and the 2020 Code") (Compl. ¶52). A central question will be what specific algorithm the accused post-June 2023 products actually use. The Defendant may argue that these newer products employ a different, non-infringing smoothing technique.
• Scope Questions: Does the "mean distance value" functionality described in the alleged admission from prior litigation (Compl. ¶52) meet the more detailed, multi-step iterative process required by the claims? The patents describe steps like calculating an "error bar," using a "predetermined threshold" for neighbor counts, and performing a "distance value adjusting loop," which may be more complex than a simple averaging function ('841 Patent, Claim 1).

V. Key Claim Terms for Construction

The Term: "average based distance value" ('255 Patent, Claim 1) and "weighted average value" ('841 Patent, Claim 1)

Context and Importance

These terms are central to the infringement theory, which alleges that FARO’s products replace distance values with a "mean distance value" of neighboring points (Compl. ¶52). The construction of these terms will determine whether a simple mean calculation falls within the claim scope or if a more specific type of averaging is required.

Intrinsic Evidence for Interpretation

• Evidence for a Broader Interpretation: The plain meaning of "average" could be argued to encompass a simple mathematical mean, which would align with the infringement allegations.
• Evidence for a Narrower Interpretation: The specifications describe a more complex process. The flow chart in Figure 10 of both patents shows a step of replacing a pixel distance with a "loop count weighted average value" ('255 Patent, FIG. 10, step 340; '841 Patent, FIG. 10, step 340). The defense may argue that the claim terms should be limited to this specific, disclosed embodiment.

The Term: "performing...one or more iterations" ('255 Patent, Claim 1) and "beginning a distance value adjusting loop" ('841 Patent, Claim 1)

Context and Importance

The patents describe an iterative process that progressively smooths the data. Practitioners may focus on this term because the complaint alleges "processing...by averaging" but does not explicitly allege facts showing that the accused products perform this averaging in an iterative loop as the claims require. Infringement will depend on demonstrating that the accused products do more than a single-pass calculation.

Intrinsic Evidence for Interpretation

• Evidence for a Broader Interpretation: The term could be interpreted to cover any process that repeats a calculation over the data set until a condition is met.
• Evidence for a Narrower Interpretation: The flowcharts in the patents depict a specific loop structure with conditional exits (e.g., "Completed defined number of loops?") ('255 Patent, FIG. 10, step 358; '841 Patent, FIG. 10, step 358). A defendant could argue this structure is required to meet the "iteration" or "loop" limitation.

VI. Other Allegations

Indirect Infringement

The complaint alleges inducement of infringement, asserting that FARO sells the accused 3D scanner systems to customers with knowledge of the patents and with the specific intent to encourage them to use the scanners in an infringing manner (Compl. ¶¶95, 103). The basis for knowledge is FARO having been "previously informed" of the patents (Compl. ¶¶96, 104).

Willful Infringement

Willfulness is a central theme of the complaint. The allegations are based on both pre- and post-suit knowledge. Pre-suit knowledge is supported by extensive allegations of communication between the parties dating back to 2010-2011, including emails where FARO expressed commercial interest in the technology, downloaded Plaintiff's software, and published a case study about Plaintiff's invention on its own website (Compl. ¶¶19-31). The complaint includes screenshots of these communications, including one from a FARO manager stating, "we can still profit from your surface smoothing technique" (Compl. p. 7). Post-issuance knowledge is alleged based on Plaintiff notifying FARO after the '841 and '255 patents were issued (Compl. ¶¶35, 40).

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

• A key evidentiary question will be one of algorithmic identity: what is the specific data smoothing algorithm used in FARO's products released after June 2023, and does the evidence—beyond inference from output smoothness and admissions related to older products—show that it practices the specific iterative, threshold-based averaging method required by the patent claims?
• A central claim construction question will be the definitional scope of "average": can the terms "average based distance value" and "weighted average value" be construed to cover a simple mean calculation as alleged, or are they limited by the specification's disclosure of a more complex "loop count weighted average," creating a potential mismatch with the accused functionality?
• A core issue will be the impact of the parties' history: given the extensive pre-suit interaction and prior litigation, a significant question is whether the evidence of FARO's early interest in the technology and alleged copying will be sufficient to support a finding of willful infringement, particularly if the infringement case for the new products proves to be a close call.