Lennon Image Tech LLC v. Jand

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Lennon Image Technologies, LLC (Texas)
  • Defendant: JAND, Inc. d/b/a Warby Parker (Delaware, with principal place of business in New York)
  • Plaintiff’s Counsel: Buether Joe & Carpenter, LLC
• Case Identification: 2:20-cv-00223, E.D. Tex., 06/30/2020
• Venue Allegations: Plaintiff alleges venue is proper in the Eastern District of Texas because Defendant has committed acts of infringement in the district and maintains regular and established places of business there, such as a retail store in Plano, Texas.
• Core Dispute: Plaintiff alleges that Defendant’s Warby Parker mobile application, which includes a virtual try-on feature for eyeglasses, infringes a patent related to systems for creating a composite image of a customer with a potential purchase item.
• Technical Context: The lawsuit concerns virtual try-on technology, an increasingly significant feature in e-commerce and augmented reality applications that allows consumers to visualize products on themselves before purchase.
• Key Procedural History: The asserted patent underwent an Ex Parte Reexamination, with a certificate issued in 2018. The complaint notes that the Patent Trial and Appeal Board (PTAB) confirmed the patentability of several claims, including dependent claim 18, which is asserted in this case. This history may be raised to suggest the patent's claims have already withstood a level of validity scrutiny at the USPTO.

Case Timeline

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

• Patent Identification: U.S. Patent No. 6,624,843, “Customer Image Capture and Use Thereof in a Retailing System,” issued September 23, 2003.

The Invention Explained

• Problem Addressed: The patent describes the traditional process of trying on apparel as "very time consuming" and notes that early "virtual models" were mere computer simulations that provided "virtually no detail regarding the customer's actual appearance" (’843 Patent, col. 1:24-40).
• The Patented Solution: The invention proposes a system to capture an actual image of a customer and electronically merge it with a stored "reference image" of an apparel item to create a composite image (’843 Patent, col. 2:12-20). This allows the customer a "virtual 'fitting'" by seeing the item on their own body, which is intended to be more realistic than a generic avatar (’843 Patent, Abstract; Fig. 1).
• Technical Importance: The technology aimed to bridge the gap between in-store and online retail by creating a more personalized and realistic remote shopping experience, reducing the need for physical try-ons and potentially lowering merchandise return rates (’843 Patent, col. 2:1-10).

Key Claims at a Glance

• The complaint asserts infringement of at least claim 18, which depends from claims 17 and 14 (Compl. ¶¶10, 27).
• Independent Claim 14 (Method):
  • capturing the customer image;
  • generating a composite image comprising the customer image and one of at least one apparel style image;
  • displaying the composite image to allow customer assessment without a physical try-on;
  • storing the customer image; and
  • retrieving the stored customer image in response to a request for the composite image.
• Dependent Claim 17 adds limitations to the "displaying" step, including detecting a person near a display, determining the person corresponds to the stored customer image, and displaying the composite in response to that determination.
• Dependent Claim 18 further specifies that the "determining" step includes "comparing biometric information of the person with the customer image."
• The complaint does not explicitly reserve the right to assert other claims, but the prayer for relief refers to "one or more claims of the Asserted Patent" (Compl., Prayer for Relief ¶(a)).

III. The Accused Instrumentality

Product Identification

• The "Warby Parker App," a mobile application for iOS that includes a "mobile virtual try-on tool" (Compl. ¶13).

Functionality and Market Context

• The complaint alleges the app uses a mobile device's camera to capture a user's image and then overlays different styles of eyeglasses, allowing a customer to see how they look without a physical try-on (Compl. ¶¶18-20). The complaint specifically alleges the app utilizes "Apple's Face ID and augmented reality technology" to render the glasses on the user's face in a "live, 3D preview" (Compl. ¶26). This functionality is central to Warby Parker's e-commerce strategy, enabling customers to select and purchase products directly through the app (Compl. ¶16). A screenshot from a news article in the complaint highlights the use of this advanced AR technology. (Compl. ¶26, p. 10).

IV. Analysis of Infringement Allegations

The complaint’s infringement theory centers on the claim that the Warby Parker App performs the method steps recited in claim 18 and its parent claims.

’843 Patent Infringement Allegations

• Identified Points of Contention:
  • Scope Question: Does the term "apparel style image," as used in a patent focused on clothing, read on the 3D rendered models of eyeglasses allegedly used by the Warby Parker App?
  • Technical Question: What specific technical operations constitute "comparing biometric information" under claim 18? The infringement allegation hinges on whether the app's use of AR/Face ID for facial mapping and rendering constitutes a "comparison" of "biometric information" for the purpose of "determining that the person corresponds to the customer image," as required by the claim structure, or if it is merely a facial tracking function for overlaying a graphic.

V. Key Claim Terms for Construction

• The Term: "apparel style image"

  • Context and Importance: The definition of this term is critical because the accused product involves eyeglasses, not the clothing examples that dominate the patent's written description. Defendant may argue that "apparel" implies clothing, narrowing the claim scope to exclude its product.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The specification provides an explicit definition: "As used herein, apparel includes clothing, accessories or any other items for which customer purchase decisions are typically based in part upon how the item appears when used by the customer" (’843 Patent, col. 2:15-19). Plaintiff will likely argue this definition expressly covers accessories like eyeglasses.
    • Evidence for a Narrower Interpretation: The background section and multiple embodiments focus heavily on traditional clothing, using phrases like "clothing styles," "puts on the pants," and "garments" (’843 Patent, col. 1:17-29; col. 5:12-14). A party could argue these examples contextualize "apparel" as referring to wearable garments, not hard goods like glasses.

• The Term: "comparing biometric information"

  • Context and Importance: This limitation is the central feature of asserted claim 18, the most specific claim identified. The infringement case depends on proving the accused app performs this comparison. Practitioners may focus on this term because it distinguishes the invention from simpler systems that might just overlay a static image.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The patent does not narrowly define the term. It mentions the use of "biometrics identification software" in general terms and refers to recognizing a customer's face, suggesting the term could encompass a range of facial analysis techniques (’843 Patent, col. 6:42-43; col. 8:64-67).
    • Evidence for a Narrower Interpretation: Claim 17 already requires "determining that the person corresponds to the customer image." The additional step of "comparing biometric information" in claim 18 must add a further, specific limitation. Defendant may argue this requires a discrete, data-level comparison for identity verification, rather than the continuous facial mapping used for augmented reality rendering.

VI. Other Allegations

• Indirect Infringement: The complaint alleges inducement of infringement under 35 U.S.C. § 271(b), stating that Defendant encourages infringement by making the Warby Parker App available to customers and providing instructions on its use (Compl. ¶28).
• Willful Infringement: The complaint makes a request for treble damages for willful infringement in the prayer for relief but does not plead specific facts in the body of the complaint to support pre-suit knowledge of the patent or a risk of infringement that was consciously disregarded (Compl., Prayer for Relief ¶(d)).

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

• A core issue will be one of definitional scope: Does the patent's explicit definition of "apparel" to include "accessories" definitively bring eyeglasses within the scope of the claims, or can the patent's consistent focus on clothing be used to argue for a narrower construction that excludes them?
• A key evidentiary question will be one of technical operation: Does the accused app's use of augmented reality to map and render glasses on a live video feed of a user's face constitute "comparing biometric information...of the person with the customer image" as required by claim 18? Or, is this a fundamentally different process from the identity-confirmation function suggested by the claim's context?
• A third question concerns patent validity in light of the reexamination: How will the court and the parties leverage the patent's reexamination history, where the asserted claim 18 was confirmed patentable, in arguments regarding the claim's strength and scope?