DCT
2:22-cv-00311
Lexos Media IP LLC v. Nike Inc
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Lexos Media IP, LLC (Delaware)
- Defendant: The GAP, Inc. (Delaware)
- Plaintiff’s Counsel: BUETHER JOE & COUNSELORS, LLC
- Case Identification: 2:22-cv-00311, E.D. Tex., 02/14/2023
- Venue Allegations: Plaintiff alleges venue is proper as Defendant has appeared in the action by filing an answer. The complaint also notes Defendant’s omni-channel retail operations, including allowing customers who purchase products online to return them to physical stores, which may form part of the basis for a regular and established place of business in the district.
- Core Dispute: Plaintiff alleges that the product image zoom feature on Defendant’s e-commerce websites infringes three patents related to dynamically modifying a user's cursor image to deliver content on a webpage.
- Technical Context: The technology concerns methods and systems for changing a computer cursor's appearance in a web browser to present advertising or product-related information, developed as an alternative to traditional banner ads and pop-ups in the early e-commerce era.
- Key Procedural History: The complaint highlights that two of the asserted patents, the ’102 and ’449 patents, were subject to inter partes review (IPR) proceedings initiated by a third party, Ralph Lauren. The Patent Trial and Appeal Board (PTAB) found several asserted claims, including claim 72 of the ’102 patent and numerous claims of the ’449 patent, not to be unpatentable. This decision was affirmed by the U.S. Court of Appeals for the Federal Circuit. This history may be relevant to the presumed validity of the surviving asserted claims.
Case Timeline
| Date | Event |
|---|---|
| 1997-06-25 | Earliest Priority Date for ’102, ’449, and ’241 Patents |
| 1999-11-30 | U.S. Patent No. 5,995,102 Issued |
| 2000-09-12 | U.S. Patent No. 6,118,449 Issued |
| 2011-07-05 | U.S. Patent No. 7,975,241 Issued |
| 2016-01-01 | Alleged Infringement by Defendant Begins (approx.) |
| 2018 | Ralph Lauren petitions for IPR of ’102 and ’449 Patents |
| 2023-02-14 | Amended Complaint Filed |
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
The Invention Explained
- Problem Addressed: The patent’s background section identifies a need for a new form of online advertising that avoids the drawbacks of prior art methods. It describes banner and frame advertisements as passive and "easily ignored," while self-appearing dialog boxes are "totally interrupting and intrusive" to the user experience (’102 Patent, col. 2:25-34; Compl. ¶19).
- The Patented Solution: The invention proposes a method where a remote server delivers a webpage containing "cursor display instructions." These instructions cause the user's standard cursor (e.g., an arrow) to be transformed into a "specific image" with a desired shape and appearance, such as a corporate logo or product icon, which is thematically related to the content on the webpage (’102 Patent, Abstract; col. 3:51-66). This allows for advertising content to be associated directly with the user’s point of interaction on the screen.
- Technical Importance: This approach provided a novel means for "on-screen advertising" that was more engaging than static banners but less disruptive than pop-up windows, linking advertising directly to the user's cursor movements (’102 Patent, col. 2:41-51).
Key Claims at a Glance
- The complaint asserts independent method claim 72 (Compl. ¶26).
- The essential elements of claim 72 include:
- Receiving a request at a server to provide specified content information to a user terminal.
- Providing that content information, which includes at least one "cursor display instruction" and an indication of "cursor image data."
- Transforming the initial cursor image into a specific image, where the specific image includes content corresponding to a portion of the information being displayed on the user's terminal.
- The transformation is responsive to the "movement of said cursor image over a display of said at least a portion of said information."
- The complaint does not explicitly reserve the right to assert dependent claims.
U.S. Patent No. 6,118,449 - "Server system and method for modifying a cursor image," Issued September 12, 2000
The Invention Explained
- Problem Addressed: As a continuation of the ’102 patent, the ’449 patent addresses the same problem of creating a more effective, less intrusive form of online advertising than the banner ads and pop-up windows prevalent at the time (’449 Patent, col. 2:1-35).
- The Patented Solution: This patent describes a server system architected to perform the cursor modification. The system comprises stored "cursor image data," "cursor display code" operable to modify the cursor, and a server computer that transmits this information to a remote user terminal within a webpage (’449 Patent, Abstract). The detailed description explains how these components interact to cause the user terminal to display the modified cursor (’449 Patent, col. 8:1-24).
- Technical Importance: The invention provided a specific system architecture for deploying cursor-based advertising, focusing on the server's role in providing the necessary code and data assets to the client.
Key Claims at a Glance
- The complaint asserts independent system claim 1, independent method claim 38, and independent method claim 53 (Compl. ¶53).
- The essential elements of independent claim 1 include:
- A server system comprising stored "cursor image data" and "cursor display code."
- A server computer that transmits "specified content information" (e.g., a webpage) to a user terminal.
- The content information includes a "cursor display instruction" that indicates the location of the cursor image data.
- The system causes the user terminal to display a modified cursor, where the new cursor image includes "content corresponding to at least a portion of said information to be displayed on said display of said user's terminal."
- The complaint does not explicitly reserve the right to assert dependent claims.
U.S. Patent No. 7,975,241 - "System for replacing a cursor image in connection with displaying the contents of a web page," Issued July 5, 2011
- Technology Synopsis: This patent, a continuation of the earlier patents, describes a system for modifying a cursor image where a client computer receives content information (e.g., a webpage) that includes a "cursor display instruction." Following receipt, the client computer processes the instruction to modify the cursor to include a "visual image" which contains promotional material and tracks the movement of the cursor (’241 Patent, Abstract; Compl. ¶70-74).
- Asserted Claims: The complaint asserts independent system claim 35 (Compl. ¶69).
- Accused Features: The accused functionality is the system on The Gap Websites that allegedly causes the user's computer to receive and process instructions to transform the cursor into a zoom-box "visual image" that includes product imagery ("promotional material") and tracks the cursor's movement over the product display (Compl. ¶70-74).
III. The Accused Instrumentality
Product Identification
- The "Accused Instrumentalities" are The Gap Websites, which include gap.com, oldnavy.gap.com, athleta.gap.com, and gapfactory.gap.com (Compl. ¶6, ¶25).
Functionality and Market Context
- The accused functionality is a product image zoom feature. When a user moves their mouse over a product image, the standard arrow cursor is replaced by what the complaint describes as a "specific image." This image is a "slightly shaded and transparent rectangle including an image of a portion of a product displayed on the web page" (Compl. ¶34). This transformed cursor acts as a magnifier, with an enlarged view of the portion of the product under the cursor appearing in a separate area of the screen (Compl. ¶38). Figure 2 of the complaint provides a screenshot of this feature in operation on the gap.com website (Compl. ¶34, p. 9).
- The complaint alleges that this cursor modification technology is an "innovation" that The GAP has used to "build the popularity and profitability of The Gap Websites" and constitutes an "improved marketing" technique (Compl. ¶25, ¶64).
IV. Analysis of Infringement Allegations
5,995,102 Patent Infringement Allegations
| Claim Element (from Independent Claim 72) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| receiving a request at said at least one server to provide specified content information to said user terminal | The GAP's servers receive a request for a webpage when a user navigates to one of The Gap Websites. | ¶28 | col. 20:28-31 |
| providing said specified content information... including at least one cursor display instruction | The GAP's servers transmit the webpage to the user's terminal, which includes instructions and code to modify the cursor. | ¶29, ¶30 | col. 8:15-24 |
| transforming said initial cursor image... into the shape and appearance of said specific image | The user's initial arrow cursor is transformed into a shaded, semi-transparent zoom box when moved over a product image. | ¶31, ¶35 | col. 20:34-40 |
| wherein said specific image includes content corresponding to at least a portion of said information that is to be displayed... | The modified cursor (the zoom box) contains a magnified portion of the product image, which is itself displayed on the webpage. Figure 2 illustrates this correspondence. | ¶32, ¶34 | col. 18:50-61 |
| responsive to movement of said cursor image over a display of said at least a portion of said information... | The cursor transformation is triggered when the user moves the cursor over the product image displayed on the webpage. | ¶36 | col. 24:1-10 |
Identified Points of Contention
- Scope Questions: A primary question will be whether the accused functionality, a semi-transparent zoom tool, qualifies as a "modified cursor image" within the meaning of the patent. The defense may argue that this is a functional user interface element (a magnifier), distinct from the advertising-focused, symbolic icons (e.g., brand logos) described as exemplary embodiments in the patent (’102 Patent, col. 11:65-67).
- Technical Questions: The claim requires the transformed "specific image" to include "content corresponding to" information on the display. The parties may dispute whether a magnified portion of an image is "corresponding content" or is simply the same content at a different resolution, potentially raising a question about the intended scope of this limitation.
6,118,449 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| A server system... comprising: cursor image data corresponding to said specific image; | The GAP's server system allegedly stores the data required to render the specific zoom box image. | ¶54, ¶56 | col. 8:5-10 |
| cursor display code, said cursor display code operable to modify said cursor image; | The Gap Websites provide code, such as JavaScript, which is transmitted to and executed by the user's browser to modify the cursor. | ¶57, ¶61 | col. 8:46-55 |
| a first server computer for transmitting specified content information... including at least one cursor display instruction... | The GAP's servers transmit webpages that contain the instructions causing the cursor modification to occur on the user's terminal. | ¶55, ¶58 | col. 19:40-52 |
| wherein said specific image including content corresponding to at least a portion of said information to be displayed... | The transformed cursor (zoom box) displays a magnified view of the product image shown on the webpage. Figure 5 from oldnavy.gap.com is cited as an example of this. | ¶60, ¶41 | col. 19:53-61 |
Identified Points of Contention
- Scope Questions: Does the use of standard web technologies like CSS and JavaScript to create the zoom effect meet the claim's requirement for a system comprising distinct "cursor image data" and "cursor display code"? The patent describes these components in the context of technologies like ActiveX controls and browser plug-ins, raising the question of whether the claim scope covers modern, script-based web development practices (’449 Patent, col. 10:2-15).
- Technical Questions: For a system claim, the patentee must prove the defendant "controls" the system as a whole. A key question will be what evidence demonstrates that The GAP controls the functionality that "has taken place on the user/customer's computer," as the complaint alleges (Compl. ¶64).
V. Key Claim Terms for Construction
Term: "cursor image" (’102 Patent, Claim 72)
- Context and Importance: The viability of the infringement case depends on whether the accused zoom/magnifier box is construed as a "cursor image". Practitioners may focus on this term because if the box is deemed a separate user interface element rather than the cursor itself, there may be no infringement.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification defines the cursor functionally as the on-screen icon a user employs to "'navigate' or move... over objects, buttons, menus, scroll bars, etc." (’102 Patent, col. 3:32-35). This could support an argument that whatever element is actively controlled by the user's mouse pointer at a given time is the "cursor image".
- Evidence for a Narrower Interpretation: The specification's examples of modified cursors are primarily symbolic or advertising-based, such as a "corporate or a brand logo," a "Fizzy Cola bottle," or a "witch-on-a-stick" (’102 Patent, col. 4:63-64; col. 14:38-40; col. 17:35-41). This may support a narrower construction limited to non-functional, representative icons rather than interactive tools like a magnifier.
Term: "cursor display code" (’449 Patent, Claim 1)
- Context and Importance: This term's construction is critical for determining whether the accused system, which likely uses standard website scripting, falls within the patent's claims. If construed narrowly, it could exclude modern web implementations.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The patent describes this code as being "operable to modify said cursor image" and being executed on the user terminal (’449 Patent, col. 1:2-3; col. 8:46-55). This could be interpreted broadly to encompass any set of instructions, including JavaScript, that achieves the claimed function.
- Evidence for a Narrower Interpretation: The specification repeatedly discusses the implementation in the context of specific technologies of the era, such as "ActiveX® controls" and browser "plug-ins" (’449 Patent, col. 10:2-15). This could support a narrower definition requiring a discrete, installable software component rather than general-purpose scripting embedded in a webpage.
VI. Other Allegations
- Indirect Infringement: The complaint does not plead a separate count for indirect infringement. While some language alleges Defendant made the system "available to others for use," the requisite elements of knowledge and specific intent for inducement are not explicitly alleged (Compl. ¶53).
- Willful Infringement: The complaint does not contain allegations of willful infringement or a request for enhanced damages.
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of definitional scope: can the term "cursor image," rooted in the patents' context of replacing the cursor with advertising icons and brand logos, be construed to cover the functional, semi-transparent zoom tool used on Defendant's websites?
- A key technical question will be one of architectural equivalence: does the accused system's implementation using modern, standard web scripting (e.g., JavaScript and CSS) meet the specific claim requirements for a system comprising distinct "cursor display code" and "cursor image data," which the patent specifications describe in the context of technologies like ActiveX plug-ins?
- A central validity question will be whether the asserted claims that survived inter partes review—a high bar—can withstand a new invalidity challenge based on different prior art or arguments, or if the case will turn almost exclusively on the non-infringement questions of scope and equivalence.