Jabaa LLC v. Kroger Co

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Jabaa, LLC (Maine)
  • Defendant: The Kroger Co. (Ohio)
  • Plaintiff’s Counsel: KENT & RISLEY LLC
• Case Identification: 2:22-cv-00479, E.D. Tex., 12/17/2022
• Venue Allegations: Venue is alleged based on Defendant maintaining regular and established places of business within the Eastern District of Texas, supported by a list of specific store addresses, and committing alleged acts of infringement in the district.
• Core Dispute: Plaintiff alleges that Defendant’s Kroger mobile application infringes a patent related to securing online transactions through a biometric authentication apparatus.
• Technical Context: The technology concerns dedicated hardware peripherals that use biometrics (e.g., fingerprints) to authenticate users for online transactions, aiming to provide a level of security equivalent to a physical "card present" transaction.
• Key Procedural History: The complaint alleges that Plaintiff provided Defendant with actual notice of infringement via a letter dated December 10, 2022, seven days prior to filing the suit. The provided patent documents also include an Inter Partes Review (IPR) Certificate, issued June 24, 2025, indicating that all claims (1-24) of the patent-in-suit have been cancelled. The issuance of this certificate post-dates the complaint filing and its impact on the litigation would be a central and likely dispositive issue for the court.

Case Timeline

Date	Event
2005-12-23	'637 Patent Priority Date
2009-01-20	'637 Patent Issue Date
2022-12-10	Plaintiff sends pre-suit notice letter to Defendant
2022-12-17	Complaint Filing Date
2025-06-24	IPR Certificate issues cancelling all '637 Patent claims

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

• Patent Identification: U.S. Patent No. 7,480,637, Internet Transaction Authentication Apparatus, Method, And System For Improving Security Of Internet Transactions, issued January 20, 2009.

The Invention Explained

• Problem Addressed: The patent’s background section identifies the growing security risks of online financial transactions, specifically citing fraudulent "cloned" websites designed to trick users into revealing sensitive data and the use of stolen credentials by imposters to make unauthorized purchases. (’637 Patent, col. 2:8-27).
• The Patented Solution: The invention proposes a self-contained, portable hardware device—referred to as an Internet Transaction Authentication (ITA) apparatus—such as a USB dongle or wireless card, equipped with a fingerprint sensor. (’637 Patent, Fig. 1A-1B). This apparatus is designed to perform both the biometric authentication of the user and the cryptographic authentication of the transaction and device itself, isolating these critical security functions from the user's potentially compromised host computer. (’637 Patent, col. 3:36-49). This creates a secure, end-to-end communication channel for the transaction.
• Technical Importance: The technical approach sought to increase transaction security by moving authentication processes from vulnerable software on a general-purpose computer to dedicated, secure firmware within a single-purpose hardware peripheral. (’637 Patent, col. 3:42-49).

Key Claims at a Glance

• The complaint asserts independent claim 1. (Compl. ¶23).
• Claim 1 of the ’637 Patent recites:
  • A biometric customer authentication apparatus for improving online transaction security and for assuring the identity of a customer, comprising:
  • an electronic enclosure including a fingerprint sensor disposed thereupon and further including an external communications interface;
  • at least one processor comprised within said enclosure and coupled to said fingerprint sensor;
  • transaction security software resident within and executing on said at least one processor further comprising biometric fingerprint authentication software for authenticating authorized customers and also comprising cryptographic transaction authentication software for authenticating transactions;
  • at least one of a memory and a communications buffer coupled to said at least one processor and further coupled to said external communications interface; and
  • a communications subsystem coupled into said external communications interface for relaying data messages between at least one external system and said apparatus.

III. The Accused Instrumentality

• Product Identification: The accused instrumentality is Defendant's "Kroger app." (Compl. ¶23).
• Functionality and Market Context: The complaint alleges that Defendant infringes by its "use of the Kroger app," including for internal testing purposes, and by encouraging its customers to use the app. (Compl. ¶¶ 23-24). The complaint itself offers no specific details regarding the technical functionality of the Kroger app. Instead, it references a "preliminary claim chart attached as Exhibit B" to detail the infringement theory; however, this exhibit was not included in the provided court filing. (Compl. ¶23).

No probative visual evidence provided in complaint.

IV. Analysis of Infringement Allegations

The complaint references a claim-chart exhibit that is not provided. The infringement theory is therefore summarized from the narrative allegations.

The complaint asserts that the Kroger app infringes at least claim 1 of the ’637 Patent, either literally or under the doctrine of equivalents. (Compl. ¶23). The infringement theory, which relies on an unattached exhibit, appears to map the elements of the claimed hardware "apparatus" onto a modern smartphone running the Kroger app. Under this theory, the smartphone itself would constitute the "electronic enclosure," processor, memory, and communications interface, while the Kroger app would allegedly provide the claimed "transaction security software."

• Identified Points of Contention:
  • Scope Questions: The central infringement dispute may turn on whether a software application (the Kroger app) running on general-purpose hardware (a customer's smartphone) can constitute the claimed "biometric customer authentication apparatus." The patent specification consistently describes and depicts the invention as a dedicated, stand-alone peripheral hardware device, such as a "USB Dongle Form." (’637 Patent, Fig. 1A). This raises the question of whether the claimed "apparatus" is limited to such peripherals or if it can be read broadly enough to cover a software-and-hardware combination on a multi-function device like a smartphone.
  • Technical Questions: What evidence demonstrates that the Kroger app itself contains and executes the claimed "biometric fingerprint authentication software" and "cryptographic transaction authentication software"? A court may need to determine if the app is merely calling upon a phone's operating-system-level security functions (e.g., native fingerprint APIs) rather than containing and executing the distinct software modules as required by the claim language.

V. Key Claim Terms for Construction

• The Term: "biometric customer authentication apparatus"

• Context and Importance: This term defines the invention as a whole. The viability of the infringement claim depends on whether a smartphone running the accused app falls within the scope of this term. Practitioners may focus on this term because the patent's text and figures appear to describe a separate hardware peripheral, creating a potential mismatch with the accused software-on-a-smartphone implementation.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The term "apparatus" itself is broad and is not explicitly limited in the claim language to a specific form factor like a USB dongle. (Compl. ¶19; ’637 Patent, col. 8:43-47).
  • Evidence for a Narrower Interpretation: The specification repeatedly describes the invention as a distinct entity from the host computer, such as "a stand-alone personal authenticator" and a "small-form-factor enclosure with a USB interface connector." (’637 Patent, col. 3:27-28, 56-57). The figures exclusively depict dedicated peripherals. (’637 Patent, Figs. 1A, 1B). An argument could be made that the invention's purpose is to remove security functions from a general-purpose device, not to be implemented upon one.

• The Term: "electronic enclosure"

• Context and Importance: This term appears in the first limitation of claim 1. To prove infringement, Plaintiff's theory would need to equate a smartphone's casing with this "enclosure."

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: A smartphone is housed within an electronic enclosure, and the claim language does not further restrict the term.
  • Evidence for a Narrower Interpretation: The detailed description links the "enclosure" directly to the ITA apparatus itself, describing the "electronics enclosure body 10 of the ITA," which is depicted as a USB dongle separate from any host computer. (’637 Patent, col. 4:62-64, Fig. 1A). This suggests the term refers to the housing of the dedicated peripheral, not the housing of a host device like a smartphone.

VI. Other Allegations

• Indirect Infringement: The complaint alleges inducement by asserting that Defendant "encourag[es] and instruct[s]" customers to use the Kroger app in an infringing manner. (Compl. ¶24). It alleges contributory infringement by claiming Defendant provides the app for download, that the app is not a staple article of commerce, and that it has "no substantial non-infringing use." (Compl. ¶25).
• Willful Infringement: The willfulness allegation is based on alleged continued infringement after Defendant received a notice letter on December 10, 2022, providing it with "actual notice and knowledge" of the ’637 Patent. (Compl. ¶21, ¶24).

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

1. Procedural Viability: The most critical question is the immediate effect of the post-complaint IPR certificate that cancelled all claims of the '637 patent. The case's ability to proceed at all in light of this development will likely be the first and most significant issue addressed by the court.
2. Definitional Scope: Should the case proceed, a core issue will be one of definitional scope: can the term "biometric customer authentication apparatus," described and illustrated in the patent as a dedicated hardware peripheral designed to be separate from a host computer, be construed to cover a software application running on a general-purpose smartphone?
3. Technical Mismatch: A key evidentiary question will be one of technical operation: does the accused Kroger app contain and execute its own "biometric... authentication software" and "cryptographic... authentication software" as claimed, or does it merely leverage a phone's underlying operating system security features, creating a potential mismatch with the specific architecture recited in claim 1?