DCT
2:24-cv-00918
Alpha Modus Corp v. Brookshire Grocery Co
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Alpha Modus, Corp. (Florida)
- Defendant: Brookshire Grocery Co. (Texas)
- Plaintiff’s Counsel: Dickinson Wright PLLC
- Case Identification: 2:24-cv-00918, E.D. Tex., 11/12/2024
- Venue Allegations: Plaintiff alleges venue is proper because Defendant operates multiple "Super 1 Foods" stores that constitute regular and established places of business within the Eastern District of Texas and has previously consented to jurisdiction and venue in the district in prior litigation.
- Core Dispute: Plaintiff alleges that Defendant’s use of in-store digital advertising displays infringes five patents related to the real-time monitoring and analysis of consumer behavior to deliver targeted marketing and manage inventory.
- Technical Context: The technology at issue involves using in-store sensors, such as cameras, to analyze shopper demographics, sentiment, and behavior in real-time to personalize content shown on digital displays.
- Key Procedural History: The complaint notes that on January 11, 2024, Plaintiff entered into an intellectual property licensing agreement with GZ6G Technologies Corp., which may indicate an active licensing program for the asserted patent portfolio.
Case Timeline
| Date | Event |
|---|---|
| 2013-07-19 | Priority Date for all Patents-in-Suit |
| 2016-01-01 | Grocery TV (provider of Accused Products) co-founded (approximate date) |
| 2019-07-23 | U.S. Patent No. 10,360,571 Issues |
| 2020-12-01 | U.S. Patent No. 10,853,825 Issues |
| 2021-04-13 | U.S. Patent No. 10,977,672 Issues |
| 2021-06-22 | U.S. Patent No. 11,042,890 Issues |
| 2022-04-12 | U.S. Patent No. 11,301,880 Issues |
| 2024-01-11 | Plaintiff licenses patent portfolio to GZ6G Technologies Corp. |
| 2024-11-12 | Complaint Filed |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 10,360,571 - "Method For Monitoring And Analyzing Behavior And Uses Thereof"
The Invention Explained
- Problem Addressed: The patent describes the challenge faced by brick-and-mortar retailers competing with online stores, which can leverage user data to provide personalized shopping experiences. Physical retailers lack methods to gather and use consumer data before the point of sale, making them vulnerable to "showrooming," where customers examine products in-store but purchase them online. (Compl. ¶28; ’571 Patent, col. 1:41-48, col. 2:34-39).
- The Patented Solution: The invention proposes a method using in-store "information monitoring devices," like video cameras, to gather real-time data on shoppers, including demographic, sentiment, and tracking information. This data is analyzed in real-time to provide a targeted response, such as a personalized advertisement on a display or a digital coupon, while also providing an option for consumers to opt-out of the monitoring. (Compl. ¶27, ¶30; ’571 Patent, Abstract; col. 4:22-38). The complaint includes a figure from the patent showing a system identifying a shopper's gender, age, and emotional state. (Compl. p. 6, FIG. 2).
- Technical Importance: The technology aims to provide physical retailers with the data analytics capabilities of e-commerce, allowing them to deliver personalized marketing to influence purchasing decisions at the shelf. (Compl. ¶29).
Key Claims at a Glance
- The complaint asserts at least Claim 1. (Compl. ¶94).
- Essential elements of independent Claim 1 include:
- Using one or more information monitoring devices, including video image devices, to gather information about persons at a location.
- Gathering a "demographic characteristic" (e.g., gender, age).
- Gathering a "sentiment characteristic."
- Gathering a "tracking characteristic" (e.g., movement, eye movement).
- Providing an opt-out option to the persons.
- Analyzing in real time the gathered information for the persons who have not opted out.
- Providing a response in real time based on the analysis, selected from a group including engaging the person on a display, sending a communication to a second person (e.g., store staff), providing marketing information, or providing a coupon.
- The complaint does not explicitly reserve the right to assert dependent claims.
U.S. Patent No. 10,853,825 - "Method for monitoring and analyzing behavior and uses thereof"
The Invention Explained
- Problem Addressed: The patent addresses the same competitive gap between online and brick-and-mortar retail, noting the challenge for physical stores to provide real-time, personalized customer experiences. (Compl. ¶38-39; ’825 Patent, col. 1:45-54).
- The Patented Solution: The invention claims a method that also uses in-store monitoring devices to collect demographic and tracking data about a customer. However, this method uses the real-time analysis of that data to "select a sales associate" and send a communication to that associate, enabling a targeted, personalized human interaction. (Compl. ¶41; ’825 Patent, Abstract; col. 18:30-51).
- Technical Importance: This approach focuses on using real-time data analytics to augment the effectiveness of in-store sales staff, rather than solely relying on automated digital displays for customer engagement. (Compl. ¶37, ¶41).
Key Claims at a Glance
- The complaint asserts at least Claim 1. (Compl. ¶119).
- Essential elements of independent Claim 1 include:
- Using one or more information monitoring devices, including video image devices, to gather information about a first person at a retail store.
- Gathering a demographic characteristic of the first person.
- Gathering a tracking characteristic of the first person.
- Analyzing the gathered information in real time to generate a real-time analysis of the first person.
- Utilizing the real-time analysis to select a sales associate from a group of sales associates.
- Sending a communication to the selected sales associate that includes at least a portion of the gathered information or the real-time analysis, enabling the associate to directly interact with the person.
- The complaint does not explicitly reserve the right to assert dependent claims.
U.S. Patent No. 10,977,672 - "Method And System For Real-Time Inventory Management, Marketing, And Advertising In A Retail Store"
- Technology Synopsis: The patent claims a system for real-time inventory management and marketing. The system's server uses image recognition to identify product inventory at a display location, determines and displays current pricing, receives real-time data about a nearby customer, and generates a promotion for that customer based on behavioral analytics. (Compl. ¶48, ¶52). The complaint provides a visual of the accused system's various in-store "touchpoints," including at the front end and pharmacy, where such a system could be deployed. (Compl. p. 32).
- Asserted Claims: At least Claim 1. (Compl. ¶140).
- Accused Features: The complaint alleges the Accused Products embody a system for real-time inventory management, marketing, and advertising that performs the claimed functions of identifying inventory, displaying information, determining pricing, receiving real-time customer data, and generating promotions. (Compl. ¶139, ¶141).
U.S. Patent No. 11,042,890 - "Method And System For Customer Assistance In A Retail Store"
- Technology Synopsis: The patent claims a method for providing customer assistance by using monitoring devices to gather "object identification information" of a product a person is interested in, as well as "sentiment information" of the person regarding that product. This information is analyzed in real-time to manage inventory and provide a real-time response, such as directing the person to a product location or providing a coupon. (Compl. ¶62).
- Asserted Claims: At least Claim 1. (Compl. ¶162).
- Accused Features: The Accused Products are alleged to use monitoring devices to gather object identification and sentiment information, analyze it in real time, and provide responses such as marketing information or coupons. (Compl. ¶163-165).
U.S. Patent No. 11,301,880 - "Method And System For Inventory Management In A Retail Store"
- Technology Synopsis: The patent claims a method for inventory management that uses monitoring devices to gather "product interaction information" (e.g., products being picked up or carried away) and "object identification information." This data is analyzed in real-time to manage inventory, and a response is provided, such as sending a communication to a retail store person to check inventory levels or re-stock a product. (Compl. ¶73).
- Asserted Claims: At least Claim 1. (Compl. ¶186).
- Accused Features: The Accused Products are alleged to gather product interaction and object identification information, analyze it in real time, and provide a response that includes sending a communication to retail personnel regarding inventory. (Compl. ¶190-191).
III. The Accused Instrumentality
Product Identification
- The Accused Products are identified as digital displays and associated systems provided by Grocery TV, which are implemented and utilized in Defendant's "Super 1 Foods" retail stores. (Compl. ¶77, ¶81-82).
Functionality and Market Context
- The complaint describes the Accused Products as motion-activated digital smart screens placed in checkout aisles and other store locations to display advertisements. (Compl. ¶79, ¶89, ¶114). The system allegedly uses "AI technology" and "computer vision technology" to measure advertising metrics like "impressions, engagement, and reach in real time." (Compl. ¶114, ¶163). The complaint alleges these systems can activate targeted, "contextually relevant" advertising campaigns programmatically, such as weather-triggered promotions. (Compl. ¶91-92). A screenshot from Grocery TV's website shows mock-ups of weather-triggered ads for shoes, illustrating this capability. (Compl. p. 22). The complaint further alleges that the technology is used to identify when products sell out, "allowing for faster restocks." (Compl. ¶118). Plaintiff alleges that Defendant's implementation of this technology has "significantly contributed to its retail efficiency and profitability." (Compl. ¶83). A visual from Grocery TV's website shows that its motion-activated displays only show ads when a customer is present. (Compl. p. 26).
IV. Analysis of Infringement Allegations
10,360,571 Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| (a) using one or more information monitoring devices... compris[ing] one or more video image devices; | The Accused Products utilize one or more information monitoring devices, including video image devices, to gather information about persons in Brookshire’s retail stores. | ¶90 | col. 21:46-48 |
| (iv) ...gathering a demographic characteristic of the persons... | The Accused Products collect demographic characteristics of persons in proximity to the monitoring devices. | ¶92 | col. 21:50-55 |
| (v) ...gathering a sentiment characteristic of the persons... | The Accused Products collect sentiment characteristics of persons in proximity to the monitoring devices. | ¶92 | col. 21:56-59 |
| (vi) ...gathering a tracking characteristic of the persons... | The Accused Products collect tracking characteristics of persons in proximity to the monitoring devices. | ¶92 | col. 21:60-62 |
| (b) providing an opt-out option to the persons... | Upon information and belief, the Accused Products have signage providing for the ability of persons to opt out. | ¶93 | col. 22:4-8 |
| (c) analyzing in real time... the information gathered... except for the subset of opt-out persons... | The Accused Products analyze the information gathered from those who have not opted out. This analysis occurs in real-time via systems connected to a server or database. | ¶91, ¶93 | col. 22:9-18 |
| (d) providing a response in real time based upon the analyzed information... | The Accused Products deliver dynamic, real-time messaging with contextual and targeted ads based on the analysis. | ¶91, p. 23 | col. 22:19-23 |
10,853,825 Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| (a) using one or more information monitoring devices to gather information about a first person...at a retail store...comprise one or more video image devices | The Accused Products utilize one or more information monitoring devices, including video image devices, to gather information about persons in Brookshire's retail stores. | ¶114 | col. 21:36-44 |
| (iv) ...gathering a demographic characteristic of the first person... | The Accused Products collect demographic characteristics of persons in proximity to the monitoring devices. | ¶116 | col. 21:45-50 |
| (v) ...gathering a tracking characteristic of the first person... | The Accused Products collect tracking characteristics of persons in proximity to the information monitoring devices. | ¶116 | col. 21:51-57 |
| (b) analyzing in real time... the information gathered... to generate a real time analysis of the first person... | The Accused Products analyze in real time the information gathered by the monitoring devices. AI technology is used to measure key metrics in real time. | ¶117, ¶114 | col. 22:1-7 |
| (c) utilizing the real time analysis to select a sales associate... | The real-time analysis is utilized to select and send a communication to a sales associate. | ¶118 | col. 22:8-10 |
| (d) sending a communication to the sales associate... wherein the sales representative can then directly interact with the first person... | A partnership with Meredith is cited to show the system identifies when titles sell out, allowing for faster restocks by retail partners (sales associates). | ¶118 | col. 22:11-17 |
Identified Points of Contention
- Scope Questions: A central question for the ’825 Patent infringement theory may be whether an automated alert to a retail partner to "restock" a sold-out item (Compl. ¶118) meets the claim limitation of "utilizing the real time analysis to select a sales associate... wherein the sales representative can then directly interact with the first person." The court may need to determine if a generic restock alert qualifies as "selecting" a specific associate for a customer interaction, as the patent specification appears to describe.
- Technical Questions: For the ’571 Patent, a factual question may arise regarding the nature of the data collected. What evidence does the complaint provide that the accused system's measurement of "impressions, engagement, and reach" (Compl. ¶114) constitutes the gathering of specific "demographic," "sentiment," and "tracking" characteristics as required by the claim?
- Evidentiary Questions: The complaint's allegation for the "providing an opt-out option" element of Claim 1 of the ’571 Patent is made "Upon information and belief." (Compl. ¶93). The factual basis for this element, which is required for infringement, may become a point of dispute.
V. Key Claim Terms for Construction
"sentiment characteristic" (from ’571 Patent, Claim 1)
- Context and Importance: This term's construction is critical because the infringement allegation relies on the accused system's collection of "sentiment characteristics." (Compl. ¶92). The patent's figures depict specific emotional states like "Happy" and "Anger" (Compl. p. 6, FIG. 2), whereas the complaint describes the accused system as measuring more general metrics like "engagement." (Compl. ¶114). The dispute may turn on whether "engagement" falls within the scope of a "sentiment characteristic."
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification refers generally to "facial expression intelligence" which could be argued to encompass a range of customer reactions beyond discrete emotions. (’571 Patent, col. 2:57).
- Evidence for a Narrower Interpretation: The only explicit examples of sentiment in the patent's figures are specific emotions (e.g., Happy: 0.785, Anger: 0). (’571 Patent, FIG. 2). An argument could be made that the term is limited to the recognition of such emotional states.
"select a sales associate from a group of sales associates" (from ’825 Patent, Claim 1)
- Context and Importance: The infringement theory for the ’825 Patent centers on this limitation, which the complaint maps to a function that identifies product sell-outs to enable "faster restocks" by staff. (Compl. ¶118). Practitioners may focus on whether "select" requires an intelligent choice among multiple potential associates based on the customer analysis, or if it can be read more broadly to cover simply notifying any available clerk or staff member about an inventory issue.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification discusses alerting a "nearby employee" and sending a "call for help," which might support a construction that does not require a sophisticated selection process. (’825 Patent, col. 18:32-38).
- Evidence for a Narrower Interpretation: The claim's use of "select... from a group" suggests a narrowing or filtering process. The specification further states the system provides a "profile of the customer to the sales associate so the sales associate can better serve the customer," implying the selection is for the purpose of a personalized human-to-human interaction, not merely a logistical task like restocking. (’825 Patent, col. 18:47-51).
VI. Other Allegations
- Indirect Infringement: The complaint alleges induced infringement for all five patents. It asserts that Defendant, through its partnership with Grocery TV and its own promotions and instructions, encourages, directs, and aids the use of the Accused Products in its stores in a manner that infringes the patents. (e.g., Compl. ¶105-106, ¶130-131).
- Willful Infringement: Willfulness is alleged for all five patents. The complaint bases this on Defendant's alleged knowledge of the patents and infringement "at least as early as the filing of this Complaint" combined with its continued use of the Accused Products. (e.g., Compl. ¶98-99, ¶123-124).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of definitional scope: can the term "sentiment characteristic," which is exemplified in the patent as discrete emotional states, be construed to cover the more general advertising metrics of "impressions" and "engagement" allegedly collected by the accused system?
- A key functional question will be one of operative purpose: does an automated system that alerts retail staff to restock a sold-out product perform the method of "utilizing... real time analysis to select a sales associate" for direct customer interaction, as claimed by the ’825 patent, or is there a fundamental mismatch in the claimed function and the accused functionality?
- An early evidentiary question will likely concern the factual basis for pleading: specifically, what evidence supports the allegation, made only on "information and belief," that the accused system provides a customer "opt-out" option, a required element for infringement of the lead ’571 patent?