DCT

2:24-cv-00919

Alpha Modus Corp v. Brookshire Grocery Co

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I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: 2:24-cv-00919, E.D. Tex., 11/12/2024
  • Venue Allegations: Plaintiff alleges venue is proper because Defendant is registered to do business in Texas and operates multiple "regular and established places of business" under the name Super 1 Foods within the Eastern District of Texas. The complaint also notes Defendant has previously consented to jurisdiction and venue in the district in other matters.
  • Core Dispute: Plaintiff alleges that Defendant’s use of in-store digital advertising displays provided by Grocery TV infringes five patents related to the real-time analysis of consumer behavior and interaction within a retail environment.
  • Technical Context: The technology at issue involves using in-store sensors, such as cameras, to analyze shopper demographics, sentiment, and behavior to deliver targeted advertising, manage inventory, and enhance the in-store customer experience.
  • Key Procedural History: The asserted patents are part of a continuation family sharing the same priority date. The complaint notes that on January 11, 2024, Plaintiff entered into a licensing agreement with GZ6G Technologies Corp. for its patented technology, indicating active monetization of the 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
2019-07-23 ’571 Patent Issued
2020-12-01 ’825 Patent Issued
2021-04-13 ’672 Patent Issued
2021-06-22 ’890 Patent Issued
2022-04-12 ’880 Patent Issued
2024-01-11 Plaintiff announces licensing agreement with 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’s background section describes the challenge faced by brick-and-mortar retailers competing with online stores, particularly the phenomenon of "showrooming," where customers examine products in-store but purchase them online (’571 Patent, col. 1:41-47). These physical retailers lack the real-time customer data that online retailers use to deliver personalized marketing and influence purchasing decisions (Compl. ¶28; ’571 Patent, col. 2:7-16).
  • The Patented Solution: The invention proposes a method using "information monitoring devices," such as video cameras, within a retail location to gather real-time data about shoppers, including their demographics (age, gender), sentiment (e.g., happy, sad), and tracking characteristics (movement, eye tracking) (’571 Patent, Abstract; col. 3:23-44). This information is analyzed in real-time, and a response—such as targeted advertising on a display, a digital coupon, or a communication to a store employee—is provided to enhance the shopping experience and influence a purchase, while also providing an opt-out option for consumers (Compl. ¶30, 31).
  • Technical Importance: The technology aims to equip physical retail environments with the data-driven personalization capabilities common in e-commerce, allowing them to better engage customers at pivotal moments in their purchasing journey (Compl. ¶29).

Key Claims at a Glance

  • The complaint asserts independent Claim 1 (Compl. ¶31, 94).
  • The essential elements of Claim 1 are:
    • (a) Using one or more information monitoring devices, which include video image devices, to gather information about a group of persons at a location.
    • The gathering step includes collecting a demographic characteristic (e.g., gender, age), a sentiment characteristic, and a tracking characteristic (e.g., movement, eye movement).
    • (b) Providing an opt-out option to the persons in the group.
    • (c) Analyzing in real time the gathered information for the persons who have not opted out.
    • (d) Providing a response in real time based on the analyzed information, where the response can be engaging with the person on a display, sending a communication to another person, providing marketing information, or providing a coupon.

U.S. Patent No. 10,853,825 - Method for monitoring and analyzing behavior and uses thereof

The Invention Explained

  • Problem Addressed: Similar to its parent patent, the ’825 Patent addresses the gap in the ability of brick-and-mortar stores to provide the real-time, personalized experiences that online retailers leverage to drive sales (Compl. ¶39; ’825 Patent, col. 2:13-19).
  • The Patented Solution: This invention refines the "response" aspect of the parent technology. After gathering and analyzing a customer's demographic and tracking data in real time, the system uses that analysis to select a specific sales associate from a group of associates and sends a communication to that selected associate (’825 Patent, col. 11:11-18). This communication, containing the gathered data or analysis, empowers the sales representative to "directly interact with the first person in response to the communication," providing informed, personalized assistance (Compl. ¶41, 42).
  • Technical Importance: The patented method focuses on augmenting human interaction in retail by providing sales staff with real-time, data-driven insights about a specific customer they are about to engage (Compl. ¶40).

Key Claims at a Glance

  • The complaint asserts independent Claim 1 (Compl. ¶42, 119).
  • The essential elements of Claim 1 are:
    • (a) Using one or more information monitoring devices (including video devices) to gather information about a first person at a retail store.
    • The gathering step includes collecting a demographic characteristic (gender, age) and a tracking characteristic (movement, eye movement) of the first person.
    • (b) Analyzing this information in real time to generate an analysis of the first person.
    • (c) Utilizing the real-time analysis to select a sales associate from a group of sales associates.
    • (d) Sending a communication to the selected sales associate that includes at least a portion of the gathered information or the analysis, enabling the associate to directly interact with the person.

U.S. Patent No. 10,977,672 - Method And System For Real-Time Inventory Management, Marketing, And Advertising In A Retail Store

  • Patent Identification: U.S. Patent No. 10,977,672, “Method And System For Real-Time Inventory Management, Marketing, And Advertising In A Retail Store,” issued April 13, 2021 (Compl. ¶43, 46).
  • Technology Synopsis: The patent describes a system for integrated, real-time inventory management and marketing at a specific display location. A server uses image recognition to identify the inventory of products at a display, determines and shows pricing information on that display, receives real-time data about a customer at the location, and generates a behavioral-analytics-based promotion for that customer (Compl. ¶48, 52; ’672 Patent, Abstract).
  • Asserted Claims: Claim 1 (Compl. ¶53, 142).
  • Accused Features: The complaint alleges the Accused Products constitute a system that performs the claimed functions of real-time inventory management and advertising, including identifying products via image recognition, displaying information, determining pricing, receiving real-time customer data, and generating promotions based on behavioral analytics (Compl. ¶139, 141).

U.S. Patent No. 11,042,890 - Method And System For Customer Assistance In A Retail Store

  • Patent Identification: U.S. Patent No. 11,042,890, “Method And System For Customer Assistance In A Retail Store,” issued June 22, 2021 (Compl. ¶54, 57).
  • Technology Synopsis: The patent claims a method for customer assistance that involves using monitoring devices to gather "object identification information" of a product a person is interested in, as well as "sentiment information" of the person with respect to that product. This combined information is analyzed in real time to manage inventory and provide a response, such as directing a person to a product location or providing marketing information (Compl. ¶62, 63).
  • Asserted Claims: Claim 1 (Compl. ¶63, 166).
  • Accused Features: The complaint alleges the Accused Products perform the claimed method of gathering object identification and sentiment information, analyzing it in real time, and providing a corresponding response (Compl. ¶163-165).

U.S. Patent No. 11,301,880 - Method And System For Inventory Management In A Retail Store

  • Patent Identification: U.S. Patent No. 11,301,880, “Method And System For Inventory Management In A Retail Store,” issued April 12, 2022 (Compl. ¶64, 67).
  • Technology Synopsis: The patent describes a method for inventory management based on shopper interactions. The system gathers "product interaction information" (e.g., a product being picked up) and "object identification information" for products that shoppers interact with. This data is analyzed in real time to manage inventory, triggering responses such as sending a communication to a retail person to check inventory levels or to restock a product (Compl. ¶73, 74).
  • Asserted Claims: Claim 1 (Compl. ¶74, 192).
  • Accused Features: The complaint alleges the Accused Products perform the claimed method by gathering product interaction information, analyzing it in real time, and sending communications to retail personnel regarding inventory of the interacted-with products (Compl. ¶190, 191).

III. The Accused Instrumentality

Product Identification

  • The accused instrumentalities are the digital display systems provided by Grocery TV and implemented in Defendant’s Brookshire and Super 1 Foods retail stores (Compl. ¶77, 81). The complaint refers to them as the "Accused Products" and "digital smart screens" (Compl. ¶81, 89).

Functionality and Market Context

  • The Accused Products are described as motion-activated digital displays placed in checkout aisles that are part of a larger advertising platform (Compl. ¶79). This platform allegedly uses "computer vision technology" and "AI technology" to measure advertising metrics such as impressions and engagement in real time (Compl. ¶114, 163). The complaint alleges these systems are used to launch programmatic and contextually relevant advertising campaigns, such as ads for meal ingredients when a customer is in the grocery section or weather-triggered advertisements (Compl. ¶91, p. 23). A screenshot in the complaint shows mock-ups of weather-triggered campaigns on the displays, illustrating how external data can be used to serve targeted ads (Compl. p. 22). The complaint further alleges that the system is used for inventory management, for example through a partnership with Meredith to identify when magazine titles sell out to allow for faster restocks (Compl. ¶118).

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 to gather information about persons in a group of persons at a location, wherein... (iii) the one or more information monitoring devices 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. ¶90 col. 3:23-44
(iv) the step of gathering information... comprises gathering a demographic characteristic of the persons... The Accused Products allegedly collect demographic characteristics of persons in proximity to the devices. ¶92 col. 9:56-64
(v) the step of gathering information... comprises gathering a sentiment characteristic of the persons... The Accused Products allegedly collect sentiment characteristics of persons in proximity to the devices. ¶92 col. 9:56-64
(vi) the step of gathering information... comprises gathering a tracking characteristic of the persons... The Accused Products allegedly collect tracking characteristics of persons in proximity to the devices. ¶92 col. 10:1-8
(b) providing an opt-out option to the persons in the group of persons... Upon information and belief, the Accused Products have signage providing for the ability of persons to opt out of promotions. ¶93 col. 11:34-40
(c) analyzing in real time... the information gathered by the information monitoring devices of the persons in the group of persons, except for the subset of opt-out persons... The Accused Products are operably connected to a server and/or databases that analyze the gathered information, enabling dynamic, real-time messaging. ¶91, p. 23 col. 4:5-6
(d) providing a response in real time based upon the analyzed information... The system provides responses such as displaying targeted, contextual, or weather-triggered advertising campaigns in real time. ¶91, p. 23 col. 4:41-46
  • Identified Points of Contention:
    • Evidentiary Questions: The complaint’s allegations that the accused system gathers specific "demographic," "sentiment," and "tracking" characteristics are stated conclusorily (Compl. ¶92). A potential point of contention may be whether the "computer vision technology" allegedly used to validate ad impressions (Compl. ¶163) actually collects and analyzes these specific claimed characteristics, or if it merely detects presence and attention. The factual basis for the alleged "opt-out option" is pleaded "upon information and belief," suggesting it may also be a point of factual dispute requiring discovery (Compl. ¶93).
    • Scope Questions: A central question may be whether delivering "contextual ads" (e.g., based on store location) or "weather-triggered" ads (Compl. ¶91, p. 23) meets the claim requirement of providing a response "based upon the analyzed information" which must include the demographic, sentiment, and tracking characteristics of the persons themselves.

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 in a group of persons at a retail store... The Accused Products utilize information monitoring devices, including video image devices, to gather demographic and tracking information about persons in Brookshire’s stores. ¶114, 116 col. 3:23-28
(b) analyzing in real time... the information gathered by the information monitoring devices of the first person to generate a real time analysis of the first person... The Accused Products analyze the gathered information in real time. Grocery TV's marketing states its AI technology is used to measure metrics in real time. ¶117, p. 26 col. 4:5-6
(c) utilizing the real time analysis to select a sales associate from a group of sales associates at the retail store The real-time analysis is allegedly utilized to send communications for store personnel to perform tasks. ¶118 col. 4:37-40
(d) sending a communication to the sales associate that comprises at least a portion of (A) the information gathered... (B) the real time analysis... wherein the sales representative can then directly interact with the first person... The system allegedly sends a communication to identify when products sell out, allowing for faster restocks by retail partners. ¶118 col. 11:14-18
  • Identified Points of Contention:
    • Scope Questions: A principal issue will likely be the mismatch between the claim language and the alleged infringing functionality. The claim requires using a customer-specific analysis to "select a sales associate" for the purpose of enabling a "direct[] interact[ion] with the first person." The complaint’s supporting allegation, however, describes a general inventory management function: alerting staff when a product sells out to trigger a restock (Compl. ¶118). This raises the question of whether an inventory alert can be construed as "selecting a sales associate" and whether restocking a shelf constitutes a "direct interaction with the first person" as required by the claim.
    • Technical Questions: What evidence does the complaint provide that the alleged restocking communication is based on a real-time analysis of a specific person's demographics and tracking characteristics, as required by claim steps (a) and (b)? The allegation appears to describe a system triggered by aggregate sales data (a title "sell[ing] out"), not by the analysis of an individual shopper.

V. Key Claim Terms for Construction

For the ’571 Patent

  • The Term: "sentiment characteristic"
  • Context and Importance: This term is critical because the infringement allegation is conclusory (Compl. ¶92). Defendant may argue that the accused system's function of measuring ad "impressions" or "engagement" does not equate to detecting a "sentiment characteristic." The construction of this term may determine whether general attention-tracking meets this specific claim limitation.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The specification refers generally to determining a person's "sentiment or reaction" ('571 Patent, col. 9:15-16), which could be argued to encompass general states of engagement or attentiveness.
    • Evidence for a Narrower Interpretation: Figure 2 of the patent, which is reproduced in the complaint (Compl. p. 6), provides a specific example of sentiment analysis, showing quantified emotional states such as "Happy: 0.785" and "Anger: 0." This could support a narrower construction limited to the detection of specific human emotions.

For the ’825 Patent

  • The Term: "select a sales associate"
  • Context and Importance: This term is central to the infringement theory for the ’825 Patent. Plaintiff's case may depend on whether an automated inventory alert to a stock clerk can be considered "select[ing] a sales associate."
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The patent does not explicitly define "select" or "sales associate," which may leave room for arguing a broad, plain-meaning interpretation where any store employee is a "sales associate" and any automated alert is a "selection."
    • Evidence for a Narrower Interpretation: The claim requires the selection to be made from a group of associates and for the purpose of enabling a direct interaction with the customer. The specification describes the system sending a communication "to signal the employee to interact with the customer" (’825 Patent, col. 4:37-40), suggesting a customer-facing role. This context suggests "select" implies a choice based on customer-specific data and "sales associate" refers to personnel intended for customer interaction, not merely operational tasks like restocking.

VI. Other Allegations

  • Indirect Infringement: The complaint pleads induced infringement for all five patents (Counts II, IV, VI, VIII, X). The allegations state that Defendant encourages, directs, and aids the use and operation of the Accused Products in its stores in a manner that infringes the patents (e.g., Compl. ¶106, 131).
  • Willful Infringement: Willfulness is alleged for all five patents. The basis is primarily post-suit knowledge, alleging Defendant has been aware of the patents and infringement "at least as early as the filing of this Complaint" but has continued its conduct (e.g., Compl. ¶98, 123). The complaint also asserts willful blindness based on the business relationship between Defendant and Grocery TV (e.g., Compl. ¶99, 124).

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

  • A core issue will be one of definitional scope: can the general capabilities of "computer vision" and "AI technology" for measuring advertising impressions, as described in the Accused Products' marketing materials, be shown to meet the specific claim requirements of gathering "sentiment characteristics" ('571 Patent) or "product interaction information" ('880 Patent)? The case may turn on whether Plaintiff can produce evidence that the accused system performs these granular functions, beyond simply detecting human presence.
  • A second key question will be one of functional mismatch: does an automated alert for inventory restocking (as alleged for the '825 and '880 patents) satisfy claim limitations requiring a system to "select a sales associate" for a "direct[] interact[ion] with the first person"? The resolution of this issue will likely depend on claim construction and a factual analysis of whether a general operational function can be mapped onto claims directed to specific, personalized customer engagement.