DCT
2:25-cv-00923
Alpha Modus Corp v. Kroger Co The
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Alpha Modus, Corp. (Florida)
- Defendant: The Kroger Co. (Ohio)
- Plaintiff’s Counsel: Prince Lobel Tye LLP
- Case Identification: 2:25-cv-00923, E.D. Tex., 08/29/2025
- Venue Allegations: Plaintiff alleges venue is proper because Defendant operates numerous regular and established places of business within the Eastern District of Texas and has previously consented to venue in the district.
- Core Dispute: Plaintiff alleges that Defendant’s in-store digital platforms and analytics systems infringe a portfolio of patents related to the real-time monitoring and analysis of consumer behavior for targeted marketing and inventory management.
- Technical Context: The technology at issue involves using in-store monitoring devices, such as video cameras, to collect and analyze data about shoppers—including demographics, emotional sentiment, and product interactions—to dynamically deliver personalized marketing and manage store operations.
- Key Procedural History: The complaint alleges that Defendant was made aware of the asserted patent portfolio in a prior lawsuit filed by Plaintiff in January 2024 (Case No. 2:24-cv-00022-JRG-RSP), which concerned different accused technology and settled in April 2025. This prior litigation is cited as the basis for Plaintiff's allegations of willful infringement.
Case Timeline
| Date | Event |
|---|---|
| 2013-07-19 | Earliest Priority Date for Asserted Patents and Application |
| 2019-07-23 | ’571 Patent Issued |
| 2021-04-13 | ’672 Patent Issued |
| 2021-06-22 | ’890 Patent Issued |
| 2021-06-29 | ’120 Patent Issued |
| 2022-04-12 | ’880 Patent Issued |
| 2024-01-24 | Prior Lawsuit Filed by Alpha Modus against Kroger |
| 2024-07-02 | ’731 Patent Issued |
| 2025-01-23 | ’975 Application Published |
| 2025-04-01 | Prior Lawsuit Settled (approximate date) |
| 2025-04-22 | ’975 Application Claims Allowed |
| 2025-07-08 | ’121 Patent Issued |
| 2025-07-08 | ’975 Application Issue Fee Paid |
| 2025-08-29 | Complaint Filing Date |
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, specifically the phenomenon of “showrooming,” where consumers inspect products in-store but purchase them online from competitors (’571 Patent, col. 1:40-47). Retailers lack the real-time customer data that online platforms use to personalize shopping experiences and influence purchasing decisions (’571 Patent, col. 2:8-16).
- The Patented Solution: The invention proposes a method to monitor shoppers in a physical location using devices like video cameras to gather real-time data on their demographics (age, gender), emotional sentiment (happy, sad), and movements (’571 Patent, Abstract; col. 10:9-19). This data is then analyzed to provide a personalized response, such as a targeted advertisement on a nearby display or a digital coupon, while also providing an opt-out option for consumers (’571 Patent, col. 22:8-22).
- Technical Importance: The technology aimed to provide physical retailers with the data-driven marketing capabilities previously exclusive to e-commerce, enabling them to influence consumer behavior at the critical moment of decision-making in the store (Compl. ¶28).
Key Claims at a Glance
- The complaint asserts at least Claim 1 of the ’571 Patent (Compl. ¶125).
- 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.
- Analyzing the gathered information in real time for persons who have not opted out.
- Providing a response in real time based on the analysis, such as engaging the person with a display, providing marketing information, or offering a coupon.
U.S. Patent No. 10,977,672 - Method And System For Real-Time Inventory Management, Marketing, And Advertising In A Retail Store
The Invention Explained
- Problem Addressed: The patent identifies a gap in the ability of brick-and-mortar retailers to provide the real-time, personalized customer experiences common in online retail, which limits their ability to compete effectively (Compl. ¶38).
- The Patented Solution: The invention describes a system comprising a server that performs several integrated functions at a visual display location. It uses image recognition to identify the inventory of products on the display, determines and displays current pricing, receives real-time data about a nearby customer, and generates a promotion for that customer based on behavioral analytics (’672 Patent, col. 21:46-22:5).
- Technical Importance: This approach links real-time inventory awareness directly with personalized, behavior-based promotions, aiming to create more relevant consumer engagement and increase in-store sales (Compl. ¶39).
Key Claims at a Glance
- The complaint asserts at least Claim 1 of the ’672 Patent (Compl. ¶149).
- Essential elements of independent claim 1 include:
- A server with processors and memory storing instructions to:
- Identify, via image recognition, an inventory of retail products at a visual display location.
- Display information about those products on the visual display.
- Determine and display, in real-time, current pricing information for the products.
- Receive real-time data of a customer using information monitoring devices.
- Generate a promotion for the customer based on behavioral analytics.
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. ¶42, 45).
- Technology Synopsis: The patent addresses the need for brick-and-mortar retailers to adapt to consumer behavior influenced by digital technology (Compl. ¶48). It claims a method for using monitoring devices to gather information about a person’s product interest (object identification) and their sentiment towards that product, analyzing the information in real-time, and providing a response such as directing them to a product location or offering a coupon (Compl. ¶50-51).
- Asserted Claims: At least Claim 1 (Compl. ¶173).
- Accused Features: The Accused Products allegedly use monitoring devices to gather object identification and sentiment information, analyze it in real time, and provide responses like engaging the person or offering coupons (Compl. ¶170-172).
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. ¶52, 55).
- Technology Synopsis: The patent targets the challenge of managing inventory in response to real-time shopper behavior to minimize stockouts and enhance satisfaction (Compl. ¶58, 60). The claimed method involves using video devices to gather information about product interactions (e.g., picking up a product) and object identification, analyzing this data to manage inventory, and sending a real-time response, such as a communication to a store employee to restock a product (Compl. ¶61-62).
- Asserted Claims: At least Claim 1 (Compl. ¶199).
- Accused Features: The Accused Products are alleged to gather product interaction and object identification information, analyze it in real time, and provide inventory-related responses (Compl. ¶197-198).
U.S. Patent No. 11,049,120 - Method And System For Generating A Layout For Placement Of Products In A Retail Store
- Patent Identification: U.S. Patent No. 11,049,120, Method And System For Generating A Layout For Placement Of Products In A Retail Store, issued June 29, 2021 (Compl. ¶63, 65).
- Technology Synopsis: The patent addresses the need for retailers to optimize the physical layout of products in a store based on actual consumer behavior (Compl. ¶69). The invention claims a method for gathering traffic information (shopper movement, stops) and product interaction information, analyzing it to generate a layout analysis, and using that analysis to modify the store’s product layout (Compl. ¶71-72).
- Asserted Claims: At least Claim 1 (Compl. ¶223).
- Accused Features: The Accused Products are alleged to gather shopper traffic and product interaction data to generate layout information and make recommendations for improving the store layout (Compl. ¶221-222).
U.S. Patent No. 12,026,731 - Method For Personalized Marketing And Advertising Of Retail Products
- Patent Identification: U.S. Patent No. 12,026,731, Method For Personalized Marketing And Advertising Of Retail Products, issued July 2, 2024 (Compl. ¶73, 76).
- Technology Synopsis: The patent addresses the challenge of delivering personalized marketing tied to a shopper's in-store behavior and location (Compl. ¶79). The claimed method involves analyzing a shopper's product interaction history, tracking their current location, and providing a communication to an interactive device with a relevant retail store location and a targeted product communication, such as a coupon or purchase option (Compl. ¶82-83).
- Asserted Claims: At least Claim 1 (Compl. ¶247).
- Accused Features: The Accused Products, including Kroger Precision Marketing, are alleged to analyze consumer shopping activities, track consumer locations, and generate real-time communications like promotions, coupons, and purchase options (Compl. ¶242, 245).
U.S. Patent No. 12,354,121 - Method And System For Shopping In A Retail Store
- Patent Identification: U.S. Patent No. 12,354,121, Method And System For Shopping In A Retail Store, issued July 8, 2025 (Compl. ¶84, 86).
- Technology Synopsis: The patent addresses the need to optimize the purchase experience by tracking items a customer retains for purchase and providing a seamless checkout process (Compl. ¶90). The claimed method involves identifying a person, gathering their shopping information (traffic, product interactions), analyzing it to maintain a list of retained products, tracking the person to a point-of-sale area, and interfacing with a payment system (Compl. ¶92-93).
- Asserted Claims: At least Claim 1 (Compl. ¶271).
- Accused Features: The Accused Products are alleged to gather shopping information, track shoppers, and allow for in-cart or point-of-sale payments (Compl. ¶269-270).
U.S. Patent Application No. 18/905,975
- Patent Identification: U.S. Patent Application No. 18/905,975, published January 23, 2025, with allowed claims (Compl. ¶94-97).
- Technology Synopsis: The application addresses challenges in ensuring checkout accuracy by comparing items a shopper retained with items they are purchasing (Compl. ¶101, 103). The claimed method involves gathering information on products a shopper retained, tracking the shopper to a point-of-sale area, identifying products being purchased, comparing the lists of retained and purchased products, and sending a communication to a sales associate in response to the comparison (Compl. ¶105).
- Asserted Claims: At least Claim 27 (Compl. ¶291).
- Accused Features: The Accused Products are alleged to generate and compare lists of retained and purchased products in real time and use these comparisons to engage sales associates (Compl. ¶294-295).
III. The Accused Instrumentality
Product Identification
- The complaint broadly defines the “Accused Products” as a suite of digital in-store and online systems, including the Barrows digital in-store platform, the Everseen Visual AI anti-theft platform, Kroger Precision Marketing and 84.51° data analytics, KroGO smart carts, and EDGE Shelving (Compl. ¶109, 112).
Functionality and Market Context
- The complaint alleges these technologies function collectively to monitor and analyze customer behavior in real time. For example, the Barrows platform is alleged to incorporate cameras and audience measurement technology (Compl. ¶109). A provided image shows an in-store digital display located above an aisle (Compl. ¶109, p. 29). The Everseen Visual AI platform is described as capturing video at self-checkout, integrating it with POS data feeds, and alerting store associates via a mobile device if a shopper fails to scan an item (Compl. ¶110). These systems allegedly provide Kroger with substantial financial gains and competitive advantages in the retail market (Compl. ¶116).
IV. Analysis of Infringement Allegations
’571 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| using one or more information monitoring devices to gather information about persons...wherein the...devices comprise one or more video image devices | The Accused Products utilize video image devices to gather information about persons in Kroger’s retail stores. | ¶121 | col. 21:44-46 |
| the step of gathering information...comprises gathering a demographic characteristic of the persons | The Accused Products collect demographic characteristics of persons in proximity to the monitoring devices. | ¶123 | col. 21:50-58 |
| the step of gathering information...comprises gathering a sentiment characteristic of the persons | The Accused Products collect sentiment characteristics of persons in proximity to the monitoring devices. | ¶123 | col. 21:59-64 |
| the step of gathering information...comprises gathering a tracking characteristic of the persons | The Accused Products collect tracking characteristics of persons in proximity to the monitoring devices. | ¶123 | col. 22:1-7 |
| providing an opt-out option to the persons | The Accused Products provide an opt-out option to persons in proximity to the devices. | ¶124 | col. 22:8-12 |
| analyzing in real time...the information gathered...of the persons...except for the subset of opt-out persons who have affirmatively opted-out | The Accused Products analyze the information of those who have not opted out. | ¶124 | col. 22:13-22 |
| providing a response in real time based upon the analyzed information gathered by the information monitoring devices | The Accused Products provide real-time responses such as targeted promotions based on the collected data. | ¶114 | col. 22:23-27 |
- Identified Points of Contention:
- Technical Questions: The complaint alleges the collection of “sentiment characteristics,” a key element of Claim 1 (Compl. ¶123). A central question may be what technical evidence exists that the accused systems perform analysis of human emotion (e.g., happy, sad) as depicted in the patent (’571 Patent, Fig. 2), rather than simply tracking presence, gaze, or movement.
- Scope Questions: The claim requires “providing an opt-out option” (Compl. ¶30). The analysis may focus on what specific mechanism, if any, the accused systems provide for shoppers to affirmatively opt out of video monitoring and how that mechanism corresponds to the claim requirement.
’672 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| a server comprising...memory storing...instructions that...cause the server to: | The Accused Products utilize a server that executes instructions to perform the claimed functions. | ¶147 | col. 21:48-52 |
| identify, via image recognition, an inventory of one or more retail products physically located at the first visual display location | The Accused Products perform functions including identifying, via image recognition, an inventory of retail products physically located at a display location. | ¶148 | col. 21:53-56 |
| display, on the first visual display, information about one or more of the one or more retail products | The Accused Products display information about the products. | ¶148 | col. 21:57-60 |
| determine, in real-time, current pricing information | The Accused Products determine current pricing information. | ¶148 | col. 21:61-64 |
| receive, using one or more information monitoring devices...real-time data of a customer | The Accused Products receive real-time data of a customer using information monitoring devices. | ¶148 | col. 22:1-3 |
| generate a promotion of one or more of the...retail products...for the customer based on behavioral analytics | The Accused Products generate promotions for the customer based on behavioral analytics. | ¶148 | col. 22:4-5 |
- Identified Points of Contention:
- Scope Questions: Claim 1 requires a system to “identify, via image recognition, an inventory” at a display location (Compl. ¶41). The complaint identifies the Everseen anti-theft system, which detects unscanned items at checkout, as an infringing instrumentality (Compl. ¶110, 112). A potential point of dispute is whether detecting a single missed item at a checkout counter meets the claim limitation of identifying an “inventory” at a “visual display location,” which the patent specification suggests could be a product shelf (’672 Patent, Abstract).
- Technical Questions: What evidence does the complaint provide that the accused systems “generate a promotion... based on behavioral analytics” as a single, integrated process required by the claim? The complaint lists various marketing and AI platforms, but does not detail how they are integrated to perform this specific claimed function (Compl. ¶112, 148).
V. Key Claim Terms for Construction
The Term: "sentiment characteristic" (from ’571 Patent, Claim 1)
Context and Importance: This term is critical because infringement of Claim 1 requires gathering more than just demographic or tracking data; it requires analyzing a person’s emotional state. Practitioners may focus on this term because the complaint alleges its collection (Compl. ¶123) but provides no factual support describing how Kroger’s systems measure emotion. The viability of the infringement claim may depend on whether this term is construed narrowly to mean specific emotions or broadly to cover any non-neutral shopper reaction.
Intrinsic Evidence for Interpretation:
- Evidence for a Narrower Interpretation: The patent’s Figure 2 provides a specific, non-limiting example of sentiment analysis, listing quantitative values for “Anger,” “Happy,” “Sad,” and “Surprise” (’571 Patent, Fig. 2). This graphical example could support a definition limited to the recognition of specific human emotions.
- Evidence for a Broader Interpretation: The claim language itself does not define the term or limit it to specific emotions. A party might argue that any data indicating a shopper's reaction or state of mind, such as a prolonged stare indicating interest or a quick turn-away indicating disinterest, could be considered a "sentiment characteristic."
The Term: "identify... an inventory of one or more retail products" (from ’672 Patent, Claim 1)
Context and Importance: The infringement theory for the ’672 Patent may turn on the definition of this term. The accused Everseen system is described as an anti-theft tool at checkout (Compl. ¶110). Whether this system infringes could depend on if "identify... an inventory" is construed to cover the act of identifying a single item that a customer failed to scan, or if it is limited to a broader cataloging of multiple products available for sale on a shelf.
Intrinsic Evidence for Interpretation:
- Evidence for a Narrower Interpretation: The patent’s Abstract describes the invention in the context of “object identification of goods on shelves,” suggesting a system that surveys products available for sale in their display location, not a system that checks for items during a transaction. The term “inventory” itself often implies a plurality or stock of goods.
- Evidence for a Broader Interpretation: The claim requires identifying an inventory of “one or more” retail products, which a party could argue explicitly contemplates the identification of a single product. Further, the claim specifies the location as a “visual display location,” which could arguably encompass a self-checkout screen where items are presented for scanning.
VI. Other Allegations
- Indirect Infringement: The complaint alleges induced infringement for all asserted patents. The factual basis is that Kroger implemented the Accused Products in its stores and encourages, directs, and aids customers and staff to use them in a manner that allegedly practices the patented methods (e.g., Compl. ¶135, 138).
- Willful Infringement: Willfulness is alleged for all asserted patents. The complaint bases this allegation on Kroger’s alleged knowledge of the patents from a prior lawsuit filed by Alpha Modus in January 2024, which involved some of the same patents (e.g., Compl. ¶129, 153). The complaint alleges that despite this knowledge, Kroger continued its infringing activities, demonstrating blatant disregard for Plaintiff’s patent rights (e.g., Compl. ¶130).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of evidentiary proof: What evidence will be presented to demonstrate that the Accused Products perform the specific functions recited in the claims, such as analyzing a shopper's "sentiment characteristic" or using "image recognition" to identify a product "inventory," beyond the conclusory allegations in the complaint?
- A key legal question will be one of definitional scope: Can claim terms rooted in the patent's context of in-aisle, pre-purchase behavioral analysis and marketing (e.g., "identify... an inventory," "sentiment characteristic") be construed to cover the functionality of an anti-theft system operating at a self-checkout terminal?
- A central question for damages will be willfulness: Given the prior litigation between the parties, did Defendant possess the requisite knowledge and intent to be found to have willfully infringed, potentially leading to enhanced damages?