DCT
2:25-cv-00923
Alpha Modus Corp v. Kroger Co The
Key Events
Amended Complaint
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., 11/07/2025
- Venue Allegations: Plaintiff alleges venue is proper because Defendant is registered to do business in Texas, transacts business in the Eastern District of Texas, and operates multiple regular and established places of business (retail stores) within the district. The complaint also notes that Defendant has previously consented to jurisdiction and venue in the district in prior litigation.
- Core Dispute: Plaintiff alleges that Defendant’s integrated retail ecosystem—encompassing in-store digital displays, customer analytics platforms, smart carts, and anti-theft systems—infringes nine patents related to the real-time monitoring and analysis of consumer behavior in retail environments.
- Technical Context: The technology at issue involves using in-store sensors, primarily video cameras, to collect and analyze data about shoppers—such as demographics, movement, and product interactions—to dynamically manage inventory, optimize store layouts, and deliver personalized marketing.
- Key Procedural History: The complaint states that Plaintiff previously sued Defendant in January 2024 for infringement of three of the same patents asserted in this case ('571, '672, '890 Patents) related to "Cooler Screens" technology. That lawsuit reportedly settled in April 2025. This history is presented as the basis for Plaintiff’s allegations of pre-suit knowledge and willful infringement.
Case Timeline
| Date | Event |
|---|---|
| 2013-07-19 | Earliest Priority Date for all Asserted Patents |
| 2019-07-23 | ’571 Patent Issued |
| 2020-12-01 | ’825 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 | Plaintiff files prior infringement suit against Defendant |
| 2024-07-02 | ’731 Patent Issued |
| 2025-04-01 | Parties settle prior infringement suit (date specified as April 2025) |
| 2025-07-08 | ’121 Patent Issued |
| 2025-09-23 | ’718 Patent Issued |
| 2025-11-07 | 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"
Issued July 23, 2019
The Invention Explained
- Problem Addressed: The patent describes the challenge brick-and-mortar retailers face from online competition and "showrooming," where customers examine products in-store but purchase them online. This is attributed to the lack of consumer data available to physical retailers to personalize the shopping experience in real-time ('571 Patent, col. 1:41-48, col. 2:8-16).
- The Patented Solution: The invention proposes a method using "information monitoring devices," such as video cameras, to gather real-time data on shoppers, including demographics (age, gender), sentiment (e.g., happy, sad), and tracking information (movement, eye movement). This data is analyzed to provide immediate, tailored responses, such as displaying targeted advertising on in-store screens or issuing digital coupons, to influence purchasing decisions at the point of decision ('571 Patent, Abstract; Fig. 2; col. 3:23-34).
- Technical Importance: The technology aims to provide physical retailers with the real-time, data-driven personalization tools commonly used by online retailers to make the in-store experience more engaging and competitive ('571 Patent, col. 2:54-62).
Key Claims at a Glance
- The complaint asserts at least Claim 1 (Compl. ¶144).
- Independent Claim 1 requires the steps of:
- Using one or more information monitoring devices (including video image devices) to gather information about persons at a location, including their demographic, sentiment, and tracking characteristics.
- Providing an opt-out option to the persons.
- Analyzing in real time the gathered information for 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., an employee), providing marketing/advertising, or providing a coupon.
- The complaint does not explicitly reserve the right to assert dependent claims but makes general allegations of infringement of the ’571 Patent.
U.S. Patent No. 10,853,825 - "Method for monitoring and analyzing behavior and uses thereof"
Issued December 1, 2020
The Invention Explained
- Problem Addressed: The patent addresses the same competitive pressures faced by brick-and-mortar retail, noting the gap in their ability to provide the real-time, personalized customer experiences leveraged by online retailers ('825 Patent, col. 1:41-54, col. 2:30-41).
- The Patented Solution: This invention discloses a method that also uses monitoring devices to gather shopper demographic and tracking information. However, instead of primarily triggering an automated on-screen response, the system performs a real-time analysis to "select a sales associate" and then sends a communication to that associate, enabling them to "directly interact with the first person in response to the communication." This puts a human employee "in the loop," armed with data-driven insights ('825 Patent, Abstract; Fig. 10; col. 10:32-41).
- Technical Importance: The technology seeks to enhance the value of in-person sales staff by equipping them with real-time analytics about customer behavior, bridging the gap between automated data collection and human interaction ('825 Patent, col. 18:20-29).
Key Claims at a Glance
- The complaint asserts at least Claim 1 (Compl. ¶169).
- Independent Claim 1 requires the steps of:
- Using one or more information monitoring devices (including video image devices) to gather information about a "first person" in a retail store, including their demographic and tracking characteristics.
- 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 analysis, enabling the associate to directly interact with the person.
- The complaint does not explicitly reserve the right to assert dependent claims but makes general allegations of infringement of the ’825 Patent.
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
- Patent Identification: U.S. Patent No. 10,977,672 (Compl. ¶¶41, 44).
- Technology Synopsis: The patent describes a system for real-time management at a specific visual display location in a store. It claims a server that uses image recognition to identify inventory on a shelf, displays product and pricing information on a screen, receives real-time data about a customer at that location, and generates a promotion for that customer based on behavioral analytics ('672 Patent, Claim 1).
- Asserted Claims: At least Claim 1 is asserted (Compl. ¶192).
- Accused Features: The complaint specifically accuses the "digital smart carts of the Accused Products" of infringing the ’672 Patent (Compl. ¶188).
U.S. Patent No. 11,042,890 - "Method And System For Customer Assistance In A Retail Store"
Issued June 22, 2021
- Patent Identification: U.S. Patent No. 11,042,890 (Compl. ¶¶52, 55).
- Technology Synopsis: This patent claims a method for providing customer assistance by gathering "object identification information" of a product a person is interested in, as well as the person's "sentiment information" with respect to that product. The information is analyzed in real-time to manage inventory and provide a response, such as sending a communication to the person or engaging them via a display ('890 Patent, Claim 1).
- Asserted Claims: At least Claim 1 is asserted (Compl. ¶216).
- Accused Features: The complaint alleges infringement by the broader "Accused Products" ecosystem, which is alleged to gather object identification and sentiment information (Compl. ¶¶211, 214).
U.S. Patent No. 11,301,880 - "Method And System For Inventory Management In A Retail Store"
Issued April 12, 2022
- Patent Identification: U.S. Patent No. 11,301,880 (Compl. ¶¶62, 65).
- Technology Synopsis: The technology focuses on real-time inventory management based on shopper interactions. It claims a method of gathering "product interaction information" (e.g., items picked up, items carried away) and analyzing it to manage inventory at specific "product points" like shelves and end caps, triggering responses such as a communication to a retail person to check inventory or restock an item ('880 Patent, Claim 1).
- Asserted Claims: At least Claim 1 is asserted (Compl. ¶242).
- Accused Features: The complaint alleges infringement by the "Accused Products" generally, which are alleged to gather product interaction information to manage inventory (Compl. ¶¶235, 240).
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
- Patent Identification: U.S. Patent No. 11,049,120 (Compl. ¶¶73, 75).
- Technology Synopsis: This patent claims a method for optimizing store layout. It involves gathering "traffic information" (shopper movement, stops) and "product interaction information," analyzing this data to generate a "layout analysis," and then utilizing that analysis to modify the store's product layout ('120 Patent, Claim 1).
- Asserted Claims: At least Claim 1 is asserted (Compl. ¶266).
- Accused Features: The complaint alleges infringement by systems including the "Kroger Assortment & Space Recommender (KASpR)," which develops "store-specific recommendations" to allocate space (Compl. ¶130), and the digital smart carts (Compl. ¶261).
U.S. Patent No. 12,026,731 - "Method For Personalized Marketing And Advertising Of Retail Products"
Issued July 2, 2024
- Patent Identification: U.S. Patent No. 12,026,731 (Compl. ¶¶83, 86).
- Technology Synopsis: The technology describes a method for personalized marketing that involves obtaining an "information analysis" of a person's shopping activities, tracking the person's location in-store, and then providing a targeted "product communication" (e.g., marketing, coupon, purchase option) to an interactive device based on that location and analysis ('731 Patent, Claim 1).
- Asserted Claims: At least Claim 1 is asserted (Compl. ¶290).
- Accused Features: The complaint specifically points to Kroger Precision Marketing (“KPM”) and 84.51° data analytics platforms as infringing instrumentalities (Compl. ¶285).
U.S. Patent No. 12,354,121 - "Method And System For Shopping In A Retail Store"
Issued July 8, 2025
- Patent Identification: U.S. Patent No. 12,354,121 (Compl. ¶¶94, 96).
- Technology Synopsis: This patent focuses on a "scan-as-you-go" or seamless checkout process. It claims a method of identifying a person, gathering shopping information including products "picked up" and "carried away," analyzing this to maintain a list of "retained" products, tracking the person to a point-of-sale area, and interfacing with a payment system ('121 Patent, Claim 1).
- Asserted Claims: At least Claim 1 is asserted (Compl. ¶314).
- Accused Features: The complaint alleges infringement by the general "Accused Products" (Compl. ¶309), with specific allegations that may read on technologies like KroGO smart carts which allow for seamless shopping and checkout experiences (Compl. ¶127).
U.S. Patent No. 12,423,718 - "Methods And Systems For Providing Customer Assistance In A Retail Store"
Issued September 23, 2025
- Patent Identification: U.S. Patent No. 12,423,718 (Compl. ¶¶104, 106).
- Technology Synopsis: The patent describes a method that involves generating a list of products a shopper "retained" while shopping and a second list of products being "being-purchased" at the point-of-sale. The system compares these two lists and, in response to the comparison, selects a sales associate and sends them a communication, presumably to resolve any discrepancies ('718 Patent, Claim 1).
- Asserted Claims: At least Claim 1 is asserted (Compl. ¶339).
- Accused Features: The complaint alleges infringement by the general "Accused Products" ecosystem (Compl. ¶333), which may implicate the Everseen Visual AI platform used at self-checkout to detect unscanned items (Compl. ¶124).
III. The Accused Instrumentality
Product Identification
The complaint collectively refers to the accused instrumentalities as the "Accused Products," defining them as "the Kroger retail ecosystem" (Compl. ¶131).
Functionality and Market Context
The complaint alleges that Kroger has implemented a wide-ranging technological ecosystem to gather and analyze customer information in real-time (Compl. ¶121). This ecosystem is comprised of multiple components from different vendors, allegedly working in conjunction. Key accused functionalities include:
- In-Store Media and Analytics: Digital display networks from Barrows Connected Store that incorporate cameras and "audience measurement technology" (Compl. ¶122). The complaint provides an image of an in-aisle digital display screen at a Kroger store, part of what it calls Kroger's 'new display network' (Compl. ¶122).
- Customer Data Platforms: Kroger's subsidiary 84.51 LLC provides data analytics services, including machine learning and artificial intelligence, using data collected from sources like Kroger's loyalty program to drive marketing through Kroger Precisions Marketing (KPM) (Compl. ¶123).
- Smart Carts and Shelving: "KroGO smart carts" use cameras and scales to automatically detect items, while "EDGE smart shelving" offers dynamic pricing and may use facial recognition to determine customer demographics (Compl. ¶¶127, 129).
- Checkout and Loss Prevention: The Everseen Visual AI platform is used at self-checkout to analyze video and POS data feeds in real-time to detect unscanned items and alert store associates via a mobile device if intervention is needed (Compl. ¶124).
- Store Layout Optimization: The Kroger Assortment & Space Recommender (KASpR) uses machine learning to develop "store-specific predictions to determine the most strategic ways to allocate space" (Compl. ¶130).
IV. Analysis of Infringement Allegations
’571 Patent 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... wherein (iii) the... devices comprise one or more video image devices | Kroger's ecosystem utilizes video image devices, including cameras in its Barrows, Everseen, KroGO smart cart, and EDGE shelving platforms, to gather information about persons in its stores. | ¶122, ¶124, ¶127, ¶129, ¶140 | col. 21:45-47 |
| (iv) ...gathering a demographic characteristic... selected from a group consisting of gender... [and] approximate age | Kroger's EDGE smart shelving is alleged to use facial recognition to determine a customer's demographic. A letter from U.S. Senators cited in the complaint also warns Kroger about its plans to "determine the gender and age of a customer captured on camera." | ¶129, ¶132, ¶142 | col. 21:48-55 |
| (v) ...gathering a sentiment characteristic of the persons | The complaint alleges that the Accused Products collect sentiment characteristics of persons in proximity to the monitoring devices. | ¶142 | col. 21:56-60 |
| (vi) ...gathering a tracking characteristic... consisting of movement of the persons relative to the one more information monitoring devices | Kroger's QueVision system uses infrared sensors to collect data on shopper traffic, and the Everseen platform captures video data to analyze activity at checkout. | ¶124, ¶128 | col. 21:61-67 |
| (b) providing an opt-out option to the persons | The complaint alleges that the Accused Products provide an opt-out option, citing Kroger's privacy policy in connection with its data collection practices. | ¶123, ¶143 | col. 22:4-8 |
| (c) analyzing in real time... the information gathered | The Everseen Visual AI platform allegedly "analyzes and make inferences about data in real time." The 84.51° technologies analyze data to drive marketing, and QueVision uses predictive analytics on real-time data feeds. | ¶123, ¶124, ¶128, ¶141 | col. 22:9-19 |
| (d) providing a response in real time... (iii) providing marketing or advertising information to the person in real time | Kroger’s digital display network and EDGE smart shelving are alleged to present customers with "personalized offers and advertisements" based on the collected data. | ¶122, ¶129, ¶132 | col. 22:30-38 |
Identified Points of Contention
- Scope Questions: A central question may be whether the various components of Kroger's "ecosystem" collectively perform all the required steps of Claim 1. For example, does a general corporate privacy policy cited by the complaint (Compl. ¶123) constitute "providing an opt-out option" within the specific context of the claimed method?
- Technical Questions: The complaint alleges the gathering of a "sentiment characteristic" (Compl. ¶142) but does not specify which accused technology performs this function. A key factual question will be what evidence demonstrates that Kroger’s systems analyze a shopper's emotional state, as depicted in the patent's figures ('571 Patent, Fig. 2), rather than just their movements or demographics.
’825 Patent 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 | Kroger utilizes cameras and sensors in its Everseen, EDGE, and KroGO platforms to gather information about individual shoppers. | ¶124, ¶127, ¶129, ¶165 | col. 9:4-9 |
| (iv) ...gathering a demographic characteristic of the first person | Kroger's EDGE smart shelving is alleged to use facial recognition to determine a customer's demographic characteristics. | ¶129 | col. 9:20-27 |
| (v) ...gathering a tracking characteristic of the first person... movement of the first person | The Everseen platform captures video data of a shopper's activity at self-checkout. The QueVision system tracks shopper traffic through the store. | ¶124, ¶128 | col. 9:28-36 |
| (b) analyzing in real time... the information gathered... to generate a real time analysis of the first person | The Everseen Visual AI platform analyzes unstructured video data in real time to generate "instant insights into activity at the checkout." | ¶124 | col. 10:1-8 |
| (c) utilizing the real time analysis to select a sales associate from a group of sales associates | The complaint does not specify how an associate is "selected." The Everseen system is alleged to alert an associate to intervene in response to a scan error. | ¶124 | col. 10:9-11 |
| (d) sending a communication to the sales associate... wherein the sales representative can then directly interact with the first person | The Everseen platform "will alert a store associate via a mobile device, so they can intervene and rescan the item" if a shopper cannot resolve a scanning error. | ¶124 | col. 10:12-18 |
Identified Points of Contention
- Scope Questions: The infringement theory may turn on the construction of "select a sales associate." Does an automated alert to any available associate in response to a pre-defined event (e.g., a scan error) meet the claim's requirement of "utilizing the real time analysis to select" an associate? This raises the question of whether the claim requires a more discerning choice based on the substance of the analysis.
- Technical Questions: What evidence shows that the "real time analysis" of the shopper's demographic and tracking characteristics is the basis for "selecting" the associate, as opposed to the system simply flagging a mechanical event like a scan failure? The connection between the analysis step and the selection step will be a critical point of proof.
V. Key Claim Terms for Construction
’571 Patent, Claim 1: "sentiment characteristic"
- The Term: "sentiment characteristic"
- Context and Importance: This term is a required element of the information to be gathered and analyzed. The viability of the infringement allegation depends on whether any of the accused Kroger systems are found to detect a shopper's emotional state. Practitioners may focus on this term because it appears more specific than simple demographic or movement tracking.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification discusses capturing a person's "sentiment or reaction" ('571 Patent, col. 9:15-16), which a party could argue encompasses any observable response, not just discrete emotions.
- Evidence for a Narrower Interpretation: The patent's Figure 2 provides a specific embodiment showing a system outputting numerical scores for "Anger: 0," "Happy: 0.785," "Sad: 0," and "Surprise: 0.045." This suggests the term may be construed to require a specific form of computational emotion analysis.
’825 Patent, Claim 1: "utilizing the real time analysis to select a sales associate"
- The Term: "utilizing the real time analysis to select a sales associate"
- Context and Importance: This phrase links the data analysis step to the human intervention step and is a key differentiator from purely automated systems. The infringement case for this patent may depend on whether an automated alert to an available employee constitutes "selecting" them based on the "analysis."
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: A party could argue that any system logic that results in one specific associate being notified (e.g., the one assigned to that zone or the next available) is a form of "selection." The specification describes a system that can "alert a nearby employee" ('825 Patent, col. 18:32), which may suggest a simple proximity-based notification.
- Evidence for a Narrower Interpretation: The phrase "select a sales associate from a group" could imply a choice among multiple potential associates. The specification also describes providing a "profile of the customer to the sales associate" to help them better serve the customer ('825 Patent, col. 18:41-42), which may support a construction requiring a more sophisticated matching of associate to customer based on the analysis, rather than a generic alert.
VI. Other Allegations
Indirect Infringement
The complaint includes counts for induced infringement for all asserted patents. It alleges that Kroger knowingly induces its employees and customers to use the Accused Products in an infringing manner through its instructions, promotions, and the manner in which the systems are implemented in its stores (e.g., Compl. ¶¶157, 159, 181, 183).
Willful Infringement
Willfulness is alleged for all asserted patents. The primary basis for this allegation is Defendant's alleged knowledge of the patents stemming from the prior lawsuit filed by Plaintiff in January 2024, which asserted the '571, '672, and '890 patents. The complaint alleges that despite this pre-suit knowledge, Kroger continued to make, use, and sell the Accused Products, demonstrating blatant disregard for Plaintiff's patent rights (e.g., Compl. ¶¶148-151, 173-176).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of system integration and proof: Plaintiff accuses a broad "retail ecosystem" composed of distinct technologies from multiple vendors. A key evidentiary challenge will be to demonstrate that these disparate systems function together as claimed, or that individual components meet all limitations of a given claim. The court will have to consider whether infringement can be proven by stitching together the functionalities of separate products.
- A second central issue will be one of functional scope: The case may turn on whether the general-purpose functions of the accused systems (e.g., loss prevention, audience measurement) perform the specific steps required by the claims. For example, does an anti-theft system that alerts an associate to a scan error perform the claimed step of "utilizing the real time analysis to select a sales associate" ('825 Patent), or is there a fundamental mismatch in the technical purpose and operation?
- A third key question will be one of willfulness and damages: Given the prior litigation and settlement, Defendant's knowledge of at least three of the asserted patents appears established. This raises the question of whether Kroger’s continued operation and expansion of its retail technology constitutes objectively reckless behavior sufficient to support a finding of willful infringement, potentially leading to enhanced damages.