VDPP LLC v. Penney OpCo LLC

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: VDPP, LLC (Oregon)
  • Defendant: PENNEY OPCO LLC, d/b/a/ JCPENNEY (Delaware)
  • Plaintiff’s Counsel: Ramey LLP
• Case Identification: 2:26-cv-00051, E.D. Tex., 01/22/2026
• Venue Allegations: Plaintiff alleges venue is proper because Defendant has committed acts of infringement and maintains a regular and established place of business in the Eastern District of Texas.
• Core Dispute: Plaintiff alleges that Defendant’s systems, products, and services related to image capture and modification infringe two patents concerning methods for creating visual effects and related hardware.
• Technical Context: The patents-in-suit relate to technologies for creating the illusion of sustained three-dimensional motion from a limited number of 2D images and specialized eyewear for viewing such effects.
• Key Procedural History: Plaintiff states that it and its predecessors-in-interest have entered into settlement licenses with other entities, but asserts these licenses did not involve the production of a patented article and thus did not trigger marking requirements.

Case Timeline

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

U.S. Patent No. 7,030,902 - "Eternalism, A Method For Creating An Appearance Of Sustained Three-Dimensional Motion-Direction Of Unlimited Duration, Using A Finite Number Of Pictures," Issued April 18, 2006

The Invention Explained

• Problem Addressed: The patent addresses the challenge of capturing and reproducing certain unique visual phenomena, which were previously limited to "transient theater" and live performances, as video recordings of such effects were "disappointingly compromised" (’902 Patent, col. 2:5-12).
• The Patented Solution: The invention is a method for creating an illusion of continuous, sustained motion using a finite number of images (as few as two) (’902 Patent, col. 1:15-19). This is achieved by repetitively presenting a sequence of at least two visually similar image pictures (e.g., 'A' and 'B') along with a third, dissimilar "bridging picture" (e.g., 'C', often a solid color), which acts as a "bridge-interval" between recurrences of the image pair (’902 Patent, col. 2:15-26, col. 3:15-20). The patent also describes creating blended or superimposed frames (e.g., A/B, C/A) to make the resulting visual illusion more fluid (’902 Patent, Abstract; col. 2:56-66).
• Technical Importance: The method allows for the creation of these "Eternalism" effects, which could previously only be generated in live performances, to be permanently stored, copied, and displayed on standard motion picture film or electronic media (’902 Patent, col. 2:18-21).

Key Claims at a Glance

• The complaint asserts infringement of claims 1-11 (Compl. ¶9).
• Independent Claim 1 requires the following essential method steps:
  • Selecting at least two visually similar image pictures (a first and second image picture).
  • Selecting a bridging picture that is dissimilar to the image pictures.
  • Arranging the pictures in a sequential order to create a series (one or more first image pictures, one or more second image pictures, one or more bridging pictures).
  • Placing this series onto a plurality of picture frames.
  • Repeating the series multiple times to create a continuous plurality of frames that, when viewed, produce an appearance of continuous movement.

U.S. Patent No. 9,948,922 - "Faster State Transitioning For Continuous Adjustable 3Deeps Filter Spectacles Using Multi-Layered Variable Tint Materials," Issued April 17, 2018

The Invention Explained

• Problem Addressed: The patent background identifies problems with existing "3Deeps Filter Spectacles," which are used for viewing 3D images. These problems include slow transition times for the lenses to change opacity and a limited life cycle for the optoelectronic materials used in the lenses (’922 Patent, col. 3:24-30; col. 4:1-5).
• The Patented Solution: The invention proposes electronically controlled spectacles that use multi-layered variable tint materials for the lenses to enable faster state transitions (’922 Patent, Abstract; col. 4:5-9). An onboard control unit is adapted to independently control the state of each lens, which can have multiple layers of electrochromic material, to improve performance and responsiveness (’922 Patent, Abstract; Fig. 6b).
• Technical Importance: This technology aims to improve the user experience of active 3D viewing glasses by making the optical transitions faster and more reliable, thereby enhancing the 3D illusion and potentially extending the product's lifespan (’922 Patent, col. 3:8-15).

Key Claims at a Glance

• The complaint asserts infringement of claims 1-12 (Compl. ¶14).
• Independent Claim 1 is an apparatus claim comprising a storage and a processor adapted to perform the following steps:
  • Obtain a first image frame and a second image frame from a video stream.
  • Generate a first modified image frame by expanding the first modified image frame, making it different from the first image frame.
  • Generate a second modified image frame by expanding the second modified image frame, making it different from the second image frame.
  • Generate a bridge frame of a solid color that is different from both the first and second image frames.
  • Display the first modified image frame, the second modified image frame, and the bridge frame.

III. The Accused Instrumentality

Product Identification

• The complaint does not identify any specific products by name. It broadly accuses Defendant's "systems, products, and services in the field of image capture devices" ('902 Patent) and "image capture and modification" ('922 Patent) (Compl. ¶9, ¶14).

Functionality and Market Context

• The complaint does not provide sufficient detail for analysis of the accused instrumentality's specific functionality or market context beyond the general allegation that Defendant "maintains, operates, and administers" the accused systems (Compl. ¶9, ¶14).

IV. Analysis of Infringement Allegations

The complaint alleges that support for its infringement allegations may be found in preliminary exemplary tables attached as Exhibits B and D (Compl. ¶10, ¶15). These exhibits were not provided with the complaint filed on the public docket. The complaint's narrative allegations do not contain specific facts mapping the elements of any asserted claim to the functionality of any accused instrumentality. It states in a conclusory manner that Defendant "put the inventions claimed by the [Patents-in-Suit] into service (i.e., used them)" (Compl. ¶9, ¶14).

No probative visual evidence provided in complaint.

• Identified Points of Contention: Given the lack of specific factual allegations, the initial and most significant point of contention will be the identification of the accused instrumentality.
  • Scope Questions: A threshold question is what specific "systems, products, and services" of a retail company like JCPenney could be construed to practice the claimed methods and apparatuses for creating specialized visual effects.
  • Technical Questions: Once an instrumentality is identified, a key question will be whether it performs the specific image manipulations required by the claims, such as arranging images with a "dissimilar" "bridging picture" to create "continuous movement" (’902 Patent) or generating modified image frames by "expanding" them (’922 Patent).

V. Key Claim Terms for Construction

• Term ('902 Patent, Claim 1): "continuous movement"

  • Context and Importance: This term describes the ultimate output and purpose of the claimed method. Its construction will be critical to determining infringement, as it defines the required visual effect. The dispute may center on whether any repeating animation meets this limitation or if it requires the specific, seamless illusion described in the patent.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Narrower Interpretation: The specification distinguishes the invention from a mere "visual stutter" that would result from simply repeating frames, describing the claimed effect as a "seamless movement, sustained fluid entirely on-going movement" (’902 Patent, col. 7:6-7). It also describes it as "an interval of action running in place without apparent beginning, middle and end" (col. 11:1-4). This language may support a construction requiring a specific type of fluid, non-stuttering illusion.
    • Evidence for a Broader Interpretation: A party might argue that in the absence of a more explicit definition, the term should be given its plain and ordinary meaning, which could potentially cover a wider range of repeating visual loops.

• Term ('922 Patent, Claim 1): "expanding the first modified image frame"

  • Context and Importance: This is one of the specific processing steps the accused apparatus must perform. The definition of "expanding" will determine what kind of image processing operation satisfies this claim element.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Narrower Interpretation: The specification as a whole is directed toward creating 3D visual effects and the "Eternalism" illusion. A defendant may argue that "expanding" should be construed in this context to mean a specific type of scaling or transformation related to creating a perspective shift or 3D effect, not just any generic image enlargement.
    • Evidence for a Broader Interpretation: The claim language itself does not tie "expanding" to a 3D purpose. A plaintiff may argue that the term should be given its plain meaning of increasing the size or dimensions of the image frame, without the importation of limitations from the specification.

VI. Other Allegations

• Willful Infringement: The complaint does not allege pre-suit knowledge of the patents. Instead, it makes a contingent request that the court declare the infringement willful and treble the damages if discovery reveals that the Defendant knew of the patents prior to the lawsuit and knew or should have known its conduct was infringing (Compl., Prayer for Relief ¶e).

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

1. Evidentiary Identification: The central threshold question is one of identification: What specific products, systems, or services offered by the Defendant, a retail company, are alleged to infringe patents directed to methods for creating artistic visual effects and specialized 3D viewing hardware? The complaint's failure to identify an accused instrumentality will be a primary focus in the early stages of litigation.
2. Applicability and Technical Match: A core issue will be one of technical applicability: Assuming an accused product is identified, does its operation map onto the specific, multi-step processes recited in the claims? This includes creating an illusion of "continuous movement" using a "bridging picture" (’902 Patent) and generating modified frames via "expanding" them (’922 Patent), raising the question of whether there is a fundamental match or mismatch in technical operation.
3. Claim Scope: A further question will concern definitional scope: How broadly will terms like "continuous movement" and "expanding" be construed? The resolution of these terms will likely determine whether the patents cover a broader category of digital video processing or are limited to the specific artistic and 3D effects described in the specifications.