Electronic Scripting Products Inc v. Herschel Supply Co

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Electronic Scripting Products, Inc. (Delaware)
  • Defendant: Herschel Supply Company (Canada)
  • Plaintiff’s Counsel: The Mort Law Firm, PLLC; Banie & Ishimoto LLP
• Case Identification: 6:23-cv-00119, W.D. Tex., 02/15/2023
• Venue Allegations: Plaintiff alleges venue is proper because Defendant is a foreign corporation, subject to jurisdiction in any judicial district, and has allegedly committed acts of infringement and maintains a regular and established place of business in the district.
• Core Dispute: Plaintiff alleges that Defendant’s 3D and Augmented Reality features for product visualization on its website and mobile applications infringe patents related to determining an object's position and orientation using on-board optical sensors.
• Technical Context: The technology concerns systems where a manipulated device, such as a smartphone, determines its own absolute position and orientation (pose) by optically detecting and analyzing features in the surrounding physical environment.
• Key Procedural History: The complaint does not mention any prior litigation, Inter Partes Review (IPR) proceedings, or licensing history related to the patents-in-suit.

Case Timeline

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

U.S. Patent No. 10,191,559 - Computer Interface For Manipulated Objects With An Absolute Pose Detection Component

• Patent Identification: U.S. Patent No. 10,191,559, issued January 29, 2019 (Compl. ¶7).

The Invention Explained

• Problem Addressed: The patent’s background section describes a need for a low-cost, robust, and accurate method for capturing the absolute motion of manipulated objects (like wands or smartphones) used to interface with digital systems, particularly in confined or close-range environments where prior art solutions were often complex or inaccurate (’559 Patent, col. 1:20-31; col. 5:9-19).
• The Patented Solution: The invention is a manipulated object, such as a phone, that contains an on-board photodetector (camera). This photodetector detects "high optical contrast features" in the surrounding environment. A controller then analyzes the "derivative pattern"—the apparent change in the features' positions as seen by the moving photodetector—to calculate the object's own position and orientation (’559 Patent, Abstract; col. 6:30-44). This optical data can be supplemented by information from auxiliary sensors, such as an inertial device (’559 Patent, Abstract).
• Technical Importance: This self-contained approach allows a mobile device to determine its own absolute pose using its on-board sensors, a foundational capability for mobile augmented reality that does not require external tracking cameras or infrastructure (’559 Patent, col. 1:46-51).

Key Claims at a Glance

• The complaint asserts independent Claim 1 (Compl. ¶9).
• Essential Elements of Claim 1:
  • A manipulated object cooperating with a first plurality of high optical contrast features disposed in a real three-dimensional environment, said manipulated object comprising:
  • a) a photodetector configured to detect said first plurality of high optical contrast features and generate photodetector data representative of the positions of said first plurality of high optical contrast features;
  • b) a controller configured to identify a derivative pattern of said first plurality of high optical contrast features from said photodetector data, wherein said derivative pattern is indicative of the position of said photodetector; and
  • c) at least one component selected from the group consisting of an auxiliary motion detection component, an active illumination component and a scanning component.
• The complaint reserves the right to assert dependent Claims 6, 7, 10, 15, 16, 19, 24, and 25 (Compl. ¶19).

U.S. Patent No. 7,826,641 - Apparatus And Method For Determining An Absolute Pose Of A Manipulated Object In A Real Three-Dimensional Environment With Invariant Features

• Patent Identification: U.S. Patent No. 7,826,641, issued November 2, 2010 (Compl. ¶12).

The Invention Explained

• Problem Addressed: The patent addresses the challenge of accurately determining the complete three-dimensional position and orientation (absolute pose) of a handheld object. Prior art systems often relied on relative motion sensors, which could accumulate drift and error over time, or required complex external camera systems that were not practical for many applications (’641 Patent, col. 1:39-67).
• The Patented Solution: The patent describes an apparatus with an on-board "optical measuring means" (e.g., a camera) that infers its own absolute pose by observing at least one "invariant feature" (such as a fixed point or marking) in the surrounding environment. A processor on the apparatus prepares the calculated pose data and transmits it via a communication link to an application, enabling a direct mapping between the object's real-world movement and a digital action (’641 Patent, Abstract; Fig. 1).
• Technical Importance: The technology provides a self-contained system for a handheld device to determine its absolute pose, which is a critical building block for enabling 3D user interfaces and augmented reality applications where an object's real-world position directly controls a digital counterpart (’641 Patent, col. 1:20-31).

Key Claims at a Glance

• The complaint asserts independent Claim 1 (Compl. ¶14).
• Essential Elements of Claim 1:
  • An apparatus for processing absolute pose data derived from an absolute pose of a manipulated object in a real three-dimensional environment, said apparatus comprising:
  • a) at least one invariant feature in said real three-dimensional environment;
  • b) an optical measuring means for optically inferring said absolute pose from on-board said manipulated object using said at least one invariant feature and expressing said inferred absolute pose with absolute pose data (φ, θ, ψ, x, y, z) representing Euler rotated object coordinates expressed in world coordinates (Xo, Yo, Zo) with respect to a reference location;
  • c) a processor for preparing said absolute pose data and identifying a subset of said absolute pose data; and
  • d) a communication link for transmitting said subset to an application.
• The complaint reserves the right to assert dependent Claim 29 (Compl. ¶32).

III. The Accused Instrumentality

Product Identification

The "3D and Augmented Features on its website and phone applications," collectively referred to as the "Accused Products" (Compl. ¶9).

Functionality and Market Context

The Accused Products allow online shoppers to view 3D models of Herschel's merchandise and use an augmented reality (AR) feature to virtually place these items in their own real-world environment using a smartphone's camera (Compl. ¶9-10). The complaint includes a screenshot of marketing material stating "3D & AR is here. Try our latest features now" (Compl. p. 3). The AR functionality is alleged to be powered by platforms such as Apple's ARKit or Google's ARCore, which use a device's camera to detect "feature points and planes" in the environment to track the device's position and motion (Compl. ¶10). For desktop users, the feature presents a QR code to be scanned by a mobile device to initiate the AR experience (Compl. p. 4).

IV. Analysis of Infringement Allegations

'559 Patent Infringement Allegations

Identified Points of Contention

• Scope Questions: A central question may be whether the term "derivative pattern," as described in the patent, can be construed to read on the general-purpose environmental tracking and motion analysis performed by third-party software platforms like ARKit and ARCore.
• Technical Questions: The complaint alleges that ARKit/ARCore "tracks differences in the positions of those features across video frames" to satisfy the "derivative pattern" limitation. A point of contention could be whether this general description of tracking meets the more specific functional requirements of "identify[ing] a derivative pattern" as claimed.

'641 Patent Infringement Allegations

Identified Points of Contention

• Scope Questions: The infringement theory raises the question of whether the term "invariant feature" can be interpreted to cover the arbitrary "feature points and planes" detected by ARCore/ARKit in a given scene, as opposed to more permanent or predefined features contemplated in the patent's specification.
• Technical Questions: What evidence does the complaint provide that the accused system "express[es] said inferred absolute pose with absolute pose data (φ, θ, ψ, x, y, z) representing Euler rotated object coordinates"? The complaint does not specify the format of the pose data generated by the accused AR systems, which may differ from the specific coordinate system recited in the claim.

V. Key Claim Terms for Construction

Term ('559 Patent): "derivative pattern"

• Context and Importance: This term is central to how the '559 Patent's invention calculates an object's position. Its construction will be critical, as the dispute may turn on whether the general motion tracking of ARKit/ARCore meets the specific requirements of identifying a "derivative pattern," or if that term implies a more specific mathematical operation disclosed in the patent.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification describes the concept in general terms, stating that knowledge of the pattern's transformation "enables one to correlate the... pattern to the derivative pattern and obtain information about the pose" (’559 Patent, col. 6:38-44), which could support a broad interpretation covering any analysis of how features change from the device's perspective.
  • Evidence for a Narrower Interpretation: The specification links the derivative pattern to a "well-understood transformation (i.e., perspective distortion...)" (’559 Patent, col. 6:35-38). This may support a narrower construction limited to a specific type of geometric transformation rather than a generic feature-tracking algorithm.

Term ('641 Patent): "invariant feature"

• Context and Importance: The '641 Patent's system depends on observing these features to determine its pose. Practitioners may focus on this term because the accused AR systems detect arbitrary "feature points" in any environment, whereas many of the patent's embodiments describe discrete, pre-placed markers like LEDs or specific markings.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The patent defines the term broadly to include "stationary references such as ground planes, reference surfaces, lines, solids, fixed points and other invariant features" (’641 Patent, col. 1:24-27), language that could encompass natural environmental features.
  • Evidence for a Narrower Interpretation: Many figures and embodiments focus on artificial markers, such as IR LEDs arranged in a specific pattern (e.g., '641 Patent, Fig. 4). This could support an argument that "invariant" requires a feature that is intentionally placed, known, and persistent, rather than the ephemeral points detected by a general-purpose AR system.

VI. Other Allegations

Indirect Infringement

The complaint alleges induced infringement for both the '559 Patent (Compl. ¶¶23-29) and the '641 Patent (Compl. ¶¶36-42). The theory is that by providing the Accused Products and instructions for their use, Defendant knowingly encourages and instructs its end-users to operate their mobile devices in an infringing manner to view products in AR.

Willful Infringement

Willfulness is alleged for both patents on the basis of Defendant having knowledge of the patents and its alleged infringement "since at least the date of the filing of this Complaint" (Compl. ¶20, ¶33). This frames the willfulness allegations as arising from post-suit conduct.

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

• A core issue will be one of definitional scope: can the terms "derivative pattern" (’559 Patent) and "invariant feature" (’641 Patent), rooted in the patents' descriptions of specific geometric transformations and discrete environmental markers, be construed broadly enough to read on the general-purpose, algorithm-driven environmental mapping and motion tracking performed by modern third-party AR platforms like ARKit and ARCore?
• A key evidentiary question will be one of functional specificity: can the plaintiff produce sufficient technical evidence to demonstrate that the accused AR systems perform the specific functions recited in the claims—such as identifying a "derivative pattern" or expressing pose data in a specific Euler coordinate system—or will discovery reveal a fundamental mismatch in their technical operation compared to the methods disclosed in the patents?