DCT

2:10-cv-00005

Conk v. Jordan Outdoor Enterprises

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I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: 2:10-cv-00005, D. Utah, 01/04/2010
  • Venue Allegations: Venue is alleged to be proper based on Defendants transacting business and committing tortious acts of patent infringement within the judicial district, including the sale of accused products through retail stores and the internet.
  • Core Dispute: Plaintiff alleges that Defendants’ camouflage-patterned products infringe two patents related to methods and apparatuses for creating realistic camouflage that provides an illusion of three-dimensional depth and perspective.
  • Technical Context: The technology involves creating camouflage patterns from photographic images of natural landscapes, layered in a specific way to be effective in open environments where a user might be seen against a distant background.
  • Key Procedural History: The complaint was filed on January 4, 2010. Subsequent to this filing, both patents-in-suit underwent ex parte reexamination proceedings at the U.S. Patent and Trademark Office. These proceedings, documented in certificates provided with the patents, concluded with the cancellation of all claims of U.S. Patent No. 6,342,290 in 2011 and all claims of U.S. Patent No. 6,682,879 in 2017.

Case Timeline

Date Event
1999-11-08 ’290 and ’879 Patents Priority Date
2002-01-29 U.S. Patent No. 6,342,290 Issue Date
2004-01-27 U.S. Patent No. 6,682,879 Issue Date
2010-01-04 Complaint Filing Date
2011-08-02 All claims of U.S. Patent No. 6,342,290 cancelled by reexamination
2017-01-11 All claims of U.S. Patent No. 6,682,879 cancelled by reexamination

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

U.S. Patent No. 6,342,290 - Camouflage Pattern Method and Apparatus (issued Jan. 29, 2002)

The Invention Explained

  • Problem Addressed: The patent asserts that conventional camouflage patterns are ineffective in environments with low or sparse vegetation, such as sagebrush plains, because they fail to conceal a user who stands taller than the surrounding foliage. These prior art patterns do not create an "illusion of perspective" to blend in with landscape features in the distance (’290 Patent, col. 1:36-44, col. 2:1-6).
  • The Patented Solution: The invention is a camouflage pattern created from photographic images of "discrete landscape features" (e.g., bushes, grasses) that are arranged in a "synthetic perspective relationship." This is achieved by layering the images to simulate depth—for instance, by obscuring portions of background images with foreground images—so the pattern recreates the appearance of a landscape extending toward an imaginary horizon (’290 Patent, Abstract; col. 5:5-38).
  • Technical Importance: The claimed approach sought to provide effective camouflage for open environments by mimicking not just immediate surroundings, but also the visual effect of depth and distance inherent in such landscapes (’290 Patent, col. 2:63-67).

Key Claims at a Glance

  • The complaint asserts "various claims" without specification (Compl. ¶34). Independent claim 1 is representative of the apparatus claims.
  • Independent Claim 1 requires:
    • A pattern with an "ecotone motif" corresponding to a selected environment.
    • "photographic images of discrete landscape features" from that environment.
    • The images being "ordered in a synthetic perspective relationship."
    • The images placed as pattern elements for imprinting on a substrate.
    • The organization includes images "ordered into classes by size... from small to large."

U.S. Patent No. 6,682,879 - Camouflage Pattern Method and Apparatus (issued Jan. 27, 2004)

The Invention Explained

  • Problem Addressed: The ’879 Patent, a continuation of the application for the ’290 Patent, addresses the same technical problem of creating depth-imitating camouflage for open terrain (’879 Patent, col. 1:40-49).
  • The Patented Solution: This patent claims the method for creating the camouflage material. The core steps involve photographing scenes, selecting and separating images of discrete features from those scenes, placing the separated images into a "synthetic perspective relationship," and printing the resulting design as a repeating pattern onto a substrate (’879 Patent, Claim 1).
  • Technical Importance: By claiming the manufacturing process, the ’879 Patent sought to protect the specific series of actions required to produce the novel camouflage pattern described in its parent patent (’879 Patent, "Related U.S. Application Data").

Key Claims at a Glance

  • The complaint asserts "various claims" without specification (Compl. ¶34). Independent claim 1 is representative of the method claims.
  • Independent Claim 1 requires the steps of:
    • Photographing scenes of a selected environment.
    • Selecting images of discrete features from the scenes.
    • Separating the selected images from the scenes.
    • Placing the images in a "synthetic perspective relationship."
    • Printing the relationship in a "repeating pattern on a substrate."

III. The Accused Instrumentality

Product Identification

  • The accused instrumentalities are "camouflage patterns and products upon which camouflage patterns are printed," manufactured and sold by the Defendants (Compl. ¶34). The complaint identifies at least one specific product line by trademark, "MOSSY OAK" (Compl. ¶5).

Functionality and Market Context

  • The complaint alleges that Defendants "manufacture and/or sell several products that depict camouflage patterns" (Compl. ¶20). It does not, however, provide any technical description of how these patterns are constructed, what images they contain, or how those images are arranged. The infringement allegations are based on the final appearance of the products (Compl. ¶21). The complaint notes that these products are sold through various named retail stores and online channels, suggesting they have a national commercial presence (Compl. ¶¶22-33).

IV. Analysis of Infringement Allegations

The complaint alleges infringement in general terms without providing a detailed, element-by-element mapping of the accused products to the asserted claims. No claim chart or equivalent analysis is included in the complaint.

No probative visual evidence provided in complaint.

  • Identified Points of Contention:
    • Scope Questions: The dispute may center on the interpretation of key claim phrases. For example, a court would need to determine whether the accused patterns' arrangement of natural elements meets the specific definition of a "synthetic perspective relationship" as taught in the patents. Similarly, it raises the question of whether the accused patterns contain images "ordered into classes by size... from small to large" (’290 Patent, Claim 1) in a manner consistent with the patent's teachings.
    • Technical Questions: The complaint does not provide evidence regarding the actual process used to create the accused camouflage patterns. A central technical question for the method claims of the ’879 Patent is whether Defendants' manufacturing process includes the claimed steps of photographing, selecting, separating, and arranging images in the prescribed manner.

V. Key Claim Terms for Construction

  • The Term: "synthetic perspective relationship" (asserted in Claim 1 of both patents)
    • Context and Importance: This term is the central inventive concept of both patents. The outcome of the infringement analysis may depend heavily on whether this term is construed broadly to cover any layering of images that creates a sense of depth, or narrowly to require a more structured, quasi-geometric arrangement.
    • Intrinsic Evidence for Interpretation:
      • Evidence for a Broader Interpretation: The specification describes the relationship as being created by "overlaying a photographic image on top of any other photographic image that lies above and behind the first photographic image" (’290 Patent, col. 2:57-62), which could suggest a general layering principle.
      • Evidence for a Narrower Interpretation: Figure 2 and its accompanying description detail a system of distinct viewing planes, a reference plane, and a vanishing point, which may support a narrower construction requiring a more deliberate and structured composition to achieve the perspective effect (’290 Patent, col. 5:5-38).
  • The Term: "ordered into classes by size, and ordered by class in the pattern from small to large" (’290 Patent, Claim 1)
    • Context and Importance: Practitioners may focus on this term because it appears to impose a specific, non-obvious organizational rule on the pattern's composition. Infringement could depend on whether the accused patterns follow this rule or are arranged more randomly.
    • Intrinsic Evidence for Interpretation:
      • Evidence for a Broader Interpretation: The specification discusses classifying elements into general categories of "groundcover," "mid-size element," and "large element" (’290 Patent, col. 8:60-63), which might support a less rigid interpretation of "classes by size."
      • Evidence for a Narrower Interpretation: The description of placing distinct layers of groundcover first, then small bushes, then large elements, suggests a specific hierarchical and ordered placement that a court might require for infringement (’290 Patent, col. 6:37-54).

VI. Other Allegations

  • Indirect Infringement: The complaint makes a general allegation of indirect infringement (Compl. ¶34) but does not plead specific facts to support the knowledge and intent elements required for induced infringement, such as referencing instructional materials or marketing that direct customers to use the products in an infringing manner.
  • Willful Infringement: Willfulness is alleged based on Defendants' purported "knowledge of those patents" (Compl. ¶35). The complaint does not provide a factual basis for this knowledge, such as prior correspondence or litigation, nor does it distinguish between pre-suit and post-suit willfulness.

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

  • A threshold question for the viability of the lawsuit is the legal effect of the post-filing cancellation of all asserted claims of both patents-in-suit. The court will have to address whether any cause of action for infringement can be maintained.
  • A central issue of claim construction will be one of definitional scope: can the term "synthetic perspective relationship," which the patent illustrates with a structured, multi-plane system, be construed to cover the layering of photographic elements in the accused commercial camouflage patterns?
  • A key evidentiary question will be whether the plaintiff can demonstrate that the accused products meet specific structural and methodological limitations—such as having elements "ordered into classes by size" and being created via the claimed "separating" and "placing" steps—for which the complaint provides no direct evidence.