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Case 2:20-cv-00362-JRG Document 1 Filed 11/13/20 Page 1 of 12 PageID #: 1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`Civil Action No. 2:20-cv-_____
`
`LENNON IMAGE TECHNOLOGIES,
`LLC,
`
`
`
`v.
`
`TARGET CORPORATION,
`
`
`
`
`Plaintiff,
`
`Defendant.
`
`
`
`PLAINTIFF LENNON IMAGE TECHNOLOGIES, LLC’S
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiff Lennon Image Technologies, LLC, by and through its attorneys, brings this action
`
`and makes the following allegations of patent infringement relating to United States Patent No.
`
`6,624,843 (the “’843 patent”). Defendant Target Corporation (“Target”) infringes Plaintiff’s ’843
`
`patent in violation of the patent laws of the United States of America, 35 U.S.C. § 1 et seq.
`
`PARTIES
`
`1.
`
`Plaintiff Lennon Image Technologies, LLC is a Texas Limited Liability Company
`
`with a place of business at 1910 East Southeast Loop 323, #244, Tyler, Texas 75701.
`
`2.
`
`Upon information and belief, Defendant Target is a corporation organized and
`
`existing under the laws of the State of Minnesota, with its principal place of business located at
`
`1000 Nicollet Mall, Minneapolis, Minnesota 55403. Defendant Target may be served with process
`
`through its registered agent CT Corporation System Inc., 1999 Bryan St., Ste. 900, Dallas, Texas
`
`75201.
`
`PLAINTIFF LENNON IMAGE TECHNOLOGIES, LLC’S
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Page 1
`
`

`

`Case 2:20-cv-00362-JRG Document 1 Filed 11/13/20 Page 2 of 12 PageID #: 2
`
`JURISDICTION AND VENUE
`
`3.
`
`This is an action for patent infringement arising under the patent laws of the United
`
`States of America, Title 35, United States Code.
`
`4.
`
`This Court has original jurisdiction over the subject matter of this action pursuant
`
`to 28 U.S.C. §§ 1331 and 1338(a).
`
`5.
`
`Upon information and belief, Defendant is subject to this Court’s general and/or
`
`specific personal jurisdiction because they (a) have committed acts of infringement in the State of
`
`Texas as alleged below; and/or (b) are engaged in continuous and systematic activities in the State
`
`of Texas.
`
`6.
`
`Venue is proper in this district under 28 U.S.C. § 1400(b). On information and
`
`belief, Defendant Target has committed acts of infringement in this District as set forth below, and
`
`has regular and established places of business in this District such as, for example, located at 120
`
`W. Parker Rd, Plano, TX 75075; 907 W. McDermott Dr., Allen, TX 75013; 8900 State Highway
`
`121, McKinney, TX 75070; 3201 Preston Rd, Frisco, TX 75034; and 2200 Dallas Pkwy, Plano,
`
`TX 75093. On information and belief, customers use Target’s Accused Instrumentality (defined
`
`below) in this District and, as a direct result of this use, subsequently purchase products at Target’s
`
`places of business in this District.
`
`ASSERTED PATENT
`
`7.
`
`On September 23, 2003, the United States Patent and Trademark Office issued
`
`United States Patent No. 6,624,843 entitled “Customer Image Capture and Use Thereof in a
`
`Retailing System,” a true copy of which is attached as Exhibit 1. The application that matured into
`
`the ’843 Patent was filed on December 8, 2000, and claims priority to a provisional application
`
`filed on December 10, 1999.
`
`PLAINTIFF LENNON IMAGE TECHNOLOGIES, LLC’S
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Page 2
`
`

`

`Case 2:20-cv-00362-JRG Document 1 Filed 11/13/20 Page 3 of 12 PageID #: 3
`
`8.
`
`On September 22, 2017, the Patent Trial and Appeal Board (“PTAB”) issued a
`
`“Decision on Appeal” concerning the ’843 Patent, confirming the patentability of original claims
`
`5, 8-13, 18, 20, and new claims 22-24, 28, 35, 38-40, 44, and 51. A true and correct copy of the
`
`“Decision on Appeal” is attached hereto as Exhibit 2. On September 26, 2018 an Ex Parte
`
`Reexamination Certificate issued for the ’843 Patent. A true and correct copy of the Ex Parte
`
`Reexamination Certificate is attached hereto as Exhibit 3.
`
`9.
`
`Plaintiff is the owner by assignment of the ’843 Patent and owns all right, title, and
`
`interest in the ’843 Patent, including the right to sue for and recover all past, present, and future
`
`damages for infringement of the ’843 Patent.
`
`10.
`
`The claimed invention relates to a “method and apparatus for capturing a person’s
`
`image and using the captured image in a retailing system.” Col. 1:13-16. The invention “allows
`
`apparel retailers and other purveyors of such items an opportunity to virtually ‘dress’ the potential
`
`customer in featured merchandise as a virtual ‘fitting.’” Col. 2:12-15. “Through manipulation of
`
`digitized images, an image of the customer in a new apparel style is displayed.” Col. 2:18-20. One
`
`embodiment of the ’843 Patent is described in claim 18, which depends on claims 14 and 17, and
`
`states as follows:
`
`
`Claim 14:
`
` A
`
` method for manipulating a customer image corresponding to a
`customer, the method comprising:
`capturing the customer image;
`generating a composite image comprising the customer
`image and one of at least one apparel style image corresponding to
`a potential purchase item;
`displaying the composite image thereby allowing the
`customer to assess the potential purchase item without having to try
`it on; and
`storing the customer image,
`
`PLAINTIFF LENNON IMAGE TECHNOLOGIES, LLC’S
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Page 3
`
`

`

`Case 2:20-cv-00362-JRG Document 1 Filed 11/13/20 Page 4 of 12 PageID #: 4
`
`wherein the step of generating the composite image further
`comprises retrieving the customer image in response to a request for
`the composite image.
`
`Claim 17:
`
`The method of claim 14, wherein the step of displaying further
`comprises:
`detecting presence of a person near a display;
`determining that the person corresponds to the customer
`image; and
`displaying the composite image in response to the step of
`determining.
`
`Claim 18:
`
`The method of claim 17, wherein the step of determining further
`comprises comparing biometric information of the person with the
`customer image.
`
`
`ACCUSED INSTRUMENTALITY AND BACKGROUND
`
`Defendant is engaged in the business of selling cosmetics products.
`
`Defendant engages in electronic commerce conducted on and using at least, but not
`
`11.
`
`12.
`
`limited to, the website https://www.target.com/.
`
`13.
`
`On information and belief, Defendant owns, operates, and/or directs the operation
`
`of a web-based virtual
`
`try-on
`
`tool, which
`
`is available for use at, for example,
`
`https://www.target.com/c/virtual-try-on/-/N-3726b (the “Target Beauty Studio Tool” or the
`
`“Accused Instrumentality”).
`
`14.
`
`On information and belief, Defendant has made, and continues to make available
`
`to its customers, the Target Beauty Studio Tool for manipulating an image corresponding to a
`
`customer.
`
`15.
`
`Defendant currently provides and/or has provided website visitors access to its site,
`
`https://www.target.com/, including the page https://www.target.com/c/virtual-try-on/-/N-3726b,
`
`which provides direction for website visitors to access and use the Target Beauty Studio Tool.
`
`PLAINTIFF LENNON IMAGE TECHNOLOGIES, LLC’S
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Page 4
`
`

`

`Case 2:20-cv-00362-JRG Document 1 Filed 11/13/20 Page 5 of 12 PageID #: 5
`
`16.
`
`Defendant allows customers to purchase its products using the Target Beauty
`
`Studio Tool.
`
`17.
`
`18.
`
`INFRINGEMENT OF U.S. PATENT NO. 6,624,843
`
`Plaintiff incorporates paragraphs 1 through 16 as though fully set forth herein.
`
`Defendant’s Beauty Studio Tool provides a method for manipulating a customer
`
`image corresponding to a customer.
`
`19.
`
`The Target Beauty Studio Tool captures a customer image. For example, the Target
`
`Beauty Studio Tool accesses a user’s computing device’s camera, or similar input device, to
`
`capture a customer image, as shown below:
`
`
`
`
`
`
`
`20.
`
`The Target Beauty Studio Tool generates a composite image comprising the
`
`customer image and one of at least one apparel style image corresponding to a potential purchase
`
`PLAINTIFF LENNON IMAGE TECHNOLOGIES, LLC’S
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Page 5
`
`

`

`Case 2:20-cv-00362-JRG Document 1 Filed 11/13/20 Page 6 of 12 PageID #: 6
`
`item including by retrieving the customer image in response to a request for the composite image.
`
`For example, as shown below, using the Target Beauty Studio Tool, a customer may select from a
`
`variety of makeup products (i.e., potential purchase items). For each selected product, the Target
`
`Beauty Studio Tool generates a composite image comprising the customer image and at least one
`
`apparel style image, which corresponds to a potential purchase item. Defendant retrieves the
`
`customer image from the user’s computing device, Target server(s), or both in response to a request
`
`for a composite image, such as in response to a user’s selection of a particular product.
`
`
`
`21.
`
`The Target Beauty Studio Tool displays the composite image thereby allowing the
`
`customer to assess the potential purchase item without having to try it on. For example, the Target
`
`Beauty Studio Tool displays images of the customer and the at least one apparel style image on
`
`the user’s device such that the user is able to assess a potential purchase item.
`
`PLAINTIFF LENNON IMAGE TECHNOLOGIES, LLC’S
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Page 6
`
`

`

`Case 2:20-cv-00362-JRG Document 1 Filed 11/13/20 Page 7 of 12 PageID #: 7
`
`
`
`
`As shown below, the Target Beauty Studio Tool stores the customer image, for
`
`22.
`
`example, on the user’s computing device, Target’s server(s), or both. The Target Beauty Studio
`
`Tool retrieves the customer image in response to a request for the composite image. For example,
`
`Target retrieves the customer image from the user’s computing device, Target’s server(s), or both
`
`in response to a request for a composite image, such as in response to a user’s selection of a
`
`particular product.
`
`23.
`
`Additionally, the Target Beauty Studio Tool displays the composite image by
`
`(a) detecting the presence of a person near a display; (b) determining that the person corresponds
`
`to the customer image; and (c) displaying the composite image in response to the step of
`
`determining.
`
`24.
`
`For example, the Target Beauty Studio Tool detects the presence of a person near
`
`a camera or similar video input apparatus of a user’s mobile device, as shown below:
`
`PLAINTIFF LENNON IMAGE TECHNOLOGIES, LLC’S
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Page 7
`
`

`

`Case 2:20-cv-00362-JRG Document 1 Filed 11/13/20 Page 8 of 12 PageID #: 8
`
`
`
`
`
`
`The Target Beauty Studio Tool determines that the person corresponds to the
`
`25.
`
`customer image by analyzing the input image and searching for the person’s face within the input
`
`image. If the person’s face within the input image, near the display, is appropriately positioned
`
`within the detection area, then the Target Beauty Studio Tool determines that the person
`
`corresponds to the customer image.
`
`26.
`
`Once the Target Beauty Studio Tool has determined that the person corresponds to
`
`the customer image, a composite image is displayed using the customer image and the at least one
`
`apparel style image, as shown below:
`
`PLAINTIFF LENNON IMAGE TECHNOLOGIES, LLC’S
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Page 8
`
`

`

`Case 2:20-cv-00362-JRG Document 1 Filed 11/13/20 Page 9 of 12 PageID #: 9
`
`
`
`27.
`
`Furthermore, the Target Beauty Studio Tool determines that the person corresponds
`
`to the customer image by comparing biometric information of the person with the customer image.
`
`For example, the Target Beauty Studio Tool compares the size and/or shape of the customer’s
`
`facial features, such as lips, with respect to the customer image.
`
`28.
`
`Defendant’s Beauty Studio Tool also provides a method for manipulating a
`
`customer image corresponding to a customer.
`
`29.
`
`Accordingly, Defendant has been and is now directly infringing one or more claims
`
`of the ’843 Patent, including Claim 18, in violation of 35 U.S.C. § 271(a), by making, using,
`
`selling, offering for sale or importing in the United States its Accused Instrumentality, which
`
`manipulates a customer image corresponding to a customer.
`
`30.
`
`In addition and/or in the alternative, Defendant has been and/or is now indirectly
`
`infringing one or more claims of the ’843 Patent and is continuing to engage in such indirect
`
`infringement in violation of 35 U.S.C. § 271(b) by inducing its customers to directly infringe the
`
`’843 Patent through their use of the Accused Instrumentality. Defendant induces such infringement
`
`PLAINTIFF LENNON IMAGE TECHNOLOGIES, LLC’S
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Page 9
`
`

`

`Case 2:20-cv-00362-JRG Document 1 Filed 11/13/20 Page 10 of 12 PageID #: 10
`
`by at least making the Target Beauty Studio Tool available to customers and providing links and
`
`directions to the same as well as providing instructions on its proper use and operation.
`
`31.
`
`A chart showing Defendant’s direct infringement of Claim 18, and other Claims of
`
`the ’843 Patent, is attached hereto as Exhibit 4.
`
`32.
`
`As a direct and proximate consequence of the acts and practices of the Defendant
`
`in infringing, directly, and/or indirectly, one or more claims of the ’843 Patent, Plaintiff has
`
`suffered, is suffering, and will continue to suffer injury and damages for which it is entitled to
`
`relief under 35 U.S.C. § 284 in an amount to be determined at trial.
`
`33.
`
`The limitation of damages provision of 35 U.S.C. § 287(a) is not applicable to
`
`Plaintiff.
`
`DEMAND FOR JURY TRIAL
`
`Plaintiff, under Rule 38 of the Federal Rules of Civil Procedure, requests a trial by jury of
`
`any issues so triable.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff requests the following relief:
`
`(a)
`
`A judgment in favor of Plaintiff that Defendant has directly infringed and/or have
`
`indirectly infringed by way of inducement of one or more claims of the Asserted Patent;
`
`(b)
`
`A judgment that Plaintiff has been irreparably harmed by the infringing activities
`
`of Defendant, and is likely to continue to be irreparably harmed by Defendant’s continued
`
`infringement;
`
`(c)
`
`A judgment and order requiring Defendant to pay Plaintiff damages adequate to
`
`compensate for infringement under 35 U.S.C. § 284, which damages may include lost profits but
`
`in no event shall be less than a reasonable royalty for their usage made of the inventions of the
`
`PLAINTIFF LENNON IMAGE TECHNOLOGIES, LLC’S
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Page 10
`
`

`

`Case 2:20-cv-00362-JRG Document 1 Filed 11/13/20 Page 11 of 12 PageID #: 11
`
`Asserted Patent, including pre- and post-judgment interest and costs, including expenses and
`
`disbursements;
`
`(d)
`
`A judgment awarding treble damages against the Defendant for willful
`
`infringement pursuant to 35 U.S.C. § 284;
`
`A judgment awarding Plaintiff its costs as provided under Fed. R. Civ. P. 54(d)(1);
`
`A judgment for pre- and post-judgment interest on all damages awarded;
`
`A judgment awarding Plaintiff post-judgment royalties; and
`
`Any and all such further necessary or proper relief as this Court may deem just and
`
`(e)
`
`(f)
`
`(g)
`
`(h)
`
`equitable.
`
`PLAINTIFF LENNON IMAGE TECHNOLOGIES, LLC’S
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Page 11
`
`

`

`Case 2:20-cv-00362-JRG Document 1 Filed 11/13/20 Page 12 of 12 PageID #: 12
`
`Dated: November 13, 2020
`
`
`
`
`
`
`Respectfully submitted,
`
`BUETHER JOE & COUNSELORS, LLC
`
`By:
`
`/s/ Christopher M. Joe
`Eric W. Buether
`State Bar No. 03316880
`Eric.Buether@BJCIPLaw.com
`Christopher M. Joe
`State Bar No. 00787770
`Chris.Joe@BJCIPLaw.com
`Thomas J. Gohn
`State Bar No. 24097742
`TJ.Gohn@BJCIPLaw.com
`
`1700 Pacific Avenue
`Suite 4750
`Dallas, Texas 75201
`Telephone:
`(214) 466-1272
`Facsimile:
`(214) 635-1828
`
`ATTORNEYS FOR PLAINTIFF
`LENNON IMAGE TECHNOLOGIES, LLC
`
`PLAINTIFF LENNON IMAGE TECHNOLOGIES, LLC’S
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Page 12
`
`

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