Patent Troll Launches Infringement Litigation War on Augmented Reality Retailers

Last week I described a wide-ranging patent that Zugara received for its virtual dressing room AR technology.  This week I discovered* a series of six patent infringement lawsuits that another company has filed against 10 separate defendants over their use of similar technology–including at least one site designed by Zugara.  The AR patent wars that I have long predicted are heating up.

On July 16, 2012, Lennon Image Technologies LLC filed six separate patent infringement lawsuits, all in the U.S. District Court for Delaware.  Each is nearly identical to the other (sample complaint), and is based on the same patent: US 6,624,843 B2, issued Sep. 23, 2003.  I’ve found no indication that Lennon actually practices the technology, or does much of anything else–which is the classic definition of a “patent troll.”  The listed inventor is an individual in Illinois.

The title of the patent is “Customer Image Capture and Use Thereof in a Retailing System.”  The abstract describes an AR virtual fitting experience very similar to what we see on several websites today:

In a retailing system, an image capture system is provided and used to capture reference images of models wearing apparel items. At a retailer’s place of business, an image capture system substantially identical to that used to capture the reference images is also provided. A customer has his or her image captured by the image capture system at the retailer’s place of business. Subsequently, when the customer is in close proximity to an image display area within the retailer’s place of business, a composite image comprising the customer’s captured image and one of the reference images may be provided. The composite image may comprise full motion video or still images. In this manner, the customer is given the opportunity to virtually assess the selected merchandise without actually having to try on the apparel.

Of course, one important difference between this abstract and what these defendants do is that current virtual fitting experiences happen online, rather than “within the retailer’s place of business.”  One wonders if that will make a difference in the litigation.

Each of Lennon’s complaints specifies a specific website using analogous virtual-fitting technology.  Among these is Mattel’s BarbieDreamCloset.com, which Zugara designed and launched in February of this year.  This is also the only complained-of site that remains active, perhaps because Mattel knew that Zugara’s own patent was coming down the pipe.  Lennon’s other lawsuits call out jewelry-fitting sites run by Boucheron, Forervermark, De Beers, and Tatler Magazine; a watch-fitting site run by Swatch’s Tissot brand; and Skullcandy’s headphone-fitting site.  The AR portions of these sites no longer appear to be available.

Litigation moves slowly, and these cases are barely two months old, so very little has happened in them yet.  Mattel has received several extensions of its answer deadline and, at last check, has not yet answered.  (Again, you have to wonder if Zugara’s impending patent played a role in that decision.)  The others have answered, denying liability, and in two of the cases, the defendants have counter-claimed to have Lennon’s patent declared invalid.

With lawyers and patents already queued up on both sides and real money at stake, the battle is likely to be long and bloody.  But as the ancient proverb says, “when elephants fight, it is the grass that suffers.”  What effect will these lawsuits have on the fledgling AR industry as a whole?  The very fact that these lawsuits were filed has already resulted in 5 of the 6 sites at issue being taken down.  As I pointed out last week, virtual fitting experiences are relatively commonplace in the market today.  To some companies (like Ditto), that mechanic is virtually their entire business model, while for other others (like Total Immersion), it is a feature that appears in the work they’ve done for several clients.  Will these patent disputes ultimately promote or hinder innovation in AR?

To some extent, patent litigation is inevitable in any industry.  And it can even be helpful if it ends up ensuring that innovators are rewarded and incentivized to create new ideas rather than cannibalizing the old.  But the ongoing patent wars in the mobile phone industry set a troubling precedent for AR.  Digitally augmenting reality, as a concept, is an idea that is decades old.  Consequently, as I’ve previously written, inventors have had plenty of time to come up with AR applications and obtain patents on them.  Lennon’s patent, for example, is 9 years old.  The fact that the mobile technology necessary to make these ideas a commercially practical reality won’t stop patent holders from claiming that they invented the idea years earlier.

All of this makes it even more crucial to obtain informed legal counsel early on in your innovation process.  My firm has an active patent prosecution and litigation practice, including for multiple AR companies and inventions, and we would be happy to discuss whether we can be of assistance to you in avoiding and resisting lawsuits like this one.

*HT to Adrian Alexandru Leu for mentioning these lawsuits in the Augmented Reality Professionals LinkedIn group.

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