UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
LENNON IMAGE TECHNOLOGIES, LLC, Plaintiff,
v.
COTY INC., Defendant.
C.A. No. 1:17-cv-09146-VSB PLAINTIFF LENNON IMAGE TECHNOLOGIES, LLC’S AMENDED
SUPPLEMENTAL COMPLAINT FOR PATENT INFRINGEMENT
Plaintiff Lennon Image Technologies, LLC, by and through its attorneys, hereby files this Amended Supplemental Complaint for Patent Infringement relating to United States Patent No.
6,624,843 (“the ’843 patent”). Defendant Coty Inc. 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 Coty Inc. is a corporation organized and existing under the laws of the State of Delaware, with its principal place of business located at 350 Fifth Ave, 17th Floor, New York, New York 10118. Defendant may be served with process through its registered agent Corporation Service Company, 2711 Centerville Rd, Suite 400, Wilmington, Delaware 19808.
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 it (a) is a resident of the State of Texas; (b) has designated an agent for service of process in the State of Texas; (c) has committed acts of infringement in the State of Texas as alleged below; and/or (d) is engaged in continuous and systematic activities in the State of Texas.
6. Venue is proper in this district under 28 U.S.C. §§ 1391(c) and 1400(b). On information and belief, Defendant has a regular and established place of business in this district, and/or have transacted business in this district, and/or have committed, contributed to the commitment of, and/or induced acts of patent infringement 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 and correct 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.
8. 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.
9. 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,
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.
10. On November 3, 2017, counsel for Plaintiff sent a letter to counsel for Defendant
by the PTAB; and (3) a Claim Chart showing how Defendant’s “ManiMatch App” infringes Claims 5, 6, 9, 18, 39, 44, and 51. Plaintiff’s November 3, 2017 letter served as actual notice of Plaintiff’s provisional rights pursuant to 35 U.S.C. § 154(d). The inventions claimed in Claims 39, 44, and 51 from the “Decision on Appeal” are substantially identical to the inventions in Claims 27, 29, and 30, respectively, that issued in the Ex Parte Reexamination Certificate described in greater detail below. Thus, with respect to the “ManiMatch App” Defendant has had notice of infringement at least since November 3, 2017 with respect to new Claims 27, 29, and 30.
11. On September 26, 2018, the PTAB issued an Ex Parte Reexamination Certificate for the ’843 Patent, a true and correct copy of which is attached as Exhibit 2. In the Reexamination Certificate, the PTAB confirmed the patentability of Claim 5, new Claims 21-30 were added and determined to be patentable, Claims 1-4, 6, 7, 14-17, and 19 were cancelled, and Claims 8, 9, 10, 11, 12, 13, 18, and 20 were not reexamined.
ACCUSED INSTRUMENTALITIES
12. Defendant is in the business of selling, inter alia, cosmetic products.
13. Defendant engages in electronic commerce conducted on and using at least, but not limited to, the websites http://www.sallyhansen.com/, http://www.covergirl.com, http://www.rimmellondon.com, and http://www.clairol.com.
14. On information and belief, Defendant owned, operated, and/or directed the operation of a mobile cosmetics application, which was available for download at, for example, https://itunes.apple.com/us/app/manimatch/id1033341492?ls=1&mt=8 (“ManiMatch App”).
15. On information and belief, Defendant has made available to its customers the ManiMatch App for manipulating an image corresponding to a customer.
16. Defendant has provided website visitors access to its site, http://www.sallyhansen.com/, including the page http://www.sallyhansen.com/mani-match-app, which provided direction for website visitors to access and download its ManiMatch App.
17. Defendant directed its mobile apps users to operate the ManiMatch App, for example, by providing links and directions to its mobile applications as well as instructions on its proper use and operation, such as through the site http://www.sallyhansen.com/mani-match-app.
18. Defendant allowed customers to purchase its products using the ManiMatch App.
19. On information and belief, Defendant owned, operated, and/or directed the operation of an online “virtual makeover” cosmetics tool, which was available for use at, for example, http://www.covergirl.com/en_us/tryit (the “Covergirl ‘Try It’ Virtual Makeover Tool”).
20. On information and belief, Defendant has made available to its customers the Covergirl “Try It” Virtual Makeover Tool for manipulating an image corresponding to a customer.
21. Defendant has provided website visitors access to its site, http://www.covergirl.com, including the page http://www.covergirl.com/en_us_tryit, which provided direction for website visitors to access and use the Covergirl “Try It” Virtual Makeover Tool.
22. Defendant directed its customers to operate the Covergirl “Try It” Virtual Makeover Tool, for example, by providing instruction on its proper use and operations, such as through the website http://www.covergirl.com/en_us/tryit.
23. Defendant allowed customers to purchase its products using the Covergirl “Try It”
https://itunes.apple.com/us/app/get-the-look-rimmel-london/id1120244830 (“Get the Look App”).
25. On information and belief, Defendant currently makes available and has made available to its customers the Get the Look App for manipulating an image corresponding to a customer.
26. Defendant provides website visitors access to its site, http://www.rimmellondon.com, including the page https://www.rimmellondon.com/en_us/get- the-app, which provided direction for website visitors to access and download its Get the Look App.
27. Defendant directs its mobile apps users to operate the Get the Look App, for example, by providing links and directions to its mobile applications as well as instructions on its proper use and operation, such as through the site https://www.rimmellondon.com/en_us/get-the- app.
28. Defendant allows customers to purchase its products using the Get the Look App.
29. The ManiMatch App, Covergirl “Try It” Virtual Makeover Tool, Get The Look App, and all similar apps and online tools of Defendant are referred to herein as the “Accused Instrumentalities.”
INFRINGEMENT OF U.S. PATENT NO. 6,624,843
30. Plaintiff incorporates paragraphs 1 through 29 as though fully set forth herein.
31. Defendant directly and indirectly infringes one or more claims of the ’843 Patent with respect to each of the Accused Instrumentalities.
ManiMatch App
32. Defendant’s ManiMatch App provides a method for manipulating a customer image corresponding to a customer.
33. Defendant’s ManiMatch App captures a customer image. For example, Defendant’s ManiMatch App accesses a mobile device’s camera, or similar input device, to capture a customer image, as shown below:
34. Defendant’s ManiMatch App generates a composite image comprising the customer image and one of at least one apparel style image corresponding to a potential purchase item including by retrieving the customer image in response to a request for the composite image.
For example, as shown below, using Defendant’s ManiMatch App, a customer may select from a variety of nail and manicure products (i.e., potential purchase items). For each selected product, Defendant’s ManiMatch App generates a composite image comprising the customer image and at least one apparel style image, which corresponds to a potential purchase item. Defendant retrieves
35. Defendant’s ManiMatch App displays the composite image thereby allowing the customer to assess the potential purchase item without having to try it on. For example, the ManiMatch App displays images of the customer and the at least one apparel style image on the user’s mobile device such that the user is able to assess a potential purchase item, such as nail polish, without having to try it on, as shown below:
36. As shown below, Defendant’s ManiMatch App stores the customer image, for example, on the user’s iOS device, Defendant’s server(s), or both. Additionally, customers are able to “snap and share” the composite image using Defendant’s ManiMatch App, as shown below:
37. Defendant’s ManiMatch retrieves the customer image in response to a request for the composite image. For example, Defendant retrieves the customer image from the user’s iOS device, Defendant’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, for example, such as “Ruby Do” nail polish.
38. Additionally, Defendant’s ManiMatch App 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.
39. For example, Defendant’s ManiMatch App detects the presence of a person near a camera or similar video input apparatus of a user’s mobile device, as shown below:
40. Defendant’s ManiMatch App determines that the person corresponds to the customer image by analyzing the input image and searching for the person’s hand and fingers within the input image. If the person’s hand and fingers within the input image, near the display,
is appropriately positioned within the detection area, then Defendant’s ManiMatch App determines that the person corresponds to the customer image.
41. Once Defendant’s ManiMatch App 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, such as nail polish, as shown below:
42. Furthermore, Defendant’s ManiMatch App determines that the person corresponds to the customer image by comparing biometric information of the person with the customer image.
For example, Defendant’s ManiMatch App compares a customer’s hand, fingers, and/or nails’ size and/or shape with respect to the customer image, as shown below:
https://www.coty.com/news/manimatch-revolution-try-technology, last visited 04/25/2017 (highlights added).
43. Defendant’s ManiMatch App also detects the presence of the customer and captures the customer image in response to detecting the presence of the customer. For example, as shown below, the ManiMatch App detects the presence of the customer’s hand within the field of view of the camera, and detects that the customer’s fingers are properly aligned:
44. As shown below, for example, the ManiMatch App further captures the customer image in response to detecting the presence of the customer’s hand in the camera’s field of view and detecting that the customer’s fingers are properly aligned:
45. The accused ManiMatch App further detects the presence of a customer by detecting proximity of a customer. For example, if the customer’s hand is too far away from or too close to the camera, the ManiMatch App will not capture the customer image. Thus, by detecting the proximity of the customer’s hand to the camera, the ManiMatch App detects the proximity of the customer.
46. Furthermore, Defendant’s ManiMatch App repeatedly captures customer images until determining that a valid image has been obtained for use with a composite image. For example, as shown below, the ManiMatch App repeatedly captures customer images while the customer is aligning their hand and fingers within the outline of the hand. When the ManiMatch App determines that the customer’s hands and fingers are properly aligned, the ManiMatch App determines that a valid customer image has been obtained for use with a composite image:
47. Users of the ManiMatch App installed on an iOS device, for example, use an apparatus for manipulating a customer image corresponding to a customer comprising a controller,
an image capture system, coupled to the controller, that captures the customer image of the customer and provides the customer image to the controller, a database, coupled to the controller, for storing the customer image and at least one apparel style image corresponding to a potential purchase item, and an image display system, coupled to the controller, for displaying a composite image comprising the customer image and any one of the at least one apparel style image thereby allowing the customer to assess the potential purchase items without having to try it one.
48. For example, an iPhone 7 on which the ManiMatch App is installed includes a controller such as the A10 Fusion chip as shown, for example, below:
49. An iPhone 7 on which the ManiMatch App is installed also includes, for example, an image capture system such as a camera as shown, for example, below. The ManiMatch software instructs the camera to capture an image of a customer. The camera and ManiMatch software for causing the camera to captures a customer image comprise an image capture system.
50. iOS devices such as, for example, the iPhone 7 on which the ManiMatch App are installed further include a database for storing an image of a user captured via the camera, and the variety of nail polishes available via the ManiMatch App.
51. An iPhone 7 on which the ManiMatch App is installed, for example, further includes a display controller (e.g., GPU), a touchscreen display, and software instructions for having the iPhone 7 display, via the touchscreen display, a composite image as shown, for example, below:
52. iOS devices on which the ManiMatch App are installed such as, for example, the iPhone 7, further include an apparatus wherein the controller provides the customer image and one of the at least one apparel style image to the image display system, and wherein the image display system generates the composite image from the customer image and the one of the at least one apparel style image. The controller on an iPhone 7, for example, includes a processor that captures a customer image and accesses the variety of nail polishes that may be sampled. The customer image and selected nail polish are provided to the iPhone 7’s image display system, which includes the iPhone 7’s display controller (e.g. GPU) as shown, for example, below. The display controllers (e.g. GPU) generates a composite image by combining the customer image and the apparel style image.
53. iOS devices on which the ManiMatch App is installed such as, for example, the iPhone 7 further include a trigger device, coupled to the controller, that detects the presence of the customer and, in response, causes the composite image to be displayed by the image display system. For example, iPhone 7 devices on which the ManiMatch App are installed include a trigger device comprising the iPhone 7 camera and the ManiMatch software for detecting the shape of a hand. The ’843 Patent specification describes “suitable trigger devices” as including “but are not limited to, keypads, card readers, touch screens, cameras or the like or combinations of such devices. When activated, each trigger device 116 informs the controller 102 of the presence of a customer 114 near a display screen, thereby initiating display of an appropriate composite image.”
The iPhone 7 camera under control of the ManiMatch software detects the presence of a customer’s hand and, upon detecting a hand, displays a composite image comprising the hand and a sample nail polish as shown, for example, below:
54. iOS devices on which the ManiMatch App is installed further comprise an apparatus wherein the trigger device is associated with the potential purchase item, and wherein the one of the at least one apparel style image used to generate the composite image corresponds to the potential purchase item. For example, the trigger device detects the presence of a customer hand and, upon detecting a hand, the trigger device automatically displays a given nail polish on the user’s hand as a composite image. The nail polish presented corresponds to a potential purchase items, as the nail polish may be purchased by clicking on the “Buy Now” button as shown, for example, below:
55. iOS devices on which the ManiMatch App is installed further comprise an apparatus comprising a trigger device, coupled to the controller, that detects a presence of the customer and activates the image capture system in response to detecting presence of the customer, wherein the trigger device detects the presence of the customer based on a proximity of the customer with respect to the image display system. For example customer’s iOS devices include a trigger device comprising an internal camera and the ManiMatch software for detecting the prosimity of the customer’s hand with respect to the image display system. The ’843 Patent specification describes “suitable trigger devices” as including “but are not limited to, keypads, card readers, touch screens, cameras or the like or combinations of such devices. When activated, each trigger device 116 informs the controller 102 of the presence of a customer 114 near a display screen, thereby initiating display of an appropriate composite image.” The iPhone 7 camera under control of the ManiMatch software detects the presence of a customer’s hand and, upon detecting a hand, activates the image capture system. If the customer’s hand is too far away from or too close to the camera, for example, ManiMatch will not detect the presence of the customer. Thus, by detecting the proximity of the customer’s hand to the image display system, the ManiMatch App detects the presence of the customer.
56. iOS devices on which the ManiMatch App is installed further comprise an apparatus wherein the image capture system repeatedly captures images until the controller determines that a valid image has been obtained for use with a composite image. For example, as shown below, the ManiMatch App repeatedly captures customer images while the customer is
Covergirl “Try It” Virtual Makeover Tool
57. Defendant’s Covergirl “Try It” Virtual Makeover Tool provides a method for manipulating a customer image corresponding to a customer.
58. Defendant’s Covergirl “Try It” Virtual Makeover Tool captures a customer image.
For example, Defendant’s Covergirl Try It Virtual Makeover Tool accesses a user’s webcam, or similar input device, to capture the customer image. More particularly, the Covergirl “Try It”
Virtual Makeover Tool prompts the user to “LAUNCH CAMERA TO START” as shown, for example, below::
59. Defendant’s Covergirl “Try It” Virtual Makeover Tool generates a composite image comprising the customer image and one of at least one apparel style image corresponding to a potential purchase item including by retrieving the customer image in response to a request for the composite image. For example, as shown below, using Defendant’s Covergirl “Try It”
Virtual Makeover Tool, a customer may select from a variety of “looks,” each of which includes
60. For each selected “look,” Defendant’s Covergirl “Try It” Virtual Makeover 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 computer, Defendant’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 “look.”
61. Defendant’s Covergirl “Try It” Virtual Makeover Tool displays the composite image thereby allowing the customer to assess the potential purchase item without having to try it on. For example, the Covergirl “Try It” Virtual Makeover Tool displays images of the customer and the at least one apparel style image on the user’s computer monitor such that the user is able to assess a potential purchase item, such as eye shadow or lipstick, without having to try it on, as shown below:
62. Defendant’s Covergirl “Try It” Virtual Makeover Tool retrieves the customer image in response to a request for the composite image. For example, Defendant retrieves the customer image from the user’s computer, Defendant’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 “look,” for example, such as the “No Makeup Makeup” look or the “Smoky Eye” look.
63. Additionally, Defendant’s Covergirl “Try It” Virtual Makeover Tool displays the composite image by (a) detecting the presence of a person near a display; (b) determining that the
64. For example, Defendant’s Covergirl “Try It” Virtual Makeover Tool detects the presence of a person near a camera or similar video input apparatus of a user’s computer, as shown below:
65. Defendant’s Covergirl “Try It” Virtual Makeover Tool determines that the person corresponds to the customer image by analyzing the input image and searching for the person’s eyes, eyebrows, lips, and other facial features within the input image. If the person’s facial features within the input image, near the display, are appropriately positioned within the detection area,
then Defendant’s Covergirl “Try It” Virtual Makeover Tool determines that the person corresponds to the customer image.
66. Once Defendant’s Covergirl “Try It” Virtual Makeover 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, such as the makeup items used for a particular
“look,” as shown below:
67. Furthermore, Defendant’s Covergirl “Try It” Virtual Makeover Tool determines
Tool compares a customer’s eyes, eyebrows, and lips position, size, and/or shape with respect to the customer image.
68. Defendant’s Covergirl “Try It” Virtual Makeover Tool also detects the presence of the customer and captures the customer image in response to detecting the presence of the customer. For example, as shown below, the Covergirl “Try It” Virtual Makeover Tool detects the presence of the customer’s face within the field of view of the camera:
69. As shown below, for example, the ManiMatch App further captures the customer image in response to detecting the presence of the customer’s face in the camera’s field of view:
70. The accused Covergirl “Try It” Virtual Makeover Tool further detects the presence of a customer by identifying one or more customer facial features such as, for example, a customer’s eyes, eyebrows, and lips.
71. Defendant’s Covergirl “Try It” Virtual Makeover Tool also detects the presence of the customer and captures the customer image in response to detecting proximity of the customer.
If the customer’s face is too far away from or too close to the camera, for example, the Covergirl
“Try It” Virtual Makeover Tool will not capture the customer image. Thus, by detecting the
72. Furthermore, the Covergirl “Try It” Virtual Makeover Tool repeatedly captures customer images until determining that a valid image has been obtained for use with a composite image. For example, as shown below, the Covergirl “Try It” Virtual Makeover Tool repeatedly captures customer images while the customer is positioning their face within the camera’s field of view. When the Covergirl “Try It” Virtual Makeover Tool determines that the customer’s face is properly positioned within the camera’s field of view, the Covergirl “Try It” Virtual Makeover Tool determines that a valid customer image has been obtained for use with a composite image:
73. Users of the Covergirl “Try It” Virtual Makeover Tool use an apparatus for manipulating a customer image corresponding to a customer comprising a controller, an image capture system, coupled to the controller, that captures the customer image of the customer and provides the customer image to the controller, a database, coupled to the controller, for storing the customer image and at least one apparel style image corresponding to a potential purchase item, and an image display system, coupled to the controller, for displaying a composite image comprising the customer image and any one of the at least one apparel style image thereby allowing
75. Computers from which customers access and use the Covergirl “Try It” Virtual Makeover Tool also include, for example, an image capture system such as a webcam connected to the customer’s computer and coupled to the CPU therein. As shown below, for example, the Covergirl “Try It” Virtual Makeover Tool prompts the customer to “LAUNCH CAMERA TO START.”
76. Computers from which customers access and use the Covergirl “Try It” Virtual Makeover Tool also include, for example, a database for storing an image of a user captured via
the camera, and the variety of makeup items for the selected “look” available via the Covergirl
“Try It” Virtual Makeover Tool.
77. Computers from which customers access and use the Covergirl “Try It” Virtual Makeover Tool also include, for example, a display controller (e.g., GPU), a display such as an integral LCD display if the computer is a laptop, or an external LCD display if the computer is a desktop/tower, and software instructions for having the computer display, via the touchscreen display, a composite image.
78. Computers from which customers access and use the Covergirl “Try It” Virtual Makeover Tool also include, for example, an apparatus wherein the controller provides the customer image and one of the at least one apparel style image to the image display system, and wherein the image display system generates the composite image from the customer image and the one of the at least one apparel style image. For example, the computer includes a processor that captures a customer image using, for example, a webcam connected to the computer, and accesses the variety of makeup items that may be sampled for the selected “look.” The customer image and selected makeup items are provided to the computer’s image display system, which includes the display controller (e.g., GPU). The display controller (e.g., GPU) generates a composite image by combining the customer image and the apparel style image.
79. Computers from which customers access and use the Covergirl “Try It” Virtual Makeover Tool also include, for example, a trigger device, coupled to the controller, that detects the presence of the customer and, in response, causes the composite image to be displayed by the
limited to, keypads, card readers, touch screens, cameras or the like or combinations of such devices. When activated, each trigger device 116 informs the controller 102 of the presence of a customer 114 near a display screen, thereby initiating display of an appropriate composite image.”
The Covergirl “Try It” Virtual Makeover Tool software, in connection with the customer’s webcam, detects presence of a customer’s face, and upon detecting a face, displays a composite image comprising the face and one or more makeup items used for the selected “look.”
80. Computers from which customers access and use the Covergirl “Try It” Virtual Makeover Tool also include, for example, an apparatus wherein the trigger device is associated with the potential purchase item, and wherein the one of the at least one apparel style image used to generate the composite image corresponds to the potential purchase item. For example, the trigger device detects presence of a customer face. Upon detecting a face, the trigger device automatically displays one or more makeup items on the customer’s face as a composite image.
The makeup items presented correspond to potential purchase items, as the makeup may be purchased by clicking on the “Buy Now” button as shown, for example, below:
81. Computers from which customers access and use the Covergirl “Try It” Virtual Makeover Tool also include, for example, an apparatus comprising a trigger device, coupled to the controller, that detects a presence of the customer and activates the image capture system in response to detecting presence of the customer, wherein the trigger device detects the presence of the customer by identifying one or more facial features such as, for example, eyes, eyebrows, and lips. For example, customer computers include a trigger device comprising a webcam and the Covergirl “Try It” Virtual Makeover Tool software for detecting a customer’s face. The ’843
Covergirl “Try It” Virtual Makeover Tool software, in connection with the customer’s webcam, detects the presence of the customer by identifying one or more facial features such as, for example, eyes, eyebrows, and lips and, upon detecting the presence of the customer, activates the image capture system.
82. Computers from which customers access and use the Covergirl “Try It” Virtual Makeover Tool also include, for example, an apparatus comprising a trigger device, coupled to the controller, that detects a presence of the customer and activates the image capture system in response to detecting presence of the customer, wherein the trigger device detects the presence of the customer based on a proximity of the customer with respect to the image display system. For example, customer computers include a trigger device comprising a webcam and the Covergirl
“Try It” Virtual Makeover Tool software for detecting the proximity of the customer’s face with respect to the image display system. The ’843 Patent specification describes “suitable trigger devices” as including “but are not limited to, keypads, card readers, touch screens, cameras or the like or combinations of such devices. When activated, each trigger device 116 informs the controller 102 of the presence of a customer 114 near a display screen, thereby initiating display of an appropriate composite image.” The Covergirl “Try It” Virtual Makeover Tool software, in connection with the customer’s webcame detects the presence of the customer based on a proximity of the customer with respect to the image display system and, upon detecting the presence of the customer, activates the image capture system. If the customer’s face is too far away from or too close to the camera, for example, the Covergirl “Try It” Virtual Makeover Tool will not detect the presence of the customer. Thus, by detecting the proximity of the customer’s face to the image display system, Coty detects the presence of the customer.
83. Computers from which customers access and use the Covergirl “Try It” Virtual Makeover Tool also include, for example, an apparatus wherein the image capture system repeatedly captures images until the controller determines that a valid image has been obtained for use with a composite image. For example, as shown below, the Covergirl “Try It” Virtual Makeover Tool repeatedly captures customer images while the customer is aligning their face within the camera’s field of view. When the Covergirl “Try It” Virtual Makeover Tool determines that the customer’s face is properly positioned within the camera’s field of view, the Covergirl
“Try It” Virtual Makeover Tool determines that a valid customer image has been obtained for use with a composite image:
Get the Look App
84. Defendant’s Get the Look App provides a method for manipulating a customer image corresponding to a customer.
85. Defendant’s Get the Look App captures a customer image. For example, Defendant’s Get The Look App accesses a mobile device’s camera, or similar input device, to capture a customer image, as shown below:
86. Defendant’s Get the Look App generates a composite image comprising the customer image and one of at least one apparel style image corresponding to a potential purchase item including by retrieving the customer image in response to a request for the composite image.
For example, as shown below, using Defendant’s Get the Look App, a customer may select from a variety of different “Looks,” each of which is comprised of one or more makeup items (i.e.
potential purchase items) as shown, for example, below:
87. For each selected “Look,” Defendant’s Get the Look App 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 iOS device, Defendant’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 “Look.”
88. Defendant’s Get the Look App displays the composite image thereby allowing the customer to assess the potential purchase item without having to try it on. For example, the Get the Look App displays images of the customer and the at least one apparel style image on the user’s mobile device such that the user is able to assess a potential purchase item, such as lipstick, without having to try it on, as shown below:
89. As shown below, Defendant’s Get the Look App stores the customer image, for example, on the user’s iOS device, Defendant’s server(s), or both. Additionally, customers are able to “Share” the composite image using Defendant’s Get the Look App, as shown below:
90. Defendant’s Get the Look App retrieves the customer image in response to a request for the composite image. For example, Defendant retrieves the customer image from the user’s iOS device, Defendant’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 “Look,” for example, such as “Evening Look 1.”
91. Additionally, Defendant’s Get the Look App 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.
92. For example, Defendant’s Get the Look App detects the presence of a person near a camera or similar video input apparatus of a user’s mobile device, as shown below:
93. Defendant’s Get the Look App determines that the person corresponds to the customer image by analyzing the input image and searching for the person’s facial features such as lips, eyes, and eyebrows within the input image. If the person’s face within the input image, near the display, is appropriately positioned within the detection area, then Defendant’s Get the Look App determines that the person corresponds to the customer image.
94. Once Defendant’s Get the Look App 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, such as lipstick, as shown below:
95. Furthermore, Defendant’s Get the Look App determines that the person corresponds to the customer image by comparing biometric information of the person with the customer image. For example, Defendant’s Get the Look App compares a customer’s lips, eyes, and/or eyebrows’ size and/or shape with respect to the customer image.
96. Defendant’s Get the Look App also detects the presence of the customer and captures the customer image in response to detecting the presence of the customer. For example, as shown below, the Get The Look App detects the presence of the customer’s face within the field of view of the camera, and detects that the customer’s face is properly positioned within the
97. As shown above, for example, the Get the Look App further captures the customer image in response to detecting the presence of the customer’s face in the camera’s field of view and detecting that the customer’s face is properly positioned within the detection area.
98. The accused Get the Look App further detects the presence of a customer by detecting proximity of a customer. For example, if the customer’s face is too far away from or too close to the mobile device’s camera, or similar input device, the Get the Look App will not capture the customer image. Thus, by detecting the proximity of the customer’s face to the camera, the Get the Look App detects the proximity of the customer.
99. Furthermore, Defendant’s Get the Look App repeatedly captures customer images until determining that a valid image has been obtained for use with a composite image. For example, as shown below, the Get the Look App repeatedly captures customer images while the customer is aligning their face within the detection area. When the Get the Look App determines that the customer’s face is properly aligned, the Get The Look App determines that a valid customer image has been obtained for use with a composite image.
100. Users of the Get the Look App installed on an iOS device, for example, use an apparatus for manipulating a customer image corresponding to a customer comprising a controller, an image capture system, coupled to the controller, that captures the customer image of the customer and provides the customer image to the controller, a database, coupled to the controller, for storing the customer image and at least one apparel style image corresponding to a potential purchase item, and an image display system, coupled to the controller, for displaying a composite image comprising the customer image and any one of the at least one apparel style image thereby allowing the customer to assess the potential purchase items without having to try it one.
101. For example, an iPhone 7 on which the Get the Look App is installed includes a controller such as the A10 Fusion chip as shown, for example, below:
software instructs the camera to capture an image of a customer. The camera and Get the Look software for causing the camera to captures a customer image comprise an image capture system.
103. iOS devices such as, for example, the iPhone 7 on which the Get the Look App are installed further include a database for storing an image of a user captured via the camera, and the variety of nail polishes available via the Get the Look App.
104. An iPhone 7 on which the Get the Look App is installed, for example, further includes a display controller (e.g., GPU), a touchscreen display, and software instructions for having the iPhone 7 display, via the touchscreen display, a composite image as shown, for example, below:
105. iOS devices on which the Get the Look App are installed such as, for example, the iPhone 7, further include an apparatus wherein the controller provides the customer image and one of the at least one apparel style image to the image display system, and wherein the image display system generates the composite image from the customer image and the one of the at least one apparel style image. The controller on an iPhone 7, for example, includes a processor that captures a customer image and accesses the variety of “Looks” that may be sampled. The customer image and selected “Look” are provided to the iPhone 7’s image display system, which includes the iPhone 7’s display controller (e.g. GPU) as shown, for example, below. The display controllers (e.g. GPU) generates a composite image by combining the customer image and the apparel style image.
106. iOS devices on which the Get the Look App is installed such as, for example, the iPhone 7 further include a trigger device, coupled to the controller, that detects the presence of the customer and, in response, causes the composite image to be displayed by the image display system. For example, iPhone 7 devices on which the Get the Look App are installed include a trigger device comprising the iPhone 7 camera and the Get the Look software for detecting a face.
The ’843 Patent specification describes “suitable trigger devices” as including “but are not limited to, keypads, card readers, touch screens, cameras or the like or combinations of such devices.
When activated, each trigger device 116 informs the controller 102 of the presence of a customer 114 near a display screen, thereby initiating display of an appropriate composite image.” The iPhone 7 camera under control of the Get the Look software detects the presence of a customer’s face and, upon detecting a face, displays a composite image comprising the face and one or more sample makeup items.
107. iOS devices on which the Get the Look App is installed further comprise an apparatus wherein the trigger device is associated with the potential purchase item, and wherein the one of the at least one apparel style image used to generate the composite image corresponds to the potential purchase item. For example, the trigger device detects the presence of a customer’s face and, upon detecting a face, the trigger device automatically displays a given makeup item on the user’s face as a composite image. The makeup item presented corresponds to a potential purchase item, as the makeup item may be purchased using the Get the Look App.
https://itunes.apple.com/us/app/get-the-look-rimmel-london/id1120244830
108. iOS devices on which the Get the Look App is installed further comprise an apparatus comprising a trigger device, coupled to the controller, that detects a presence of the customer and activates the image capture system in response to detecting presence of the customer, wherein the trigger device detects the presence of the customer based on a proximity of the customer with respect to the image display system. For example customer’s iOS devices include a trigger device comprising an internal camera and the Get the Look software for detecting the
trigger device 116 informs the controller 102 of the presence of a customer 114 near a display screen, thereby initiating display of an appropriate composite image.” The iPhone 7 camera under control of the Get the Look software detects the presence of a customer’s face and, upon detecting a face, activates the image capture system. If the customer’s face is too far away from or too close to the camera, for example, Get the Look will not detect the presence of the customer. Thus, by detecting the proximity of the customer’s face to the image display system, the Get the Look App detects the presence of the customer.
109. iOS devices on which the Get the Look App is installed further comprise an apparatus wherein the image capture system repeatedly captures images until the controller determines that a valid image has been obtained for use with a composite image. For example, as shown below, the Get the Look App repeatedly captures customer images while the customer is aligning their face within the detection area. When the Get the Look App determines that the customer’s face is properly aligned, the Get the Look App determines that a valid customer image has been obtained for use with a composite image.
110. Accordingly, Defendant has been and is now directly infringing one or more claims of the ’843 Patent in violation of 35 U.S.C. § 271(a), by making, using, selling, offering for sale or importing in the United States its Accused Instrumentalities, which manipulate a customer image corresponding to a customer.
111. 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 Instrumentalities. Defendant induces such
infringement by at least making its Accused Instrumentalities available to customers and providing links and directions to the same as well as providing instructions on their proper use and operation.
112. On October 12, 2015, Plaintiff sent a letter to Defendant and notified Defendant that its ManiMatch App infringes the ’843 Patent and that Defendant should obtain a license to practice the invention.
113. On November 4, 2015, Defendant responded to Plaintiff’s letter and asserted its intention to continue to infringe the ’843 Patent and refusal to obtain a license to the ’843 Patent.
114. Hence, with respect to the accused ManiMatch App, Defendant has engaged in the infringing activities described above knowingly and, at least from the time of receipt of Plaintiff’s letter of October 12, 2015, has done so with the knowledge that such activity encourages end users to directly infringe the ’843 Patent.
115. Defendant’s infringement of the ’843 Patent has been and continues to be willful.
116. 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.
117. 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
PRAYER FOR RELIEF WHEREFORE, Plaintiff requests the following relief:
(a) A judgment in favor of Plaintiff that Defendant has directly infringed and/or has 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 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;
(e) A judgment awarding Plaintiff its costs as provided under Fed. R. Civ. P. 54(d)(1);
(f) A judgment for pre- and post-judgment interest on all damages awarded;
(g) A judgment awarding Plaintiff post-judgment royalties; and
(h) Any and all such further necessary or proper relief as this Court may deem just and equitable.
Dated: May 1, 2019 Respectfully submitted,
BUETHER JOE &CARPENTER,LLC By: /s/ Michael D. Ricketts
Christopher M. Joe (pro hac vice) [email protected] Eric W. Buether (pro hac vice) [email protected] Michael D. Ricketts (pro hac vice) [email protected] Michael C. Pomeroy (pro hac vice) [email protected] 1700 Pacific Avenue
Suite 4750
Dallas, Texas 75201
Telephone: (214) 730-5653 Facsimile: (214) 730-4698 ATTORNEYS FOR PLAINTIFF
LENNON IMAGE TECHNOLOGIES,LLC
