Case 2:13-cv-00235-JRG-RSP Document 63 Filed 05/13/14 Page 1 of 7 PageID #: 1073
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
LENNON IMAGE TECHNOLOGIES, LLC, § § Plaintiff, § § Civil Action No. 2:13-cv-235 v. § § LEAD CASE MACY’S RETAIL HOLDINGS, INC., et al., § § Defendants. §
LENNON IMAGE TECHNOLOGIES, LLC, § § Plaintiff, § § Civil Action No. 2:13-cv-239 v. § § CONSOLIDATED LUXOTTICA USA, et al., § § Defendants. §
PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT TO LUXOTTICA RETAIL NORTH AMERICA, INC.; LUXOTTICA U.S. HOLDINGS CORPORATION; AND LUXOTTICA USA LLC D/B/A RAY-BAN;
Plaintiff Lennon Image Technologies, LLC (“LIT”) files this Complaint against
Luxottica Retail North America, Inc., Luxottica U.S. Holdings Corporation, and Luxottica USA
LLC d/b/a Ray-Ban (collectively “Defendants”) and alleges as follows:
PARTIES
1. Plaintiff LIT is a Texas Limited Liability Company with its principal place of
business at 1910 East Southeast Loop 323, #244, Tyler, Texas 75701.
2. Upon information and belief, Defendant Luxottica Retail North America, Inc. is
an Ohio Corporation with a principal place of business located at 4000 Luxottica Place, Mason,
PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT AGAINST LUXOTTICA RETAIL NORTH AMERICA; LUXOTTICA U.S. HOLDINGS CORP.; AND LUXOTTICA USA LLC D/B/A RAY-BAN Page 1 Case 2:13-cv-00235-JRG-RSP Document 63 Filed 05/13/14 Page 2 of 7 PageID #: 1074
Ohio 45040. Luxottica U.S. Holdings Corporation is a Delaware corporation with a principal
place of business at 12 Harbor Park Drive, Port Washington, New York 11050. Luxottica USA
LLC is a New York limited liability company with a principal place of business at 12 Harbor
Park Drive, Port Washington, New York 11050. Defendants have been served with process.
BACKGROUND
3. On information and belief, Defendants are in the business of manufacture, design,
distribution and sale of sun and prescription eyewear.
4. On information and belief, Defendants engage in electronic commerce conducted
on and using at least, but not limited to, the websites http://www.ray-ban.com/usa and
http://www.ray-ban.com/usa/science/virtual-mirror.
5. On information and belief, Defendants own, operate, and/or direct the operation
of the website http://www.ray-ban.com/usa, which has software and apparatus for manipulating a
customer image corresponding to a customer (“Virtual Mirror”) at http://www.ray-
ban.com/usa/science/virtual-mirror
6. On information and belief, Defendants engage in electronic commerce conducted
on and using at least, but not limited to, the website http://www.sunglasshut.com/us.
7. On information and belief, Defendants own, operate, and/or direct the operation
of the website http://sunglasshut.com/us, which uses the Virtual Mirror software and apparatus
for manipulating a customer image corresponding to a customer.
8. On information and belief, Defendants engage in commerce at Sunglass Hut
locations.
PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT AGAINST LUXOTTICA RETAIL NORTH AMERICA; LUXOTTICA U.S. HOLDINGS CORP.; AND LUXOTTICA USA LLC D/B/A RAY-BAN Page 2 Case 2:13-cv-00235-JRG-RSP Document 63 Filed 05/13/14 Page 3 of 7 PageID #: 1075
9. On information and belief, Defendants own, operate, and/or direct in-store,
interactive kiosks (“Social Sun”) at Sunglass Hut locations that utilize computer tablets with the
Virtual Mirror software and apparatus.
10. On information and belief, Defendants own, operate, and/or direct at least one in-
store Sunglass Hut vending machine with the Virtual Mirror software and apparatus in at least its
Times Square Flagship Store.
11. On information and belief, Defendants engaged in electronic commerce
conducted on and using at least, but not limited to, the website http://www.vogue-
eyewear.com/us from at least August 2008 through July 2009.
12. On information and belief, Defendants owned, operated, directed, and/or made
available their products on the website http://www.vogue-eyewear.com/us, from at least August
2008 through July 2009, which used the Virtual Mirror software and apparatus for manipulating
a customer image corresponding to a customer.
13. On information and belief, Defendants engage in electronic commerce conducted
on and using at least, but not limited to, the websites http://www.glasses.com/ and
http://www.glasses.com/virtual-try-on.html.
14. On information and belief, Defendants own, operate, and/or direct the operation
of the website http://www.glasses.com/, which has an apparatus for manipulating a customer
image corresponding to a customer (“Virtual Try On Application”), currently available for
download for the iPhone, iPad, and Android devices via http://www.glasses.com/virtual-try-
on.html.
15. On information and belief, Defendants have tested and/or use the Virtual Mirror
and the Virtual Try On Application.
PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT AGAINST LUXOTTICA RETAIL NORTH AMERICA; LUXOTTICA U.S. HOLDINGS CORP.; AND LUXOTTICA USA LLC D/B/A RAY-BAN Page 3 Case 2:13-cv-00235-JRG-RSP Document 63 Filed 05/13/14 Page 4 of 7 PageID #: 1076
16. Defendants currently provide and/or have provided users with access to the above
listed websites and the ability to download, upload, and/or install software required to operate the
Virtual Mirror and Virtual Try On Application.
17. Defendants currently provide and/or have provided users with access to at least
the above listed kiosks and vending machine so that users may use and/or operate the Virtual
Mirror and/or the Virtual Try-On Application.
18. Defendants direct users to operate the Virtual Mirror and the Virtual Try On
Application, for example, by providing instructions on proper use and operation of such software
and apparatuses.
JURISDICTION AND VENUE
19. This is an action for patent infringement arising under the patent laws of the
United States of America, Title 35, United States Code.
20. This Court has original jurisdiction over the subject matter of this action pursuant
to 28 U.S.C. §§ 1331 and 1338(a).
21. Upon information and belief, Defendants are subject to this Court’s general and/or
specific personal jurisdiction because they (a) are residents of the State of Texas; (b) have
designated an agent for service of process in the State of Texas; (c) have committed acts of
infringement in the State of Texas as alleged below; and/or (d) are engaged in continuous and
systematic activities in the State of Texas.
22. Venue is proper in this district under 28 U.S.C. §§ 1391(c) and 1400(b). On
information and belief, Defendants have 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.
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THE PATENT-IN-SUIT
23. On September 23, 2003, the United States Patent and Trademark Office issued
United States Patent No. 6,624,843 (“the ’843 Patent”) entitled “Customer Image Capture and
Use Thereof in a Retailing System,” a true copy of which is attached as Exhibit A.
24. LIT 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.
CLAIM 1 – INFRINGEMENT OF U.S. PATENT NO. 6,624,843
25. Defendants have been and are 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 the above listed websites, kiosks, vending machine, and/or other
Defendant owned software or device that has an apparatus for manipulating a customer image
corresponding to a customer, such as the Virtual Mirror and the Virtual Try On Application
(“accused instrumentalities”).
26. In addition and/or in the alternative, Defendants have been and/or are now
indirectly infringing one or more claims of the ’843 Patent and are continuing to engage in such
indirect infringement in violation of 35 U.S.C. § 271(b) by inducing visitors to the above listed
websites, kiosks, vending machine, and/or other Defendant owned software or device that has an
apparatus for manipulating a customer image corresponding to a customer, such as the Virtual
Mirror and the Virtual Try On Application, to directly infringe the ’843 Patent through their use
of the infringing instrumentalities. Defendants induce such infringement by at least making the
accused instrumentalities available to end users, furnishing end users with necessary software to
operate the accused instrumentalities, and/or providing end users with instructions on operation
PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT AGAINST LUXOTTICA RETAIL NORTH AMERICA; LUXOTTICA U.S. HOLDINGS CORP.; AND LUXOTTICA USA LLC D/B/A RAY-BAN Page 5 Case 2:13-cv-00235-JRG-RSP Document 63 Filed 05/13/14 Page 6 of 7 PageID #: 1078
and use of the accused instrumentalities. Defendants engage in such activities knowingly and, at
least from the time of receipt of the original complaint, have done so with the knowledge that
such activity encourages end users to directly infringe the ’843 Patent.
27. As a direct and proximate consequence of the acts and practices of the Defendants
in infringing, directly and/or indirectly, one or more claims of the ’843 Patent, LIT 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.
28. The limitation of the damages provision of 35 U.S.C. § 287(a) is not applicable to LIT. DEMAND FOR JURY TRIAL
29. Pursuant to Rule 38 of the Federal Rules of Civil Procedure, LIT requests a trial
by jury of any issues so triable.
PRAYER FOR RELIEF
WHEREFORE, Lennon Image Technologies, LLC requests entry of judgment that:
1. Defendants have infringed the patent-in-suit;
2. Defendants account for and pay to Plaintiff all damages caused by their
infringement of the patent-in-suit;
3. Plaintiff be granted pre-judgment and post-judgment interest on the
damages caused to it by reason of one or more of Defendants’ patent infringement;
4. The Court declare this an exceptional case and that Plaintiff be granted
reasonable attorneys’ fees in accordance with 35 U.S.C. § 285;
5. Costs be awarded to Plaintiff; and
6. Plaintiff be granted such other and further relief as the Court may deem
just and proper under the circumstances.
PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT AGAINST LUXOTTICA RETAIL NORTH AMERICA; LUXOTTICA U.S. HOLDINGS CORP.; AND LUXOTTICA USA LLC D/B/A RAY-BAN Page 6 Case 2:13-cv-00235-JRG-RSP Document 63 Filed 05/13/14 Page 7 of 7 PageID #: 1079
Dated: May 13, 2014 Respectfully submitted,
BUETHER JOE & CARPENTER, LLC
By: /s/ Niky Bukovcan Christopher M. Joe (Lead Counsel) State Bar No. 00787770 [email protected] Eric W. Buether State Bar No. 03316880 [email protected] Niky Bukovcan State Bar No. 24078287 [email protected] Monica Tavakoli State Bar No. 24065822 [email protected]
1700 Pacific Avenue Suite 4750 Dallas, Texas 75201 Telephone: (214) 466-1278 Facsimile: (214) 635-1831
ATTORNEYS FOR PLAINTIFF LENNON IMAGE TECHNOLOGIES
CERTIFICATE OF SERVICE
The undersigned hereby certifies that all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document via the Court’s CM/ECF system per Local Rule CV-5(a) on this 13th day of May, 2014. Any other counsel of record will be served by facsimile transmission.
/s/ Niky Bukovcan Niky Bukovcan
PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT AGAINST LUXOTTICA RETAIL NORTH AMERICA; LUXOTTICA U.S. HOLDINGS CORP.; AND LUXOTTICA USA LLC D/B/A RAY-BAN Page 7