Case 6:22-cv-00648-ADA Document 1 Filed 06/22/22 Page 1 of 12
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`Plaintiff,
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`LEXOS MEDIA IP, LLC,
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`
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`v.
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`EBAY, INC.,
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`
`
`Defendant.
`
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`§
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`Civil Action No. 22-648
`
`PLAINTIFF LEXOS MEDIA IP, LLC’S
`COMPLAINT FOR PATENT INFRINGEMENT
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`
`
`
`
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`Plaintiff Lexos Media IP, LLC (“Lexos Media IP”) files this Complaint for patent
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`infringement against Defendant eBay, Inc. (“eBay”), and alleges as follows:
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`PARTIES
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`1.
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`Plaintiff Lexos Media IP, LLC (“Lexos Media IP”) is a limited liability company
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`organized and existing under the laws of the State of Delaware, with its principal place of business
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`located at 555 Republic Drive, 2nd Floor, Plano, Texas 75074-5481. Lexos Media IP is the
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`intellectual property holding company of Lexos Media, Inc. (“Lexos Media”) and owns intellectual
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`property associated with the business of that company. Lexos Media IP has had its principal place
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`of business located in Plano, Texas since 2015.
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`2.
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`Lexos Media was founded in 2009. Lexos Media is a digital advertising technology
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`company that pioneered the use of dynamic cursor modification to promote the online purchase
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`and use of products and services likely of interest to users of e-commerce websites. Lexos Media
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`has provided a technology framework for delivering online advertising in which images and
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`content are deployed in connection with a cursor. Lexos Media has provided this technology
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`PLAINTIFF LEXOS MEDIA IP, LLC’S COMPLAINT
`FOR PATENT INFRINGEMENT AGAINST EBAY, INC.
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`Page 1
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`Case 6:22-cv-00648-ADA Document 1 Filed 06/22/22 Page 2 of 12
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`framework through two divisions -- AdBull and Cursor Marketing -- both of which provided
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`technology that could be used to modify an Internet user’s cursor to display content such as an
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`image or other message to promote the online purchase and use of products and services. Lexos
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`Media IP has been engaged in licensing this technology both in the online marketing space as well
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`as other fields.
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`3.
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`eBay is a Delaware corporation with its principal executive office located at 2145
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`Hamilton Ave, San Jose, CA 95125. eBay can be served through its registered agent for service
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`of process in Texas at CT Corporation System, 1999 Bryan Street, Ste. 900, Dallas, Texas 75201-
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`3136.
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`JURISDICTION AND VENUE
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`4.
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`This is an action for patent infringement arising under the patent laws of the United
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`States of America, Title 35, United States Code.
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`5.
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`This Court has original jurisdiction over the subject matter of this action pursuant
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`to 28 U.S.C. §§ 1331 and 1338(a).
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`6.
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`eBay is subject to the specific personal jurisdiction of this Court because Lexos
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`Media IP’s claims for patent infringement against eBay arise from eBay’s acts of infringement in
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`the State of Texas. These acts of infringement include operating an interactive website using the
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`patented inventions and making that website available to persons in the State of Texas, facilitating
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`the sale of products and services through that website to those persons.
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`7.
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`In particular, eBay has operated an online marketplace located at www.ebay.com
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`and provides the infringing cursor marketing technology that is part of that marketplace throughout
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`the United States and in this judicial district. eBay sells and offers to sell products and services
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`throughout the United States, including in this judicial district, by using the patented cursor
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`PLAINTIFF LEXOS MEDIA IP, LLC’S COMPLAINT
`FOR PATENT INFRINGEMENT AGAINST EBAY, INC.
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`Page 2
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`Case 6:22-cv-00648-ADA Document 1 Filed 06/22/22 Page 3 of 12
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`modification technology. For at least a decade, eBay generated tens of billions of dollars in gross
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`merchandise volume using the patented technology.
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`8.
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`Therefore, this Court has personal jurisdiction over eBay under the Texas long-arm
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`statute, TEX. CIV. PRAC. & REM. CODE § 17.042.
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`9.
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`In addition, since 2011, eBay has had a regular and established place of business in
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`the Western District of Texas located at 7700 W. Parmer Lane, Bldg. D, Austin, Texas 78729.
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`eBay has committed the acts of infringement alleged herein at its regular and established place of
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`business in the Western District of Texas, and elsewhere throughout the United States.
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`10.
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`In particular, eBay, during the time frame when the Asserted Patents were in effect,
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`made available and offered its ebay.com interactive website to individuals located in the Western
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`District of Texas. The ebay.com website provided by eBay to these individuals implemented
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`features and functionality that infringed the Asserted Patents.
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`11.
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`The eBay facility located in the Western District of Texas is a physical,
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`geographical location in the district from which the business of eBay is carried out. This facility
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`located in the Western District of Texas is a regular and established places of business of eBay.
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`Furthermore, this facility located in the Western District of Texas is a place of business of eBay.
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`THE ASSERTED PATENTS
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`12.
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`On November 30, 1999, the United States Patent and Trademark Office issued
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`United States Patent No. 5,995,102 (“the `102 Patent”) entitled “Server system and method for
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`modifying a cursor image,” a true copy of which is attached as Exhibit 1.
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`13.
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`On September 12, 2000, the United States Patent and Trademark Office issued
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`United States Patent No. 6,118,449 (“the `449 Patent”) entitled “Server system and method for
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`modifying a cursor image,” a true copy of which is attached as Exhibit 2.
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`PLAINTIFF LEXOS MEDIA IP, LLC’S COMPLAINT
`FOR PATENT INFRINGEMENT AGAINST EBAY, INC.
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`14.
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`Lexos Media IP is the owner by assignment of these Asserted Patents and owns all
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`right, title, and interest in the Asserted Patents, including the right to sue for and recover all past,
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`present, and future damages for infringement of the Asserted Patents.
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`THE INNOVATION OF THE ASSERTED PATENTS
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`The Asserted Patents are directed to improvements in the field online advertising,
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`15.
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`and provide technical solutions to problems being encountered in that burgeoning field. In order
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`to put the innovation of the Asserted Patents into perspective, it bears emphasis that the application
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`for the asserted `102 Patent was filed in June 1997, a mere few years after online advertisements
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`emerged in the ecommerce marketplace. See https://en.wikipedia.org/wiki/Online_advertising.
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`16. At the time of the invention underlying the Asserted Patents, there were several
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`drawbacks to prevalent forms of online advertising, such as banner advertisements, web page
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`“frames,” and “self-appearing” advertising screens. Thus, as the Asserted Patents
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`emphasized, at the time of the invention of the Asserted Patents, “[t]here is a need for a simple
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`means to deliver advertising elements without the annoyance of totally interrupting and
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`intrusive content delivery, and without the passiveness of ordinary banner and frame
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`advertisements which can be easily ignored.”
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`17.
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`The Asserted Patents provided a specific technical solution to improve online
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`advertising technology and overcome these problems. The specification of the Asserted
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`Patents pointed out that, while it was not new at the time for pointers and cursors to change
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`shape, “[i]n conventional systems, the appearance of the cursor or pointer does not change to
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`correspond with on-line content being displayed on the screen.”
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`18.
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`The claims of the Asserted Patents explain how the invention improves on
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`conventional methods of online advertising. In particular, the Asserted Patents disclosed “a
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`PLAINTIFF LEXOS MEDIA IP, LLC’S COMPLAINT
`FOR PATENT INFRINGEMENT AGAINST EBAY, INC.
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`Page 4
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`Case 6:22-cv-00648-ADA Document 1 Filed 06/22/22 Page 5 of 12
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`server system for modifying a cursor image to a specific image displayed on a video
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`monitor of a remote user’s terminal for the purposes of providing on-screen advertising.”
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`19.
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`The claims of the Asserted Patents specifically teach how the invention works
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`to provide the improved online advertising technology. A web browser retrieves a web page
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`stored on a server that is then transmitted to and viewed by a user. The retrieved web page
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`contains a set of predetermined instructions referred to as “cursor display instructions.”
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`The browser interprets the information contained in cursor display instructions and instructs
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`the operating system of the user’s terminal to bring about the change in appearance of the
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`cursor within the web page. As the Asserted Patents explain, “the server system provides
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`certain information that causes the cursor image on the video monitor of the user terminal to
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`display an image as specified by the server system. As a result, the server system remotely
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`defines and manages the shape and appearance of the cursor image in accordance with a
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`pre-specified condition.”
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`20.
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`The claims of the Asserted Patents contain steps or elements that embody this
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`specific process for implementing the cursor modification invention and improving online
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`advertising. The claims focus on a specific means or method that improves online advertising
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`technology, and are not directed to a desired result that itself is merely employs generic processes
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`and machinery. They claim a technological solution
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`to
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`the
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`technological problems and
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`drawbacks encountered in the prior art methods for creating effective online advertising – a
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`specific process and system for modifying the appearance of a cursor implemented on the display
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`of a user’s computer. The asserted claims are directed to a new and useful technique for performing
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`online advertising. They are not directed to a law of nature, natural phenomena, or a business
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`method or algorithm.
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`PLAINTIFF LEXOS MEDIA IP, LLC’S COMPLAINT
`FOR PATENT INFRINGEMENT AGAINST EBAY, INC.
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`Case 6:22-cv-00648-ADA Document 1 Filed 06/22/22 Page 6 of 12
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`THE ESTABLISHED VALIDITY OF THE ASSERTED PATENTS
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`In 2018, Ralph Lauren (“RL”) petitioned the U.S. Patent Trial and Appeal Board
`21.
`(the “PTAB”) for inter partes review of the `102 and `449 Patents. In particular, RL petitioned
`for inter partes review of claims 70-73 of the ’102 Patent and claims 1-3, 5-7, 12-15, 27-29, 31-
`33, 38-41, 53-56, 58-63, 72-75, and 77-82 of the ’449 Patent. Although the PTAB cancelled some
`of the claims, in two final written decisions it found that RL had not shown that the claims 70
`and 72 of the ’102 Patent and claims 1-3, 5-7, 12-15, 28, 29, 31, 32, 38, 39, 53-56, 58-63, 73-75,
`and 77-80 of the `449 Patent are unpatentable. RL appealed the PTAB’s final written decisions,
`and the Federal Circuit affirmed those decisions.
`THE CURSOR MODIFICATION ACCUSED INSTRUMENTALITY
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`22.
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`eBay is a multinational company which focuses on e-commerce through its
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`ebay.com interactive website. At the end of 2021, eBay had 147 million active buyers and 17
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`million sellers. In 2021, eBay had approximately 1.5 billion live listings globally. One of the
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`innovations eBay has used to build the popularity and profitability of its ebay.com website is the
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`cursor modification technology of the Asserted Patents (the “Accused Instrumentality”).
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`FIRST CLAIM FOR RELIEF
`(Infringement of the ’102 Patent)
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`23.
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`eBay has directly infringed Claim 72 of the ’102 Patent by using the method
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`claimed and patented in Claim 72. In particular, eBay has infringed Claim 72 by using the claimed
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`method when providing the cursor modification technology to individuals for use on the ebay.com
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`website.
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`24.
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`At all times relevant to the asserted claims, the Accused Instrumentality has
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`comprised a method for modifying an initial cursor image displayed on a display of a user terminal
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`connected to at least one server owned, operated and/or controlled by eBay.
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`PLAINTIFF LEXOS MEDIA IP, LLC’S COMPLAINT
`FOR PATENT INFRINGEMENT AGAINST EBAY, INC.
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`25.
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`The method performed by eBay via the Accused Instrumentality has included the
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`step of eBay receiving a request at an eBay server to provide specified content information to a
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`user terminal.
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`26.
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`The method performed by eBay via the Accused Instrumentality has included the
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`step of eBay providing specified content information to the user terminal in response to the request,
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`which includes a cursor display instruction and an indication of cursor image data corresponding
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`to a specific image.
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`27.
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`The method performed by eBay via the Accused Instrumentality has included the
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`step of eBay providing cursor display instructions and cursor display code that controls and
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`transforms the initial cursor image displayed on the display of the user’s terminal into the shape
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`and appearance a specific image in response to eBay’s cursor display instruction.
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`28.
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`The specified content information provided by eBay via its server has included
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`information that is to be displayed on the display of the user’s terminal.
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`29.
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`The transformed specific image resulting from eBay’s infringing process has
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`included content corresponding to at least a portion of the information that is to be displayed on
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`the display of the user's terminal.
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`30.
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`eBay’s cursor display instruction has indicated a cursor display code provided and
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`controlled by eBay that has been operable to process the cursor display instruction to modify the
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`initial cursor image to the cursor image in the shape and appearance of the specific image
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`responsive to movement of the cursor image over a display of at least a portion of the information
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`to be displayed on the display of the user's terminal.
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`PLAINTIFF LEXOS MEDIA IP, LLC’S COMPLAINT
`FOR PATENT INFRINGEMENT AGAINST EBAY, INC.
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`31.
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`To the extent that any required steps of the claim occurred on a device in the
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`possession, custody and control of and used by a third party, eBay performed those steps because
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`it initiated and controlled the performance of those steps.
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`32.
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`The duty to mark under 35 U.S.C. § 287 is inapplicable to the asserted method
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`claims of the `102 Patent. There is no applicable marking requirement that has not been complied
`
`with.
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`33.
`
`Lexos Media IP has been damaged by eBay’s activities that infringed Claim 72 of
`
`the `102 Patent.
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`SECOND CLAIM FOR RELIEF
`(Infringement of the `449 Patent)
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`34.
`
`eBay has directly infringed at least Claims 1, 38, and 53 of the `449 Patent by using
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`those patented inventions in connection with providing individuals with access to the eBay.com
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`website and to shop for products and services on the website. By doing so, eBay has infringed
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`Claims 1 and 38 of the `449 Patent by using the claimed system and making that system and the
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`eBay.com website available to others for use. In addition, eBay has infringed Claim 53 of the `449
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`Patent by using the claimed method when providing the eBay.com website for use by others.
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`35.
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`In accordance with Claim 1 of the ’449 Patent, at all times relevant to the asserted
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`claims, the Accused Instrumentality has comprised a server system for modifying a cursor image
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`to a specific image having a desired shape and appearance displayed on a display of a remote user’s
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`terminal.
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`36.
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`eBay’s Accused Instrumentality has included cursor image data corresponding to
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`the specific image.
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`37.
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`eBay’s Accused Instrumentality has included cursor display code which is operable
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`to modify the cursor image.
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`PLAINTIFF LEXOS MEDIA IP, LLC’S COMPLAINT
`FOR PATENT INFRINGEMENT AGAINST EBAY, INC.
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`38.
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`eBay’s Accused Instrumentality has included a server computer for transmitting
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`specified content information to a remote user terminal which has included at least one cursor
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`display instruction indicating a location of cursor image data. eBay’s cursor display instruction
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`and cursor display code has been operable to cause the user terminal to display a modified cursor
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`image on the user's display in the shape and appearance of the specific image.
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`39.
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`eBay, through one of its server computers, has transmitted specified content
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`information to a user’s terminal in response to a request from the user terminal for the specified
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`content information.
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`40.
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`eBay’s specified content information has further comprised information to be
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`displayed on the display of the user's terminal which has included content corresponding to at least
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`a portion of the information to be displayed on the display of the user's terminal.
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`41.
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`eBay’s cursor display code has been operable to process the cursor display
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`instruction to modify the cursor image to a cursor image in the shape and appearance of the specific
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`image in response to movement of the cursor image over a display of at least a portion of the
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`information to be displayed on the display of the user’s terminal.
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`42.
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`The specific image has related to at least a portion of the information to be displayed
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`on the display of the remote user's terminal.
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`43.
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`eBay, through the Accused Instrumentality, has used the claimed system for
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`purposes of infringement by putting the invention into service. In particular, eBay has controlled
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`each element of the system and the system as a whole and has obtained a benefit from doing so in
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`the form of improved marketing of products and services sold by eBay through its website. eBay
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`has provided and controlled any functionality required by the claimed system that has taken place
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`on the user/customer’s computer.
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`PLAINTIFF LEXOS MEDIA IP, LLC’S COMPLAINT
`FOR PATENT INFRINGEMENT AGAINST EBAY, INC.
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`Case 6:22-cv-00648-ADA Document 1 Filed 06/22/22 Page 10 of 12
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`44.
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`In accordance with Claim 53 of the ’449 Patent, at all times relevant to the asserted
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`claims, eBay’s Accused Instrumentality has comprised a method for modifying an initial cursor
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`image displayed on a display of a user terminal connected to at least one server owned, operated
`
`and/or controlled by eBay.
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`45.
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`In addition, the specific image generated in response to eBay’s cursor display
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`instruction has a shape and appearance relating to the information to be displayed.
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`46.
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`In this connection, Plaintiff incorporates by reference its allegation in Paragraphs
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`27-34 above.
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`47.
`
`The duty to mark under 35 U.S.C. § 287 is inapplicable to the asserted method
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`claim of the `449 Patent, and there are no unmarked ‘patented articles’ that were sold or offered
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`for sale by Lexos Media IP or its licensees of the `449 Patent that were subject to § 287. In addition,
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`Lexos Media marked its website, lexosmedia.com, with the patent numbers of the Asserted
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`Patents. Consequently, Lexos Media IP has complied with the marking requirement under § 287,
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`to the extent it is applicable.
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`48.
`
`Lexos Media IP has been damaged by eBay’s infringing activities.
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`DEMAND FOR JURY TRIAL
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`49.
`
`Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Lexos Media IP
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`hereby demands a trial by jury of all issues so triable.
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`PRAYER FOR RELIEF
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`WHEREFORE, Lexos Media IP requests the following relief:
`
`(a)
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`A judgment in favor of Lexos Media IP that eBay has directly infringed one or more
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`claims of the Asserted Patents;
`
`(b)
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`A judgment and order requiring eBay to pay Lexos Media IP damages adequate to
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`compensate for infringement under 35 U.S.C. § 284, which, in no event shall be less than a
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`PLAINTIFF LEXOS MEDIA IP, LLC’S COMPLAINT
`FOR PATENT INFRINGEMENT AGAINST EBAY, INC.
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`Page 10
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`reasonable royalty for its usage made of the inventions of the Asserted Patents, including pre- and
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`post-judgment interest and costs;
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`(c)
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`A judgment awarding Lexos Media IP post-judgment royalties to the extent
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`applicable; and
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`(d)
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`Any and all such further necessary or proper relief as this Court may deem just and
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`equitable.
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`PLAINTIFF LEXOS MEDIA IP, LLC’S COMPLAINT
`FOR PATENT INFRINGEMENT AGAINST EBAY, INC.
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`Page 11
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`Case 6:22-cv-00648-ADA Document 1 Filed 06/22/22 Page 12 of 12
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`Dated: June 22, 2022
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`
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`Respectfully submitted,
`
`BUETHER JOE & COUNSELORS, LLC
`
`
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`
`
`
`
`
`
`/s/ Eric W. Buether
`Eric W. Buether (Lead Counsel)
`State Bar No. 03316880
`Eric.Buether@BJCIPLaw.com
`Christopher M. Joe
`State Bar No. 00787770
`Chris.Joe@BJCIPLaw.com
`Kenneth P. Kula
` State Bar No. 24004749
` Ken.Kula@BJCIPLaw.com
`
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`ATTORNEYS FOR PLAINTIFF
`LEXOS MEDIA IP, LLC
`
`
`1700 Pacific Avenue
`Suite 4750
`Dallas, Texas 75201
`Telephone:
`(214) 466-1271
`Facsimile:
`(214) 635-1827
`
`PLAINTIFF LEXOS MEDIA IP, LLC’S COMPLAINT
`FOR PATENT INFRINGEMENT AGAINST EBAY, INC.
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`Page 12
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