govinfo:USCOURTS-txed-2_25-cv-00529-0

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF TEXAS 
MARSHALL DIVISION 
 
AR DESIGN INNOVATIONS LLC, 
 Plaintiff, 
v. 
LOWE’S COMPANIES, INC., 
 Defendant. 
§ 
§ 
§ 
§ 
§ 
§ 
§ 
§ 
CIVIL ACTION NO. 2:25-CV-00529-JRG 
 
MEMORANDUM OPINION AND ORDER 
Before the Court is Defendant Lowe’s Companies, Inc.’s (“Defendant,” or “Lowe’s”) 
Motion to Dismiss Plaintiff’s Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) (the 
“Motion”). (Dkt. No. 31.) Having considered the Motion and all related briefing, the Court finds 
that it should be and hereby is GRANTED AS MODIFIED. 
I. BACKGROUND 
Plaintiff AR Design Innovations LLC (“Plaintiff,” or “AR Design”) filed the above -
captioned case against Lowe’s on May 15, 2025, asserting infringement of at least claim 1 of U.S. 
Patent No. 7,277,572 (the “’572 patent”) . (Dkt. No. 1.) Lowe’s filed a motion to dismiss AR 
Design’s initial complaint on August 4, 2025. (Dkt. No. 22.) In response, AR Design filed its First 
Amended Complaint (the “FAC”) on August 18, 2025, still asserting infringement of at least claim 
1 of the ’572 Patent. (Dkt. No. 26.) The FAC remains operative in the above -captioned case and 
is the subject of Lowe’s Motion. (Dkt. No. 31.) 
The ’572 patent is generally directed to resolving “technical problems related to 
computerized three-dimensional modeling systems, particularly problems related to the utilization 
of technology for rendering and manipulating in real-time 3D objects on a client computer with a 
user-selected or user -generated interior scene.” (Dkt. No. 26 at ¶ 35.) The accused products are PageID #: 
<pageID>
2 
 
Lowe’s augmented reality (“AR”) products and tools, “including but not limited to the [AR] tool 
and the ‘3D model’ tool available on Defendant’s mobile applications” (the “Lowe’s Mobile app”). 
(Id. at ¶ 41.) In particular, the FAC focuses on “features allowing users to view Lowe’s products 
in their space.” (Id.) 
II. LEGAL AUTHORITY 
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted 
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 66, 678 
(2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)). A claim is plausible 
on its face where “the pleaded factual content allows the court to draw the reasonable inference 
that the defendant is liable for the misconduct alleged.” Id . at 663 (citing Twombly, 550 U.S. at 
570). This plausibility requirement does not require that a plaintiff prove its case at the pleading 
stage, but it “‘calls for enough fact[s] to raise a reasonable expectation that discovery will reveal’ 
that the defendant is liable for the misconduct alleged.’” In re Bill of Lading Transmission and 
Processing Sys. Patent Litig., 681 F.3d 1323, 1341 (Fed. Cir. 2012) (quoting Twombly , 550 U.S. 
at 556). The Court must “accept all well-pleaded facts in the complaint as true and view the facts 
in the light most favorable to the plaintiff.” O’Daniel v. Indus. Serv. Sols., 922 F.3d 299, 304 (5th 
Cir. 2019). However, the Court should “not credit a complaint’s legal conclusions or threadbare 
recitals of the elements of a cause of action.” Mandawala v. Ne. Baptist Hosp., Counts 1, 2, & 11, 
16 F.4th 1144, 1150 (5th Cir. 2021) (internal citation omitted). 
III. ANALYSIS 
Lowe’s asserts that all of AR Design’s theories of both direct and indirect infringement in 
the FAC should be dismissed. (Dkt. No. 31.) Overall, Lowe’s asks the Court to dismiss the FAC PageID #: 
<pageID>
3 
 
“in its entirety with prejudice.” (Id. at 1.) The Court takes up Lowe’s arguments as to each of AR 
Design’s theories of infringement in turn below. 
A. Direct Infringement 
Lowe’s separates AR Design’s direct infringement theories into two categories: “principal” 
and “alternative” theories of direct infringement. Within the “principal” category, Lowe’s includes 
discussion of both “AR Design’s direct infringement theory based on Lowe’s itself performing all 
steps” and “AR Design’s divided infringement theory.” (Dkt. No. 31 at i.) Within the “alternative” 
category, Lowe’s urges the Court to dismiss AR Design’s theories of direct infringement which 
rely on making or providing software, as well as “testing.” (Id. at 17-19.) These theories are each 
addressed in their own sub-section below. 
1. AR Design’s “Principal” Direct Infringement Theory 
First, Lowe’s asserts that AR Design’s primary direct infringement theory, that Lowe’s 
itself performs all of the steps in claim 1 of the ’572 patent , fails because “AR Design pleads no 
facts plausibly showing that Lowe’s itself performs steps carried out on third- party mobile 
devices.” (Dkt. No. 31 at 10.) AR Design responds that “[b]ecause AR Design’s direct 
infringement allegations are clearly based on the fact that Defendant itself performs each and every 
step of asserted claim 1, Defendant’s arguments about the user’s performance or involvement in 
performing the method of claim 1… are irrelevant at this stage. Any reference to Defendant’s users 
in the FAC, claim chart, or infringement contentions are ancillary.” (Dkt. No. 32 at 6-7.) 
The core of this disagreement between the parties rests on whether AR Design’s pleadings 
“allege[] that certain claimed steps are executed on third -party mobile devices and require user 
involvement,” as Lowe’s asserts. (Dkt. No. 31 at 9.) While AR Design responds that references to 
Lowe’s users in the FAC are merely “ancillary,” the FAC includes pages of discussion regarding PageID #: 
<pageID>
4 
 
the Lowe’s Mobile app. The FAC specifically describes how “users may download [Lowe’s 
Mobile app] from Apple’s App Store and Google Play to their mobile devices.” (Dkt. No. 26 at ¶ 
42.) The FAC goes on to describe the accused products as “[AR] tools available on Lowe’s mobile 
applications, which are accessible on mobile devices.” (Id. at ¶ 56.) The corresponding claim chart 
states on its first page that “[t]he combination of server-side and client-side software, firmware, 
and app, which are all provided by Lowe’s directly performs each step of at least claim 1 of the 
’572 patent.” (Dkt. No. 26-3 at 1 (emphasis added).) The claim chart explicitly includes the use of 
a customer mobile device in its contentions at multiple points, such as where it states that step (d) 
is met “via use of a smartphone camera, to selectively obtain and display the 3D scene in a plurality 
of views.” (Id. at 6.) 
Accordingly, the Court finds that AR Design’s conclusory argument that its “direct 
infringement allegations are clearly based on the fact Defendant itself performs each and every 
step of asserted claim 1” (Dkt. No. 32 at 6) are insufficient. Both the FAC and the included claim 
chart expressly state that the contentions rely on a combination between Lowe’s own server-side 
items and the “client -side” mobile app, and no explanation is provided for how AR Design can 
reference this combination, and then in the s ame sentence go on to state that Lowe’s therefore 
directly performs each step of claim 1. The Court must treat all well- pleaded facts as true, but 
cannot accept this conclusory and internally inconsistent conclusion. 
2. Divided Infringement 
Second, Lowe’s asserts that AR Design fails to allege any facts supporting its alternative 
pleading that Lowe’s “directs and controls the end users of the Accused Products to perform each 
and every limitation of at least claim 1 of the ’572 patent.” (Dkt. No. 26 at ¶ 55.) AR Design 
responds that it has sufficiently pled that Lowe’s “conditions participation in the Accused Products PageID #: 
<pageID>
5 
 
on the performance of [the steps of claim 1]” by stating in its claim chart and infringement 
contentions that the AR and 3D model tools are available on Lowe’s Mobile app and presenting 
“Defendant’s documented promotion of these capabilities as a unified product.” (Dkt. No. 32 at 
11, citing Dkt. Nos. 26-3 and 32-1.) 
In its argument, AR Design cites generally to both its claim chart (attached to the FAC) 
and its infringement contentions, but does not identify a pincite to either which addresses divided 
infringement. The claim chart merely includes a statement that Lowe’s performs “and/or directs 
and controls end users of the Accused Products” to perform each step of claim 1, without any 
explanation as to how or why Lowe’s directs or controls the end users. (Dkt. No. 26-3.) The chart 
attached to AR Design’s infringement contentions similarly asserts that Lowe’s “performs the step 
of and/or instructs its agents, affiliates, and/or customers to perform the step [s] of [the asserted 
claims]” without further explanation. (Dkt. No. 32-1.) The FAC itself includes only the alternative 
pleading that Lowe’s “also directs and controls the end users.” (Dkt. No. 26 at ¶ 55.) AR Design 
cites to ¶¶ 40 -47 of the FAC as well, but these paragraphs merely introduce and describe the 
Lowe’s Mobile app. 
As this Court has previously acknowledged, “‘mere guidance or instruction is insufficient’ 
to establish the Akamai ‘conditioned benefit’ test.” Mullen Indus. LLC v. Samsung Elecs. Co., Ltd., 
2024 WL 4870768, at *5 (E.D. Tex. Nov. 21, 2024) (citing Eli Lilly & Co. v. Teva Parenteral 
Meds., Inc., 845 F.3d 1357, 1367 (Fed. Cir. 2017) and Travel Sentry, Inc. v. Tropp, 877 F.3d 1370, 
1379) (Fed. Cir. 2017)). Bare assertions that Lowe’s is directing and controlling users of its Mobile 
app, elaborated upon only by statements in AR Design’s infringement contentions that Lowe’s 
“instructs its… customers to perform the step[s],” are insufficient to establish that Lowe’s directs 
and controls its customers to infringe the ’572 patent as AR Design describes in its response. PageID #: 
<pageID>
6 
 
3. Direct Infringement Via Making Software 
Third, Lowe’s asserts that AR Design’s claims that Lowe’s infringes method claim 1 of 
the ’572 patent by “making” or “providing” software fail as a matter of law, because “[a] defendant 
cannot infringe a method claim by providing software that is merely capable of performing the 
steps of the claimed method.” (Dkt. No. 31 at 18.) AR Design responds that Lowe’s argument fails 
because it “omits any language regarding ‘use’ or ‘using’ in its selected citations to the FAC” on 
this theory. (Dkt. No. 32 at 13.) 
However, the allegations of Lowe’s “use” of the asserted products is addressed in the 
previous section. With regard to the allegations in the FAC that Lowe’s infringes claim 1 by 
“making” or “providing” software, the Court finds that these claims fail as well. Given that method 
claims are only infringed when the claimed process is performed, see Ormco Corp. v. Align Tech., 
Inc., 463 F.3d 1299, 1311 (Fed. Cir. 2006), the FAC must include some allegations of how or why 
the claimed method is actually performed when Lowe’s makes or provides the software. The mere 
addition of “makes” and “provides” to a list of boilerplate language for actions Lowe’s took 
regarding the AR tools does nothing to allege that the making or sale of the AR tools infringes 
method claim 1. Claim 1 recites a method “for generating and rendering a photorealistic three -
dimensional (3D) perspective view of a 3D object selectively positioned within a 3D scene,” 
comprising steps such as “communicably accessing a server with a client,” and “displaying a 3D 
scene with a GUI.” (Dkt. No. 26-1 at A-48.) There is no description in the FAC plausibly alleging 
that the steps of this claim are performed when Lowe’s makes or “provides” the accused products’ 
software. Caselaw squarely instructs that “the sale of an apparatus that is capable of infringing 
use” is not enough. Ormco, 463 F.3d at 1311. PageID #: 
<pageID>
7 
 
4. Direct Infringement Via Testing 
Finally, Lowe’s asserts that the Court should dismiss any references the FAC makes to 
infringement via its “testing.” This theory is mentioned only once, in the “Jurisdiction and Venue” 
section of the FAC, where AR Design states: “D efendant commits acts of infringement in this 
District, including, but not limited to, selling, offering for sale, and/or using (including through 
testing) the Accused Products.” (Dkt. No. 26 at ¶ 19 (emphasis added).) 
This Court has previously dismissed testing-based allegations where an allegation that the 
defendant infringes the asserted patent “by testing the accused process is merely part of a 
boilerplate sentence of potentially infringing actions.” Mullen , 2024 WL 4870768, at *4. Where 
AR Design has mentioned “testing” only a single time in its FAC, in a long string of alleged 
behaviors giving rise to Lowe’s alleged infringement, there can be no serious claim that the FAC 
provides the level of detail and notice required by the Twombly/Iqbal standard. While AR Design 
does not have to prove its case at the pleading stage, additional factual allegations are necessary to 
plead that Lowe’s has infringed the ’572 patent via its testing. 
5. AR Design Fails to State a Claim for Direct Infringement 
Given that each allegation of direct infringement contained in the FAC is not sufficiently 
pled, the Court finds that AR Design has ultimately failed to state a claim for direct infringement. 
B. Indirect Infringement 
Lowe’s asserts that AR Design’s indirect infringement claims fail because they are 
predicated upon Lowe’s alleged direct infringement, which the FAC does not properly plead, such 
that “all of AR Design’s indirect infringement claims lack an underlying act of direct 
infringement.” (Dkt. No. 31 at 16- 17.) Since the Court has found that AR Design did not 
adequately plead direct infringement, it must follow that AR Design cannot successfully allege PageID #: 
<pageID>
8 
 
indirect infringement. See, e.g., Nalco Co v. Chem -Mod, LLC, 883 F.3d 1337, 1355 (Fed. Cir. 
2018) (“It is axiomatic that there can be no inducement or contributory infringement without an 
underlying act of direct infringement”) (cleaned up). 
C. Dismissal With Versus Without Prejudice 
Lowe’s asserts that the Court’s dismissal of the FAC should be with prejudice. (Dkt. No. 
31 at 1.) AR Design, in response, seeks leave to amend if the Court grants dismissal of any part of 
the FAC. (Dkt. No. 32 at 15.) 
Since the Motion relates to Plaintiff’s FAC, Plaintiff may only amend its pleading with the 
Court’s leave. Fed. R. Civ. P. 15(a)(2). As Rule 15 instructs, “the court should freely give leave 
when justice so requires.” Id. A district court must possess a “substantial reason” to deny a request 
for leave to amend. Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004). The Fifth Circuit 
examines five considerations to determine whether to grant a party leave to amend a complaint: 
(1) undue delay, (2) bad faith or dilatory motive, (3) repeated failure to cure deficiencies by 
previous amendments, (4) undue prejudice to the opposing party, and (5) futility of the amendment. 
Id. 
The Court does not find that any of these considerations counsel in favor of a dismissal 
with prejudice in this case . Lowe’s focuses only on the futility of the amendment, asserting that 
since AR Design has already amended its FAC once any further amendments are futile. (Dkt. No. 
31 at 20.) However, with AR Design having only amended the FAC once before, the Court does 
not find that further amendment is automatically rendered futile. Additionally, the Court sees no 
indication that AR Design has engaged in undue delay, bad faith conduct, or repeated failures to 
cure deficiencies. Finally, the early stage of the case means that prejudice to Lowe’s from PageID #: 
<pageID>
9 
 
permitting additional amendments to the FAC is low. Accordingly, the Court dismisses the FAC 
WITHOUT PREJUDICE, and grants AR Design leave to amend. 
IV. CONCLUSION 
For the reasons stated herein, the Court finds that Lowe’s Motion to Dismiss (Dkt. No. 31) 
should be and hereby is GRANTED AS MODIFIED. The FAC is DISMISSED WITHOUT 
PREJUDICE, and AR Design’s request for leave to amend is GRANTED. It is ORDERED that 
AR Design file its second amended complaint on the docket within fourteen (14) days of this 
Order. 
 
 
 
.
____________________________________
RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE
So ORDERED and SIGNED this 2nd day of June, 2026. PageID #: 
<pageID>

Passage view · GavelSight