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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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No sooner had I finished reporting on a new wave of patent infringement lawsuits filed in March 2013 against retailers such as <a href="http://www.ditto.com/" target="_blank" rel="noreferrer noopener">Ditto Technologies</a>--the innovative leader in "virtual try-on" technology for eyewear--than I learned about a second lawsuit aimed specifically at Ditto that had been filed a month earlier, in February. &nbsp;Unlike the series of complaints filed by patent troll Lennon Image Technologies, this was filed by one of Ditto's direct competitors, 1-800-Contacts. &nbsp;And the story behind the lawsuit has internet activists like the Electronic Frontier Foundation up in arms.

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Ditto, a company of 15, launched just over a year ago. &nbsp;Its site features sharply executed, webcam-based augmented reality interactivity that shows users what they'd look like wearing any number of frames.

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This apparently caught the attention of its more-established competitor, 1-800-Contacts. &nbsp;<a href="https://www.eff.org/deeplinks/2013/04/1-800-contacts-buys-patent-squelch-competition" target="_blank" rel="noreferrer noopener">According</a> to the EFF, "1-800-Contacts' CEO went onto Ditto's website the very day it launched, presumably to investigate the upstart competitor's new technology. Having seen Ditto's product, 1-800-Contacts <strong>then</strong> went out and purchased a patent from a defunct company that claims to cover selling eyeglasses over a network using a 3D model of a user's face." &nbsp;To date, 1-800-Contacts still doesn't offer a competing service, but it says that it intends to launch one soon on its Glasses.com site.

What <a href="https://www.eff.org/deeplinks/2013/04/1-800-contacts-buys-patent-squelch-competition" target="_blank" rel="noreferrer noopener">angers</a> the EFF even more is the apparent strategy behind the lawsuit. &nbsp;Rather than seeking a royalty from Ditto, 1-800-Contacts "seems determined to put Ditto out of business. Period." &nbsp;Adding insult to injury, 1-800-Contacts chose to file its complaint in Utah, rather than in Ditto's home state of California or the patent infringement hotbeds of Delaware or Texas. &nbsp;All of this has the <a href="https://www.eff.org/deeplinks/2013/04/1-800-contacts-buys-patent-squelch-competition" target="_blank" rel="noreferrer noopener">EFF</a>, the <a href="http://www.digitalstyledigest.com/2013/04/patent-infringement-drama-hits-fashion-tech-with-ditto-vs-1-800-contacts-dispute/" target="_blank" rel="noreferrer noopener">fashion press</a>, and even <a href="https://www.eff.org/deeplinks/2013/02/help-eff-fight-patent-trolls-and-support-shield-act" target="_blank" rel="noreferrer noopener">Congress</a> asking whether litigation like this and the patents underlying them threaten to squelch innovation in software development.

With the broader augmented reality industry just beginning to come into its own, now is the right time to be asking these questions.

<a href="http://www.scribd.com/doc/127392718" target="_blank" rel="noreferrer noopener">1-800 Contacts v. DITTO Technologies</a>

<a href="http://www.scribd.com/embeds/127392718/content?start_page=1&amp;view_mode=scroll" target="_blank" rel="noreferrer noopener">http://www.scribd.com/embeds/127392718/content?start_page=1&amp;view_mode=scroll</a>

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Brian D. Wassom

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Double Whammy – Augmented Retailer Ditto Hit With Second Patent Lawsuit

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Double Whammy – Augmented Retailer Ditto Hit With Second Patent Lawsuit

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