Overjet, Inc. v. VideaHealth, Inc. (D. Mass. 24-cv-10446).

Overjet makes and sells dental scanning devices that incorporate AI for diagnostic purposes.  Overjet obtained a patent on the technology in 2021, and says it is the only dental AI company with FDA approval for this type of technology.  Overjet uses a naming convention for its software products of “Overjet _____ Assist” (such as “Overjet Caries Assist” and “Overjet Carting Assist”, and obtained a federal trademark registration for DENTAL ASSIST and copyright registrations on both its software code and the screen displays that the code generates.  Overjet asserts that Videa, which also offers AI-assisted dental diagnostic products and utilizes a “Videa _____ Assist” naming convention, changed the appearance of its result displays to copy that of Overjet, and that as a result, Videa won a large contract for which Overjet had been in direct competition.  Overjet asserted patent, trademark and copyright infringement and unfair competition, and Videa moved to dismiss the copyright and patent infringement claims and the unfair competition claims.

The Complaint asserted that Overjet had copyright in the use of white to represent enamel, purple to be pulp, red to be decay, and bright green lines to represent measurements of bone levels.  Videa said that the use of common colors and shapes is not entitled to protection as it is not sufficiently original and serves only a functional purpose, but Judge Burroughs found that the combination and arrangement of these features meets the “minimum degree of creativity” threshold of copyright law.  She further noted that, while the color scheme does serve a functional purpose, the particular colors were not dictated by that function.  Finally, she determined that, while the AI software determines on a case-by-case basis which portions of an individual x-ray would be depicted in the particular colors, it was a human being who initially selected those colors to represent the various specific dental features, and thus the color scheme was not AI-created.  Accordingly, she denied the motion to dismiss the copyright claim.

Judge Burroughs also denied the motion with respect to the Lanham Act unfair competition and false designation of origin claims.  While Videa correctly noted that such a claim is subject to dismissal where it is merely duplicative of a copyright or patent infringement claim, she found the complaint sufficiently alleged that Videa had also made false and misleading statements about its software capabilities in its advertising that would be likely to cause confusion as to the origin or sponsorship of the software.

Judge Burroughs found that the state and common law unfair competition claims were likewise not duplicative of the patent and copyright counts and instead were based on the totality of the circumstances, including the alleged false advertising, such as allegedly falsely asserting that it had received FDA clearance for the functionality of the software.  These allegations made the claims qualitatively different from the patent or copyright claims.

Judge Burroughs finally rejected Videa’s Alice challenge to the asserted patent claims.  She determined that Videa’s characterization of the claims improperly focused on a few high-level phrases to oversimplify the content of the claims as a whole, and that the claims in total claimed more than simply acquiring and analyzing an image in a general sense.  Instead, the claims set forth in detail the elimination of an external calibration object, instead utilizing the individual patient’s anatomical structures to calculate the calibration measurements.  She found that this results in a method that improves the relevant technology over how it would be performed by hand.  As such, the claims satisfied the first prong of the two-prong Alice test, namely that they were not directed to an abstract idea.