Alpha Modus, Corp. v. The Kroger Co.

Case Overview and Background

This patent infringement action pits Alpha Modus, Corp., a publicly traded "vertical AI company," against The Kroger Co., one of the largest supermarket operators in the United States. Alpha Modus, which focuses on monetizing its intellectual property through licensing and enforcement, alleges that Kroger's in-store technologies infringe on its patents related to AI-driven retail solutions. This case is the second such lawsuit between the parties; a prior dispute filed in 2024 concerning different patents was settled confidentially in May 2025. The current case, filed on August 29, 2025, represents an escalation, with an amended complaint in November 2025 expanding the number of asserted patents to nine. Alpha Modus appears to be a non-practicing entity (NPE) or, more specifically, a patent assertion entity (PAE), given its business model centered on patent enforcement rather than product sales, a strategy it is pursuing against numerous other major retailers and technology companies.

The lawsuit accuses a wide array of Kroger's modern retail systems of infringement. These include customer analytics platforms like Barrows Connected Store and 84.51°, AI-powered marketing and shelving systems such as Kroger Precision Marketing and EDGE smart shelving, and frictionless shopping technologies like KroGO smart carts and "Scan, Bag, Go". Alpha Modus claims these systems unlawfully use its patented methods for real-time consumer monitoring, AI-powered advertising, advanced inventory management, and personalized marketing. The initial complaint asserted seven patents, with the amended complaint adding two more. One of the originally asserted patents is U.S. Patent No. 10,360,571, which generally covers methods for monitoring and analyzing consumer behavior in real-time to enable targeted engagement.

The case is proceeding in the U.S. District Court for the Eastern District of Texas (E.D. Tex.), a venue historically favored by patent plaintiffs, particularly NPEs, for its expertise in patent matters and procedures often seen as favorable to patentees. Though its dominance has waned somewhat after the Supreme Court's TC Heartland decision on venue, the district remains a top choice for patent litigation. This case is notable as part of a broader, systematic enforcement campaign by Alpha Modus, which has filed over 20 similar lawsuits against other major retail and tech companies like Lowe's, Circle K, and MNTN. This aggressive, multi-front litigation strategy, targeting foundational technologies for modern AI-driven retail, positions the Kroger case as a key bellwether for a significant patent assertion campaign impacting a major sector of the U.S. economy.

As a senior US patent litigation analyst, here is a summary of the key legal developments and the current posture of the Alpha Modus, Corp. v. The Kroger Co. litigation as of May 8, 2026.

Background on Alpha Modus's Litigation Campaign

Before detailing the instant case, it is important to note that this lawsuit is part of a broader patent enforcement campaign initiated by Alpha Modus, Corp., a subsidiary of the publicly-traded Alpha Modus Holdings, Inc. (NASDAQ: AMOD). The company holds a portfolio of patents related to in-store retail technologies, including real-time consumer behavior analysis, AI-driven personalization, and intelligent inventory systems. Alpha Modus has filed numerous lawsuits against major retailers and technology companies. Notably, Alpha Modus and Kroger had a prior legal dispute (Case No. 2:24-cv-00022) involving different patents related to "Cooler Screens" technology, which was settled confidentially in May 2025.

Key Legal Developments in Case 2:25-cv-00923

Filing & Initial Pleadings

• 2025-08-29: Initial Complaint Filed
  Alpha Modus, Corp. filed a patent infringement lawsuit against The Kroger Co. in the U.S. District Court for the Eastern District of Texas. The original complaint asserted seven patents, alleging that various Kroger technologies—including its analytics platforms (Barrows Connected Store, Everseen Visual AI, 84.51°), marketing systems (Kroger Precision Marketing), and in-store hardware (KroGO smart carts, EDGE shelving)—infringed on its intellectual property.

• 2025-11-12: Amended Complaint Filed
  Alpha Modus filed an Amended Complaint (Dkt. 15), expanding the scope of the lawsuit. The amended filing increased the number of asserted patents from eight to nine, adding U.S. Patent No. 10,853,825 and the recently issued U.S. Patent No. 12,423,718. The core infringement allegations against Kroger's suite of in-store AI and computer-vision systems remained.

Pre-Trial Motions

• 2025-12-29: Kroger's Motion to Dismiss
  In response to the expanded allegations, The Kroger Co. filed a Motion to Dismiss the Amended Complaint. The specific grounds for this motion have not been detailed in publicly available documents, but such motions typically challenge the sufficiency of the infringement allegations under Rule 12(b)(6) or raise arguments of patent ineligibility under 35 U.S.C. § 101.

• Status of Motion to Dismiss and Kroger's Answer
  As of early May 2026, the court has not yet issued a ruling on Kroger's motion to dismiss. The filing of a responsive pleading from Kroger (its Answer to the Amended Complaint) is likely pending the outcome of this dispositive motion.

Current Status and Future Proceedings

The case, assigned to Chief District Judge Rodney Gilstrap, remains active and is in the early stages of litigation.

• Discovery and Claim Construction
  The parties are proceeding with discovery as outlined by the court's scheduling order. A key upcoming event is the Claim Construction (Markman) Hearing, which is scheduled for March 22, 2027. This hearing will be crucial, as the court's interpretation of disputed patent claim terms will significantly shape the scope of the case moving forward.

• Trial and Final Disposition
  No trial date has been set. Given the current schedule, a trial would not be expected until late 2027 or 2028. There has been no public announcement of any settlement discussions in this specific case. The litigation is proceeding toward claim construction.

Parallel PTAB Proceedings

A search of the USPTO Patent Trial and Appeal Board (PTAB) database shows no records of inter partes review (IPR) or post-grant review (PGR) proceedings having been filed by The Kroger Co. against any of the patents asserted by Alpha Modus in this case, including U.S. Patent No. 10,360,571. Therefore, the district court litigation is not currently impacted by any parallel PTAB challenges between these parties.

Counsel for Plaintiff Alpha Modus, Corp.

Plaintiff Alpha Modus, Corp. has retained the high-stakes litigation firm Susman Godfrey L.L.P. as lead counsel, supported by local counsel from Ward, Smith & Hill, PLLC, a well-regarded East Texas firm.

Lead Counsel

• Alexandra G. (Lexie) White (Lead Counsel)

  • Firm: Susman Godfrey L.L.P., Houston, TX.
  • Experience: A partner on Susman Godfrey's Executive Committee, White has secured multiple jury verdicts exceeding $100 million for plaintiffs and is recognized for her work in patent and commercial litigation.

• Rocco Magni

  • Firm: Susman Godfrey L.L.P., Houston, TX.
  • Experience: A partner recognized as a "Rising Star" by Texas Lawyer and Law360, Magni has significant trial experience in complex intellectual property and commercial disputes, including representing clients in patent actions involving major telecommunications carriers.

• Ian B. Crosby

  • Firm: Susman Godfrey L.L.P., Seattle, WA.
  • Experience: Recognized as a leading authority on AI law, Crosby leads major copyright and patent cases against tech giants and was named to Business Insider's "2024 AI Power List".

• Nick Spear

  • Firm: Susman Godfrey L.L.P., Los Angeles, CA.
  • Experience: A partner recognized as a "Rising Star" by Super Lawyers, Spear litigates high-stakes intellectual property, securities, and antitrust matters across the country.

Local Counsel

• Johnny Ward

  • Firm: Ward, Smith & Hill, PLLC, Longview, TX.
  • Experience: A veteran East Texas trial lawyer who has appeared in over 500 patent infringement cases and tried nearly 60 cases to a jury verdict before transitioning his practice to mediation in late 2024.

• Wesley Hill

  • Firm: Ward, Smith & Hill, PLLC, Longview, TX.
  • Experience: Recognized for his courtroom success in patent litigation, Hill has a notable track record in intellectual property cases in the Eastern District of Texas.

Counsel for Defendant The Kroger Co.

Public docket records for the U.S. District Court for the Eastern District of Texas indicate that The Kroger Co. is represented by attorneys from the Dallas-based litigation boutique Lynn Pinker Hurst & Schwegmann, LLP. While specific filings detailing every attorney's precise role are not all publicly available, the key counsel who have appeared are identified below.

• Chris Schwegmann (Lead Counsel)

  • Firm: Lynn Pinker Hurst & Schwegmann, LLP (Dallas)
  • Note: As the firm's managing partner and a name partner, Schwegmann is a trial lawyer with a focus on complex business and intellectual property disputes, including patent, trademark, and antitrust cases.

• Michael K. Hurst (Lead Counsel)

  • Firm: Lynn Pinker Hurst & Schwegmann, LLP (Dallas)
  • Note: A name partner at the firm, Hurst is a veteran commercial trial lawyer with extensive experience in high-stakes business disputes and has been recognized for his trial work for major companies.

• Andrés Correa (Of Counsel)

  • Firm: Lynn Pinker Hurst & Schwegmann, LLP (Dallas)
  • Note: A partner at the firm, Correa is a bilingual trial lawyer with significant experience in intellectual property matters, trade secret misappropriation, and complex commercial litigation for clients in the software and technology sectors.

There is no indication in the publicly available records of any in-house counsel from Kroger or separate local counsel having filed a notice of appearance as of May 8, 2026. The team from Lynn Pinker Hurst & Schwegmann appears to be serving as Kroger's sole counsel of record in this matter.