Krieg v. TOFOTL: Voluntary Dismissal in Illinois Patent Infringement Action

Introduction

When a patent infringement complaint ends not with a jury verdict but with a unilateral withdrawal, the strategic calculus behind that decision deserves careful examination. In Philip Krieg v. The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associates Identified on Schedule A (Case No. 1:24-cv-11524), the Northern District of Illinois saw plaintiff Philip Krieg voluntarily dismiss his infringement action against defendant TOFOTL without prejudice on July 2, 2025 — just 236 days after filing.

The case, presided over by Chief Judge Sunil R. Harjani, closed before TOFOTL filed an answer or any dispositive motion. Under Federal Rule of Civil Procedure 41(a)(1)(A)(i), Krieg exercised his right to dismiss as a matter of right, with each party bearing its own attorneys’ fees and costs.

While the absence of a merits ruling limits direct precedential value, this case offers meaningful insights into patent assertion strategy, Schedule A litigation tactics, and the procedural leverage available to both plaintiffs and defendants in IP disputes filed in Illinois.

Case Overview

The Parties

The Patent(s) and Product(s) at Issue

The case record does not disclose the specific patent number(s) or accused product(s) involved in this action. The verdict cause is classified broadly as an “Infringement Action.” This absence of granular claim data is not uncommon in early-stage or quickly resolved Schedule A matters, where complaints are sometimes filed with limited public detail before defendants are individually served.

Note: Parties seeking patent-specific information should consult the PACER docket for Case No. 1:24-cv-11524 or the USPTO Patent Full-Text Database.

Legal Representation

Krieg was represented by a well-resourced plaintiff team from two firms: Bishop Diehl & Lee, Ltd. (attorneys Edward L. Bishop and Nicholas S. Lee) and Dickinson Wright PLLC (Benjamin Adam Campbell, Briana Hammons, and Sameeul Haque). No defense counsel of record appeared, consistent with the procedural posture: TOFOTL never formally entered the litigation.

Litigation Timeline & Procedural History

Filed on November 8, 2024, this case followed a trajectory common to Schedule A patent litigation in the Northern District of Illinois — a jurisdiction known for its plaintiff-friendly procedural infrastructure in IP enforcement matters involving e-commerce defendants.

The case moved from a multi-defendant Schedule A complaint to a single-defendant action within approximately four months. That amendment, recorded at Docket 27, is a significant procedural signal — it typically reflects settlements, service failures, or strategic narrowing of claims. By July 2025, with TOFOTL having never answered or moved for summary judgment, Krieg invoked Rule 41(a)(1)(A)(i) to exit the litigation cleanly.

Chief Judge Sunil R. Harjani, a respected jurist in the Northern District, managed the docket during this period, though no substantive rulings on the merits appear to have been issued.

The Verdict & Legal Analysis

Outcome

The case closed on July 2, 2025, via voluntary dismissal without prejudice under Fed. R. Civ. P. 41(a)(1)(A)(i). No damages were awarded. No injunctive relief was granted. Each party was ordered to bear its own attorneys’ fees and costs. Because the dismissal was without prejudice, Krieg retains the legal right to refile claims against TOFOTL, subject to applicable statutes of limitations.

Verdict Cause Analysis

The procedural basis for dismissal — Rule 41(a)(1)(A)(i) — is significant. This rule permits a plaintiff to dismiss without court order at any point before the defendant serves an answer or a motion for summary judgment. Because TOFOTL never appeared or filed a responsive pleading, Krieg possessed an unconditional right to dismiss. No judicial approval was required, and the court’s role was essentially ministerial.

This means no claim construction occurred, no validity challenges were litigated, and no infringement findings were made. The merits of the underlying patent dispute remain entirely unresolved and unaddressed by the court.

Legal Significance

From a precedential standpoint, this case contributes no new law. However, it does illuminate the lifecycle of Schedule A patent litigation as practiced in the Northern District of Illinois:

• Multi-defendant complaints are filed broadly, often targeting numerous e-commerce sellers simultaneously
• TROs and preliminary injunctions may issue early to freeze assets or stop sales (whether such relief was sought here is not reflected in available data)
• Defendants who engage — appearing, answering, and contesting claims — force plaintiffs to either litigate on the merits or settle
• Defendants who do not appear may face default proceedings, or, as here, may be dismissed when litigation economics or strategic objectives shift

The without-prejudice nature of the dismissal is a critical detail for practitioners: it preserves future optionality for the patent holder without conceding anything on the merits.

Strategic Takeaways

For Patent Holders:

• Voluntary dismissal without prejudice is a powerful tool when defendants fail to engage, preserving the right to refile while cutting litigation costs
• Schedule A complaints allow efficient assertion against multiple defendants, but require ongoing case management as defendants are resolved individually
• Narrowing to a single defendant (as occurred here with the Dkt. 27 amendment) may reflect successful resolution against other parties — a positive signal for monetization strategy

For Accused Infringers:

• Failing to appear in patent litigation carries real risk, including default judgment exposure — even if a plaintiff ultimately dismisses, non-appearance is a high-stakes gamble
• Design-around analysis and freedom-to-operate (FTO) reviews remain essential before entering markets where IP assertion activity is high
• TOFOTL’s non-appearance meant no legal costs but also no protective ruling — the without-prejudice dismissal leaves them exposed to future claims

For R&D and Product Teams:

• E-commerce product categories targeted by Schedule A litigation warrant proactive IP clearance
• Monitoring Northern District of Illinois Schedule A filings provides early warning of enforcement campaigns in your product space