Push Data, LLC v. Kroger Co. — Voluntarily Dismissed With Prejudice
Push Data, LLC filed suit against grocery giant Kroger in the Eastern District of Texas, asserting three patents covering geographical web browser methods and systems. The case ended 155 days later when Push Data voluntarily dismissed its own claims with prejudice before Kroger had even filed an answer — permanently extinguishing those claims against this defendant.
A pre-answer dismissal with prejudice that closes the door permanently
On December 20, 2023, Push Data, LLC filed an infringement action against The Kroger Company in the Eastern District of Texas (Case No. 4:23-cv-01121), before Judge Amos L. Mazzant. The suit asserted three U.S. patents — US7292844B2, US7058395B2, and US7212811B2 — all directed to geographical web browser technology, covering methods, apparatus, and systems for location-aware browsing and data delivery.
On May 23, 2024 — just 155 days after filing and before Kroger had served an answer — Push Data filed a notice of voluntary dismissal with prejudice under Federal Rule of Civil Procedure 41(a)(1)(A)(i). Because Kroger had not yet answered, no court order was required. The dismissal was expressly with prejudice, meaning Push Data permanently relinquished its right to bring these same claims against Kroger on these patents.
The sub-answer timeline and the with-prejudice designation are both commercially significant. The rapid exit — before any substantive litigation — suggests a negotiated resolution, licensing arrangement, or strategic reassessment may have occurred off the record, though the public docket is silent on the precise rationale. The with-prejudice election removes any possibility of refiling, which is an unusually final outcome for a plaintiff-initiated voluntary dismissal at this early stage.
Filing to Voluntary dismissal in 155 days
155 days — resolved before defendant answered; well below median E.D. Texas patent trial duration
Dismissed with prejudice: what the Rule 41 exit means for both parties
Rule 41(a)(1)(A)(i) — plaintiff’s right to dismiss before answer
Federal Rule of Civil Procedure 41(a)(1)(A)(i) permits a plaintiff to dismiss an action without a court order by filing a notice of dismissal at any time before the defendant serves an answer or a motion for summary judgment. Because Kroger had not yet answered, Push Data exercised this right unilaterally. Critically, the notice expressly designated the dismissal as with prejudice — a stricter outcome than the rule’s default, which would be without prejudice.
Rule 41(a)(1)(A)(i) — no court order neededWith prejudice: Push Data cannot refile these claims against Kroger
A dismissal with prejudice operates as a final adjudication on the merits, permanently barring Push Data from asserting US7292844B2, US7058395B2, and US7212811B2 against Kroger in any future action. This is a materially stronger outcome for Kroger than a without-prejudice dismissal, which would have left Push Data free to refile. The public record does not disclose whether a settlement, license, or other agreement accompanied this election.
Permanent bar on refiling vs. KrogerPush Data exits before costs escalate — but surrenders future leverage
By dismissing before Kroger answered, Push Data avoided the expense of claim construction, discovery, and potential invalidity challenges. However, the with-prejudice designation surrendered all future leverage against Kroger on these three patents. For a patent assertion entity, this is an unusual concession at the pre-answer stage and suggests the strategic calculus shifted materially after filing — possibly due to a licensing outcome or assessment of claim strength.
Claims against Kroger permanently extinguishedPatents remain live against other defendants — risk persists for the sector
The dismissal with prejudice applies only to Kroger. US7292844B2, US7058395B2, and US7212811B2 remain enforceable, and Push Data retains the right to assert them against other companies operating location-aware or geographical web browser systems. Retailers, mapping platforms, and location-based service providers in similar product categories should monitor these patents for future enforcement activity.
Patents still active — sector-wide risk remainsFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | Push Data, LLC | Company | Patent assertion entity — holder of US7292844B2, US7058395B2, and US7212811B2Search in Eureka ↗ |
| Defendant | Kroger, Co. | Company | Kroger Co. — major U.S. grocery and retail chain, represented by Pillsbury Winthrop Shaw Pittman LLPSearch in Eureka ↗ |
| Plaintiff counsel | Trevor James Beaty | Attorney | Counsel for Push Data, LLCSearch in Eureka ↗ |
| Plaintiff law firm | Shea Beaty | Law Firm | Representing Push Data, LLCSearch in Eureka ↗ |
| Defendant counsel | Benjamin Kiersz | Attorney | Counsel for Kroger, Co.Search in Eureka ↗ |
| Defendant counsel | William P. Atkins | Attorney | Counsel for Kroger, Co.Search in Eureka ↗ |
| Defendant law firm | Pillsbury Winthrop Shaw Pittman LLP | Law Firm | Representing Kroger, Co.Search in Eureka ↗ |
| Defendant law firm | Pillsbury Winthrop Shaw Pittman LLP – VA | Law Firm | Representing Kroger, Co.Search in Eureka ↗ |
| Presiding judge | Judge Amos L. Mazzant | Judge | Texas Eastern District CourtSearch in Eureka ↗ |
Official order — verbatim text
The dismissal notice invokes Rule 41(a)(1)(A)(i) and expressly designates the termination as with prejudice — a plaintiff-elected, final disposition that carries the legal weight of a merits adjudication. No court order was issued or required. The ‘each party bears its own costs’ clause forecloses any fee-shifting argument under 35 U.S.C. § 285, suggesting both sides accepted a clean exit. The combination of with-prejudice designation and mutual cost-bearing is most consistent with a negotiated resolution reached before substantive litigation commenced.
US7292844B2, US7058395B2 & US7212811B2 — Geographical Web Browser Technology
The three asserted patents — US7292844B2, US7058395B2, and US7212811B2 — share a common technical lineage in geographical web browsing: methods, apparatus, and systems for delivering, navigating, and interacting with web content in a location-aware context. Filed in the mid-2000s (application numbers 11/603022, 11/262731, and 11/099486), these patents predate the ubiquity of smartphone mapping and represent foundational claims in the convergence of geospatial data and browser-based interfaces.
In a retail context, the claims are potentially relevant to any system that serves location-personalised web content, powers store-finder or geofencing features, or routes users to geographically relevant digital resources through a browser interface. For a company of Kroger’s scale — operating thousands of locations with location-aware digital touchpoints — the exposure surface is material. The patents’ age does not diminish their enforceability, and their continued assertion post-dismissal against other parties remains a live commercial risk for the sector.
Should your team run an FTO against US7292844B2, US7058395B2, and US7212811B2?
Any organisation deploying geographical or location-aware web browsing functionality — including retail store locators, geofenced promotional delivery, mapping-integrated e-commerce interfaces, or location-contextual content platforms — should evaluate freedom to operate against these three patents. The fact that Push Data was willing to assert them against a major national retailer suggests the claim scope is perceived as commercially broad.
PatSnap Eureka’s FTO Search Agent allows R&D and product teams to map specific product features against the claim language of US7292844B2, US7058395B2, and US7212811B2, identify prior art that may support invalidity arguments, and surface related continuation or family patents that could extend the risk perimeter. Running an FTO before deployment of any location-aware web product is a commercially prudent step given the active enforcement posture visible in this case.
Run a freedom-to-operate analysis on US7292844B2 to assess your product’s exposure
Run FTO in Eureka →Similar geographical web browser patent cases in E.D. Texas
Explore related infringement actions involving geographical web browser and location-aware technology patents litigated in the Eastern District of Texas.
What this case signals for the geographical web browser IP landscape
A pre-answer dismissal with prejudice in E.D. Texas rarely occurs without strategic context — here is what it means for the sector.
Pre-answer exits in E.D. Texas often signal off-docket resolution
When a plaintiff voluntarily dismisses with prejudice before the defendant has even answered, it typically signals that a negotiated outcome — whether a license, covenant not to sue, or settlement — was reached privately. The public record here is silent, but the pattern is consistent with a licensing play targeting a single defendant to establish value before broader enforcement.
Three patents in one suit raises the enforcement stakes for similar platforms
Push Data’s decision to assert three geographical web browser patents simultaneously against a major retailer suggests a portfolio enforcement strategy rather than a single-patent dispute. Companies offering location-aware retail platforms, store-finder tools, or geospatial browsing interfaces should treat this case as a signal to audit exposure across all three patents — not just the lead patent.
Push v Kroger — key questions answered
Push Data, LLC filed a patent infringement suit against Kroger Co. in the Eastern District of Texas on December 20, 2023, asserting three geographical web browser patents. The case was voluntarily dismissed with prejudice by Push Data on May 23, 2024 — 155 days after filing — before Kroger had served an answer, with each party bearing its own costs.
Dismissal with prejudice permanently bars Push Data from asserting the same claims — under US7292844B2, US7058395B2, and US7212811B2 — against Kroger in any future action. However, the patents remain valid and enforceable against other defendants. Rule 41(a)(1)(A)(i) allowed Push Data to file this dismissal without a court order because Kroger had not yet answered.
Push Data asserted three patents: US7292844B2 (application 11/603022), US7058395B2 (application 11/262731), and US7212811B2 (application 11/099486). All three cover geographical web browser technology — methods, apparatus, and systems for location-aware web browsing and data delivery.
A with-prejudice voluntary dismissal at the pre-answer stage is uncommon and typically suggests a private resolution — such as a licensing agreement, covenant not to sue, or settlement — was reached off the public record. It may also reflect a strategic reassessment of claim strength or litigation economics, particularly if the defendant’s counsel signalled a strong invalidity position early in negotiations.
No. The dismissal with prejudice applies exclusively to the claims against Kroger Co. Push Data retains full enforcement rights under US7292844B2, US7058395B2, and US7212811B2 against any other defendant. Companies operating location-aware retail platforms, geographical browsing systems, or geofencing-based web services should monitor these patents for future assertion activity.
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