RFCyber Corp. v. Kroger Co. — Mobile Payment Patent Suit Dismissed With Prejudice
RFCyber Corp. asserted US patent 8,448,855 — covering mobile payment technology — against 19 Kroger-family grocery and pharmacy apps before Judge Rodney Gilstrap in the Eastern District of Texas. After 393 days of litigation, RFCyber voluntarily dismissed its own case with prejudice, permanently extinguishing its claims against Kroger.
RFCyber’s mobile payment claims against Kroger end with a prejudicial exit
On July 18, 2024, RFCyber Corp. — a mobile payment technology licensor — filed suit against Kroger Co. in the Eastern District of Texas, asserting infringement of US8,448,855B1. The patent, filed under application number US13/400038, covers mobile payment platform methods and systems. RFCyber alleged that 19 Kroger-family apps — spanning brands from the Kroger App and Harris Teeter App to Ralph’s, Fred Meyer, and QFC — infringed its protected technology.
On August 15, 2025, RFCyber filed a Notice of Voluntary Dismissal With Prejudice under Federal Rule of Civil Procedure 41(a)(1)(A)(i). Judge Rodney Gilstrap accepted and acknowledged the notice, formally dismissing all claims with prejudice. A dismissal with prejudice is a final adjudication on the merits: RFCyber is permanently barred from re-filing the same claims against Kroger on this patent. Kroger effectively achieved a clean exit without a trial or an invalidity ruling on the patent itself.
At 393 days, the case resolved faster than the typical E.D. Texas patent trial timeline, suggesting the parties may have reached a private resolution — though the public record is silent on any settlement terms. The with-prejudice designation is notable: it went beyond what a simple nuisance dismissal requires and raises the possibility that Kroger negotiated this as a condition of any resolution. What drove RFCyber to abandon its claims — whether claim construction risk, prior art exposure, or a confidential agreement — remains unknown from the docket.
Filing to Voluntary dismissal in 393 days
393 days litigated — resolved before trial in E.D. Texas, where median patent cases run ~2 years
Dismissed with prejudice: what the voluntary exit means for both parties
Rule 41(a)(1)(A)(i) dismissal with prejudice — a permanent close
FRCP 41(a)(1)(A)(i) permits a plaintiff to dismiss without a court order before the opposing party serves an answer or a summary judgment motion. When coupled with ‘with prejudice,’ the dismissal is treated as a final judgment on the merits. RFCyber cannot refile the same patent claims against Kroger in any federal court. Judge Gilstrap’s acceptance formalised this finality on the docket.
Permanent bar on refilingRFCyber permanently surrenders its infringement claims against Kroger
By dismissing with prejudice, RFCyber gave up more than it had to: a voluntary dismissal without prejudice would have preserved the option to refile. The with-prejudice designation is self-imposed and final. This may indicate a negotiated resolution — or that RFCyber assessed its litigation position as untenable. Either way, its US8,448,855 enforcement avenue against Kroger is permanently closed under the public record.
Claims permanently extinguishedKroger exits without an invalidity ruling — a qualified win
Kroger achieves dismissal of all 19 app-related infringement claims without the court ever adjudicating validity or infringement of US8,448,855. While this is commercially favourable, the patent itself remains in force. Kroger cannot assert issue preclusion on invalidity grounds since no merits ruling was made. The 19 apps operate free from RFCyber’s claims in this action, but the patent remains a potential future risk from other enforcement routes.
Clean exit, no merits rulingMobile retail payment apps remain exposed to US8448855 licensing pressure
RFCyber’s decision to dismiss with prejudice against Kroger does not extinguish the patent — US8,448,855 remains granted and enforceable against other grocery, retail, and pharmacy app operators. Companies running integrated mobile payment platforms similar to the 19 Kroger apps should treat this dismissal as a signal to evaluate FTO exposure. RFCyber’s litigation history suggests a licensing-forward strategy targeting mobile commerce ecosystems.
Patent still live vs. third partiesFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | RFCyber, Corp. | Company | Mobile payment technology licensor — holder of US8448855B1Search in Eureka ↗ |
| Defendant | Kroger, Co. | Company | Kroger Co. — U.S. national grocery retailer operating 19 consumer-facing mobile appsSearch in Eureka ↗ |
| Plaintiff counsel | Alfred Ross Fabricant | Attorney | Counsel for RFCyber, Corp.Search in Eureka ↗ |
| Plaintiff counsel | Jacob Daniel Ostling | Attorney | Counsel for RFCyber, Corp.Search in Eureka ↗ |
| Plaintiff counsel | Justin Kurt Truelove | Attorney | Counsel for RFCyber, Corp.Search in Eureka ↗ |
| Plaintiff counsel | Peter Lambrianakos | Attorney | Counsel for RFCyber, Corp.Search in Eureka ↗ |
| Plaintiff counsel | Richard Matthew Cowell | Attorney | Counsel for RFCyber, Corp.Search in Eureka ↗ |
| Plaintiff counsel | Vincent J. Rubino , III | Attorney | Counsel for RFCyber, Corp.Search in Eureka ↗ |
| Plaintiff law firm | Fabricant LLP | Law Firm | Representing RFCyber, Corp.Search in Eureka ↗ |
| Plaintiff law firm | Fabricant LLP (NY) | Law Firm | Representing RFCyber, Corp.Search in Eureka ↗ |
| Plaintiff law firm | Fabricant LLP (Rye) | Law Firm | Representing RFCyber, Corp.Search in Eureka ↗ |
| Plaintiff law firm | Truelove Law Firm | Law Firm | Representing RFCyber, Corp.Search in Eureka ↗ |
| Defendant counsel | Benjamin Kiersz | Attorney | Counsel for Kroger, Co.Search in Eureka ↗ |
| Defendant counsel | Gregory Phillip Love | Attorney | Counsel for Kroger, Co.Search in Eureka ↗ |
| Defendant counsel | Michael Grosso | 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 | Steckler Wayne Cherry & Love, PLLC | Law Firm | Representing Kroger, Co.Search in Eureka ↗ |
| Presiding judge | Judge Rodney Gilstrap | Judge | Texas Eastern District CourtSearch in Eureka ↗ |
Official order — verbatim text
The court’s order accepts RFCyber’s Rule 41(a)(1)(A)(i) notice and formally records dismissal with prejudice of all claims in Member Case No. 2:24-cv-548-JRG. Critically, the phrasing ‘DENIED AS MOOT’ for all pending relief requests confirms no substantive merits ruling was ever issued. For Kroger, this means no invalidity finding protects it in future proceedings; for RFCyber, the with-prejudice designation is self-imposed and absolute — no refiling against this defendant on this patent is possible.
US8448855B1 — Mobile Payment Platform Technology
US8,448,855B1 (application no. US13/400038) covers mobile payment platform technology — specifically methods and systems enabling secure, app-based payment processing in retail and pharmacy environments. The patent falls within the broader near-field communication and mobile commerce domain. As a B1 grant with no published pre-grant, the claims represent the sole publicly examined scope. RFCyber’s assertion against 19 discrete Kroger apps suggests it interprets the claims broadly enough to cover white-labelled app ecosystems built on a shared payment infrastructure.
US8,448,855 sits at the intersection of mobile commerce and retail payment stack IP — a space with ongoing licensing activity. RFCyber’s strategy of naming individual branded apps (rather than just Kroger Co.) indicates an effort to maximise damages exposure by treating each app as a separate infringing product. For competitors of Kroger — and for any retailer operating multi-brand mobile payment apps — this patent represents an active enforcement risk. The patent’s continued validity post-dismissal means third parties cannot rely on this case’s outcome for any defensive positioning.
Should your mobile payment app run an FTO against US8448855B1?
Any company operating a consumer-facing mobile app with integrated payment functionality — particularly in grocery, pharmacy, or multi-brand retail — should treat US8,448,855 as a live FTO risk. RFCyber’s willingness to assert it against 19 separate Kroger apps demonstrates a granular, app-level infringement theory. R&D and product teams building or scaling mobile checkout, in-app payment, or loyalty-linked payment features should not assume Kroger’s dismissal provides any cover — the patent remains fully enforceable against independent parties.
PatSnap Eureka’s FTO Search Agent enables rapid claim-by-claim mapping of US8,448,855 against your product’s technical architecture. Eureka can surface prior art, identify claim narrowing opportunities, and flag related RFCyber-family patents that may present parallel risk. In-house IP teams can use Eureka to generate a defensible FTO opinion baseline before product launch or during due diligence for any M&A transaction involving mobile payment technology assets.
Run a freedom-to-operate analysis on US8448855B1 to assess your product’s exposure
Run FTO in Eureka →Similar mobile payment patent cases in E.D. Texas and related courts
Cases below involve mobile payment, NFC, and retail app patent assertions in the Eastern District of Texas and comparable NPE-active venues.
What this case signals for the mobile payment IP landscape
RFCyber’s with-prejudice exit against Kroger sends a clear signal to mobile payment and retail app operators across the sector.
Grocery and retail app operators should audit mobile payment patent exposure now
RFCyber targeted 19 distinct Kroger-brand apps — suggesting it maps infringement at the app-portfolio level, not just the parent company. Any retailer operating multiple branded mobile payment apps faces a similar aggregated exposure profile. An FTO search against US8,448,855 should be a near-term priority for in-house IP teams at comparable retail chains.
With-prejudice dismissals may signal a confidential licensing resolution
A plaintiff voluntarily dismissing with prejudice — rather than without — is statistically atypical unless a deal was struck or litigation risk became untenable. IP teams monitoring RFCyber’s enforcement activity should watch for new filings against similar retail targets: a pattern of with-prejudice dismissals often accompanies a licensing campaign, not true abandonment of the patent.
RFCyber v Kroger — key questions answered
The case was voluntarily dismissed with prejudice by plaintiff RFCyber Corp. on August 15, 2025, under FRCP 41(a)(1)(A)(i). Judge Rodney Gilstrap accepted the notice, permanently dismissing all claims against Kroger. No merits ruling on infringement or validity was issued.
RFCyber asserted US8,448,855B1 (application no. US13/400038), a patent covering mobile payment platform technology. The patent broadly relates to methods and systems for app-based, secure retail payment processing — the type of functionality embedded in Kroger’s 19 branded grocery and pharmacy apps.
RFCyber named 19 Kroger-family apps: the Kroger App, Harris Teeter App, Ralph’s App, Fred Meyer App, Fry’s App, Smith’s App, King Sooper’s App, QFC App, Mariano’s App, Metro Market App, Pick’n Save App, Dillons App, Baker’s App, City Market Food & Pharmacy App, Food 4 Less App, Foods Co App, Gerbes App, JacC App, and Pay Less App.
For Kroger, the with-prejudice dismissal permanently bars RFCyber from refiling the same patent claims in any federal court. Kroger achieved this without a court ruling on validity or infringement. For other retailers, it means no invalidity finding was made — US8,448,855 remains enforceable, and RFCyber retains full rights to pursue other defendants operating comparable mobile payment apps.
RFCyber was represented by Fabricant LLP (including Alfred Ross Fabricant, Jacob Ostling, Peter Lambrianakos, Richard Cowell, and Vincent Rubino III) alongside the Truelove Law Firm (Justin Truelove). Kroger was represented by Pillsbury Winthrop Shaw Pittman LLP (William Atkins and Michael Grosso) and Steckler Wayne Cherry & Love PLLC (Gregory Love and Benjamin Kiersz).
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