S3G Technology v. Five Below: Mobile App Patent Suit Dismissed With Prejudice
S3G Technology LLC filed suit against Five Below, Inc. in the Eastern District of Texas, asserting three mobile application patents against Five Below's Android and iOS apps. The case resolved and was dismissed with prejudice after just 144 days — each party bearing its own costs.
Three Mobile App Patents, One Fast Resolution in East Texas
On July 24, 2023, S3G Technology LLC filed a patent infringement action against Five Below, Inc. in the United States District Court for the Eastern District of Texas (Case No. 2:23-cv-00345). S3G asserted three patents — US9940124B2, US9304758B2, and US10387140B2 — against Five Below's Android and iOS mobile applications, as well as other supporting smartphone applications, servers, and software systems.
The parties filed a Joint Motion to Dismiss on or around December 15, 2023, representing that the case had been resolved. The court granted the motion and dismissed all claims and causes of action with prejudice. The recorded basis of termination is Dismissed with Prejudice. Each party was ordered to bear its own costs, expenses, and attorneys' fees. The specific terms of the underlying resolution are not disclosed in the available record.
The 144-day lifespan from filing to closure suggests the parties reached an agreement relatively early in the litigation, before significant motion practice or discovery milestones would typically conclude. What drove the resolution — whether claim scope, validity concerns, or commercial considerations — is not disclosed in the public record. The with-prejudice dismissal forecloses S3G from re-filing the same claims against Five Below on these three patents.
See Complete Case & Patent Analysis →Filing to Dismissed with Prejudice in 144 days
144 days — resolved well under the Eastern District of Texas median for patent cases
US9940124B2, US9304758B2, and US10387140B2 — Mobile Application Technology Patents
If your company operates a retail mobile application on Android or iOS — including supporting server infrastructure or multi-platform app deployments — the three patents asserted in S3G v. Five Below are directly relevant to your FTO posture. S3G demonstrated willingness to file in E.D. Tex. and assert all three patents simultaneously against a single product, compressing defendant exposure into a single fast-moving docket.
Official order — verbatim text
The court's order granting the Joint Motion to Dismiss reflects a consensual resolution: both parties represented that the case had been resolved and jointly requested dismissal with prejudice. The with-prejudice designation is the operative legal consequence — S3G may not reassert these three patents against Five Below. Each party bearing its own costs is an agreed term; no fee-shifting finding under 35 U.S.C. § 285 was made.
Dismissed with prejudice: what the joint resolution means for both parties
Dismissal with prejudice ends all claims permanently
A dismissal with prejudice is a final adjudication on the merits — S3G Technology cannot refile these same patent claims against Five Below in any court. The dismissal was entered on a Joint Motion, meaning both parties agreed to the termination. The court granted it without retaining jurisdiction, and all pending relief was denied as moot.
Permanent bar on re-filingS3G's claims are extinguished against Five Below
With a with-prejudice dismissal, S3G Technology loses the right to pursue these three patents against Five Below in future litigation. The patents themselves remain in force and could theoretically be asserted against other defendants, but the specific claims in this action are permanently resolved. The specific terms of any underlying agreement are not disclosed in the available record.
Claims barred; patents surviveFive Below obtains permanent protection from these claims
Five Below, Inc. secured a dismissal with prejudice, providing a permanent shield against re-assertion of US9940124B2, US9304758B2, and US10387140B2 in this specific action. Each party bears its own costs, meaning Five Below absorbs its own legal fees. The underlying terms of any agreement between the parties are not disclosed in the public record.
Full protection from re-suitFast resolution limits litigation exposure for mobile app defendants
The 144-day resolution before significant discovery suggests early-stage commercial alignment. For other retailers or app operators receiving demand letters referencing S3G's mobile app patent portfolio, this case signals that early resolution may be achievable. S3G's three patents remain active assets potentially assertable against other mobile app operators in the retail sector.
Early resolution; ongoing portfolio riskFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | S3G Technology, LLC | Company | /Search in Eureka ↗ |
| Defendant | Five Below, Inc. | Company | /Search in Eureka ↗ |
| Plaintiff counsel | Charles Ainsworth | Attorney | Counsel for S3G Technology, LLCSearch in Eureka ↗ |
| Plaintiff law firm | Parker Bunt & Ainswort PC | Law Firm | Representing S3G Technology, LLCSearch in Eureka ↗ |
| Defendant counsel | Eric Hugh Findlay | Attorney | Counsel for Five Below, Inc.Search in Eureka ↗ |
| Defendant counsel | Roger Brian Craft | Attorney | Counsel for Five Below, Inc.Search in Eureka ↗ |
| Defendant law firm | Findlay Craft PC | Law Firm | Representing Five Below, Inc.Search in Eureka ↗ |
| Presiding judge | Judge N/A | Judge | Texas Eastern District CourtSearch in Eureka ↗ |
R&D signals in the mobile app patent space
Forward-looking patent and innovation intelligence derived from S3G Technology's assertion of mobile application patents against Five Below's Android and iOS apps.
S3G Technology's mobile app patent filing activity
S3G Technology holds at least three granted US patents in the mobile application domain. Understanding the full scope of S3G's portfolio — including continuations, continuations-in-part, and related applications — is critical for any retail or e-commerce company operating mobile apps. Additional family members may extend claim coverage beyond what was asserted in this action.
PAE portfolio monitoringPatent filing trends in retail mobile app infrastructure
Cross-platform mobile app architecture — spanning Android, iOS, and server-side infrastructure — is an active area of patent filing. Companies operating in retail e-commerce should map their app stack against existing patent clusters in this domain to identify overlap with active assertion portfolios and emerging technology filings from both operating companies and PAEs.
Mobile app IP landscapeFive Below's patent and IP position in mobile commerce
Five Below operates as a value retail chain with Android and iOS app presence. Assessing whether Five Below holds defensive patents in mobile commerce or app technology — and whether those assets were relevant to the resolution — can inform competitive IP strategy for peers in the value retail segment facing similar assertions.
Retail app defensive IPDesign-around opportunities near S3G's asserted claims
With three patents covering mobile app operation across Android, iOS, and supporting systems, there may be white-space opportunities in adjacent implementation approaches — particularly in cross-platform frameworks, server-side rendering, or progressive web app architectures — that fall outside the asserted claim scope. Identifying these spaces can guide R&D investment and reduce assertion risk.
Design-around & white spaceSimilar mobile app patent cases filed in the Eastern District of Texas
Explore related patent infringement cases asserting mobile application patents in the Eastern District of Texas against retail and e-commerce app operators.
What this case signals for the mobile app patent IP landscape
S3G's rapid assertion and resolution pattern in East Texas carries signals for any retailer or app operator managing mobile IP risk.
Eastern District of Texas remains a preferred venue for mobile app patent suits
S3G's choice of E.D. Tex. is consistent with continued plaintiff-side preference for that district in software and mobile app patent cases. Defendants in the retail technology space should maintain readiness for E.D. Tex. filings, where case management timelines move quickly and early resolution pressure is real.
Three-patent assertion against a single mobile app product signals portfolio leverage
Asserting three related mobile app patents simultaneously — covering Android, iOS, and supporting infrastructure — is consistent with a portfolio leverage strategy. Companies operating retail mobile apps should conduct FTO analysis across related patent families, not just individual patents, when evaluating assertion risk.
S3G v Five — key questions answered
S3G Technology LLC asserted three patents: US9940124B2, US9304758B2, and US10387140B2. All three were directed at Five Below's mobile applications running on Android and iOS, as well as supporting server and software infrastructure.
The case was dismissed with prejudice pursuant to a Joint Motion to Dismiss filed by both parties. The court found the case had been resolved and granted the motion. Each party was ordered to bear its own costs, expenses, and attorneys' fees. The specific terms of any underlying agreement are not disclosed in the available public record.
A with-prejudice dismissal permanently bars S3G Technology from re-filing these same patent claims against Five Below. The three patents — US9940124B2, US9304758B2, and US10387140B2 — remain in force and could be asserted against other defendants, but the claims in this specific action cannot be revived against Five Below.
The case was filed on July 24, 2023 and closed on December 15, 2023 — a duration of 144 days. This is a notably short lifespan for a multi-patent infringement action in the Eastern District of Texas, suggesting early-stage resolution before significant discovery or motion practice concluded.
The dismissal resolves only Five Below's exposure. S3G's three mobile app patents remain active and enforceable. Retailers and e-commerce operators running Android and iOS applications with similar architectures should consider conducting freedom-to-operate analysis against US9940124B2, US9304758B2, and US10387140B2 and monitoring S3G's patent family for continuation filings.
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