S3G Technology v. Kroger: Patent Suit Dismissed With Prejudice in 119 Days
S3G Technology, LLC brought a patent infringement action against The Kroger Co. in the Eastern District of Texas, asserting three patents directed at systems for modifying terminal and service-provider machines — claims tied to Kroger’s mobile application. The parties jointly resolved the case in under four months, with all claims dismissed with prejudice and each side bearing its own costs.
Quick Bilateral Resolution Ends Three-Patent Mobile App Dispute
Filed on 22 February 2024 in the Eastern District of Texas, S3G Technology, LLC targeted The Kroger Co. with an infringement action centred on three US patents — US9940124B2, US9304758B2, and US9081897B2 — collectively describing systems for modifying terminal machines and service-provider machines. The accused product was Kroger’s mobile application, placing the dispute squarely in the intersection of retail technology and software-implemented systems.
The case closed on 20 June 2024, just 119 days after filing, via a joint motion to dismiss with prejudice. The Eastern District court granted the motion as filed, dismissing all claims and causes of action with prejudice and ordering each party to bear its own costs, expenses, and attorneys’ fees. A dismissal with prejudice is a final adjudication on the merits — S3G is permanently barred from re-asserting the same claims against Kroger on these patents.
The speed of resolution — under four months, before any substantive motion practice or claim construction — strongly suggests the parties reached a private settlement or licence agreement, though the public record confirms only that the case was ‘resolved.’ The mutual cost-bearing arrangement is consistent with a negotiated outcome rather than capitulation by either side. The specific financial terms, if any, remain confidential and are not disclosed in the court record.
Filing to Dismissed with Prejudice in 119 days
119 days — resolved well below the E.D. Tex. median for patent cases.
Dismissed with prejudice: what the joint ruling means for both parties
Dismissal with prejudice is a final, permanent bar to re-filing
A dismissal with prejudice operates as a final judgment on the merits. Unlike a without-prejudice dismissal, S3G Technology cannot re-file these specific claims against Kroger on US9940124B2, US9304758B2, or US9081897B2. The joint motion signals mutual agreement — neither party is a court-imposed loser, but the bar against future litigation is absolute. This mechanism is the standard vehicle for memorialising a private settlement in US district court patent cases.
Permanent bar on re-filingS3G exits with claims extinguished but likely extracted value
S3G Technology initiated and then jointly resolved the action in under four months — a timeline consistent with early-stage settlement or licence negotiation rather than prolonged contest. The with-prejudice dismissal forecloses future action against Kroger on these patents, suggesting S3G accepted consideration in exchange. The patents themselves remain enforceable against other parties unless separately challenged. S3G’s litigation posture and patent portfolio suggest it may continue assertion activity elsewhere.
Claims resolved; patents surviveKroger secures permanent peace from these three patents
For Kroger, the with-prejudice dismissal provides certainty: S3G cannot re-assert US9940124B2, US9304758B2, or US9081897B2 against Kroger’s mobile application under these claims. The each-party-bears-own-costs arrangement avoids any fee award finding and keeps the resolution commercially clean. Kroger’s engagement of Pillsbury Winthrop — a firm with significant patent litigation experience — may have accelerated resolution by signalling credible defence capability early in proceedings.
Permanent immunity from these patentsRetail mobile platforms remain a live target for system-modification patents
This case is consistent with a broader pattern of NPE assertion against retail mobile applications using patents directed at terminal and service-provider machine architectures. The rapid resolution — before claim construction — means no judicial guidance on claim scope was produced, leaving the patents’ breadth untested publicly. Other retailers operating comparable mobile platforms should treat the survival of these three patents as a live FTO concern and monitor S3G’s assertion activity across the sector.
Live risk for retail mobile platformsFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | S3G Technology, LLC | Company | Patent licensing entity — holder of US9940124B2, US9304758B2, and US9081897B2Search in Eureka ↗ |
| Defendant | Kroger, Co. | Company | The Kroger Co. — major US grocery retailer, operator of accused mobile applicationSearch 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 | William P. Atkins. | Attorney | Counsel for 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 N/A | Judge | Texas Eastern District CourtSearch in Eureka ↗ |
Official order — verbatim text
The court’s order adopts the joint motion language verbatim, granting dismissal with prejudice of all claims and causes of action between S3G and Kroger. The phrase ‘the above-captioned case has been resolved’ is deliberately neutral — the court makes no finding of infringement, validity, or invalidity. The each-party-bears-own-costs provision, entered by agreement rather than judicial determination, means neither side carries a cost-award finding into future proceedings. All three asserted patents remain legally intact and enforceable against third parties.
US9940124B2, US9304758B2 & US9081897B2 — Terminal & Service-Provider Machine Modification Systems
The three asserted patents — US9940124B2 (App. No. 15/065757), US9304758B2 (App. No. 14/788506), and US9081897B2 (App. No. 14/060490) — form a patent family directed at systems and methods for modifying the operational behaviour of terminal machines (such as point-of-sale or consumer-facing devices) and service-provider machines (such as backend servers or application platforms). The application dates, ranging from 2013 to 2016, place their technical conception in the era of early enterprise mobile application development and cross-device integration architectures.
For the retail technology sector, these patents represent a potentially broad claim footprint over how mobile applications communicate with and modify backend service infrastructure — a design pattern ubiquitous in modern retail apps including loyalty programmes, inventory queries, payment processing, and personalised offers. S3G’s ability to assert all three patents jointly against Kroger’s mobile application suggests the portfolio was assembled to cover complementary aspects of the same functional system. No court has invalidated or narrowed these claims, which heightens competitor exposure.
Should your retail mobile platform run an FTO against US9940124B2?
Any organisation operating a consumer-facing mobile application that interacts with backend service-provider infrastructure — including grocery, pharmacy, convenience, or general retail platforms — should evaluate exposure to S3G’s patent portfolio. The accused product here was Kroger’s mobile application, one of the largest retail apps in the US, suggesting the asserted claims are broad enough to reach mainstream commercial implementations. The absence of claim construction guidance from this case means the patents’ outer boundaries remain untested.
PatSnap Eureka’s FTO Search Agent can map the claim language of US9940124B2, US9304758B2, and US9081897B2 against your product’s technical architecture, identify prior art that could support invalidity arguments, and surface any continuation or child applications that S3G may have filed. For in-house IP teams and R&D leaders building or acquiring retail mobile technology, a structured FTO review against this patent family is a commercially prudent step before further product development or market expansion.
Run a freedom-to-operate analysis on US9940124B2 to assess your product’s exposure
Run FTO in Eureka →Similar Patent Cases: Mobile App & Terminal System Assertions in E.D. Texas
Cases involving software-implemented terminal and service-provider system patents asserted against retail mobile platforms in the Eastern District of Texas.
What this case signals for the retail technology IP landscape
A swift with-prejudice dismissal in E.D. Tex. without merits adjudication keeps three system-modification patents fully enforceable against the wider market.
Early resolution without claim construction leaves patent scope ambiguous
Because the case closed before any Markman hearing or substantive motion, no court has construed the claims of US9940124B2, US9304758B2, or US9081897B2. This means competitors and potential defendants have no judicial reference point for claim scope — a significant risk for any retailer operating a mobile app with terminal-integration or service-provider connectivity features.
E.D. Texas NPE dynamics favour early settlement pressure on defendants
The Eastern District of Texas remains a preferred venue for patent assertion entities. Filing in E.D. Tex. applies immediate strategic pressure: discovery costs, early scheduling orders, and plaintiff-friendly procedural history incentivise defendants to resolve quickly. Kroger’s 119-day exit — likely before significant discovery costs accrued — is a textbook response to this dynamic.
S3G v Kroger — key questions answered
A dismissal with prejudice is a final, permanent resolution. S3G Technology is barred from re-asserting US9940124B2, US9304758B2, or US9081897B2 against Kroger on the same claims. The court made no ruling on infringement or validity — the case was resolved by joint agreement before any merits adjudication.
S3G asserted three patents: US9940124B2 (App. 15/065757), US9304758B2 (App. 14/788506), and US9081897B2 (App. 14/060490). All three are directed at systems for modifying terminal machines and service-provider machines, and were applied to the Kroger mobile application as the accused product.
The case closed 119 days after filing, before substantive motion practice or claim construction. This timeline is consistent with early-stage settlement negotiations, possibly involving a licence payment or covenant not to sue. The joint motion language — stating the case ‘has been resolved’ — and the each-party-bears-own-costs clause are both typical indicators of a private commercial resolution rather than a litigated outcome.
No. A dismissal with prejudice by joint motion does not constitute a ruling on patent validity or invalidity. US9940124B2, US9304758B2, and US9081897B2 remain in force and are fully enforceable against third parties. No court construed the claims or evaluated prior art in this case, leaving the patents’ scope and validity legally untested.
In US patent litigation, the prevailing party may seek attorneys’ fees under 35 U.S.C. § 285 in exceptional cases. The absence of any fee motion and the mutual cost-bearing clause here suggest neither party sought — or could credibly seek — a fee award, which is consistent with a privately negotiated resolution. It also means Kroger carries no adverse cost-finding into future proceedings involving different patents.
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