Smart Order LLC v. Applebee’s Services: Dismissed With Prejudice After 268 Days
Smart Order LLC asserted US9390424B2 — a patent covering customer wait-time, ordering, and marketing systems for restaurant and hospitality industries — against Applebee’s Services, Inc. in the Eastern District of Texas. The case closed via joint stipulation of dismissal with prejudice after 268 days, with each party bearing its own costs.
Restaurant Ordering Patent Suit Against Applebee’s Ends at Joint Dismissal
Smart Order LLC filed suit against Applebee’s Services, Inc. on March 10, 2025 in the Eastern District of Texas before Judge Rodney Gilstrap, asserting infringement of US9390424B2. The patent covers a system and method for improving customer wait times, service, and marketing efficiency in the restaurant, retail, hospitality, travel, and entertainment industries — technology directly relevant to digital ordering and table-management platforms deployed by large casual-dining chains.
The case closed on December 3, 2025 via a joint stipulation of dismissal with prejudice filed under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). The court accepted and acknowledged the stipulation, dismissing all claims 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 for res judicata purposes, meaning Smart Order LLC cannot reassert the same patent claims against Applebee’s Services.
At 268 days, the case resolved well before any trial date, suggesting the parties likely reached a private resolution — potentially a license or covenant not to sue — though the public record is silent on specific settlement terms. The mutual cost-bearing arrangement is consistent with a negotiated exit rather than a contested ruling. It is also notable that the verdict text references a related member case involving Panera Bread Co. (2:25-cv-282), indicating Smart Order pursued a coordinated multi-defendant campaign with this patent around the same filing period.
Filing to Dismissed with Prejudice in 268 days
268 days — resolved before trial, consistent with pre-discovery settlement timelines in E.D. Tex.
Dismissed with prejudice: what the joint stipulation means for both parties
Rule 41(a)(1)(A)(ii) joint stipulation — a mutual, binding exit
A dismissal under Fed. R. Civ. P. 41(a)(1)(A)(ii) requires the signed agreement of all parties who have appeared. Unlike a unilateral voluntary dismissal, this is a bilateral instrument — both Smart Order and Applebee’s consented. The court’s role is purely ministerial: it accepts and acknowledges the stipulation rather than ruling on the merits. The ‘with prejudice’ designation makes the dismissal a final judgment for res judicata purposes.
Rule 41(a)(1)(A)(ii) — bilateralSmart Order is permanently barred from re-suing Applebee’s on this patent
A with-prejudice dismissal extinguishes Smart Order LLC’s right to reassert US9390424B2 against Applebee’s Services on the same claims. The patent itself remains in force and enforceable against other defendants. Smart Order retains the ability to pursue — or has already pursued — other targets in the restaurant and hospitality sector. The absence of a fee award against Smart Order suggests the case did not reach an ‘exceptional case’ threshold under 35 U.S.C. § 285.
Patent survives; this defendant protectedApplebee’s secures permanent dismissal, likely at negotiated cost
Applebee’s Services exits the litigation with a with-prejudice dismissal — the strongest procedural shield available short of a merits judgment. Each party bearing its own costs suggests no clear winner in cost terms, which is consistent with a commercial resolution. Applebee’s avoids the risk of an adverse infringement finding and the public disclosure of technical details about its ordering platform. The outcome does not constitute a finding of non-infringement or invalidity.
Defendant protected; no merits rulingUS9390424B2 remains a live enforcement risk for other restaurant operators
The dismissal resolves only the Applebee’s exposure. US9390424B2 — covering customer wait-time and marketing efficiency systems for restaurants, retail, and hospitality — remains asserted or assertable against other operators. The parallel Panera Bread member case (2:25-cv-282) confirms a multi-defendant campaign. Any restaurant or hospitality operator deploying digital ordering, queue management, or customer engagement platforms should treat this patent as an active risk and consider an FTO or design-around analysis.
Multi-defendant risk remainsFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | Smart Order LLC | Company | Patent assertion entity — holder of US9390424B2 covering restaurant ordering and wait-time systemsSearch in Eureka ↗ |
| Defendant | Applebee’s Services, Inc. | Company | Applebee’s Services, Inc. — casual dining restaurant chain operator and services entitySearch in Eureka ↗ |
| Plaintiff counsel | Benjamin Charles Deming | Attorney | Counsel for Smart Order LLCSearch in Eureka ↗ |
| Plaintiff counsel | Isaac Phillip Rabicoff | Attorney | Counsel for Smart Order LLCSearch in Eureka ↗ |
| Plaintiff law firm | Dnl Zito | Law Firm | Representing Smart Order LLCSearch in Eureka ↗ |
| Plaintiff law firm | Rabicoff Law LLC | Law Firm | Representing Smart Order LLCSearch in Eureka ↗ |
| Defendant counsel | Bradley Rademaker | Attorney | Counsel for Applebee’s Services, Inc.Search in Eureka ↗ |
| Defendant law firm | Neal Gerber & Eisenberg LLP | Law Firm | Representing Applebee’s Services, Inc.Search in Eureka ↗ |
| Presiding judge | Judge Rodney Gilstrap | Judge | Texas Eastern District CourtSearch in Eureka ↗ |
Official order — verbatim text
The court’s order accepts a joint stipulation under Rule 41(a)(1)(A)(ii), making the dismissal final and bilateral. The ‘with prejudice’ designation operates as a judgment on the merits for res judicata purposes, permanently barring Smart Order from reasserting the same claims against Applebee’s. Critically, no infringement finding, invalidity ruling, or damages determination was made — the patent’s validity and scope remain legally undisturbed. The each-party-bears-own-costs provision is standard in negotiated exits and does not indicate fault or litigation misconduct by either side.
US9390424B2 — Restaurant and Hospitality Customer Ordering and Wait-Time System
US9390424B2 (application no. US13/088046) covers a system and method for improving customer wait times, service quality, and marketing efficiency across restaurants, retail, hospitality, travel, and entertainment venues. The patent addresses the integration of customer flow management with service delivery and targeted marketing — a technical area that has become commercially significant as the restaurant industry has shifted toward digital ordering, mobile queue management, and loyalty-integrated platforms. The breadth of the industry coverage in the claim language is strategically notable.
For large casual-dining and fast-casual operators, US9390424B2 represents a non-trivial assertion risk given its broad applicability to digital ordering and wait-time platforms. The fact that Smart Order pursued both Applebee’s and Panera Bread in coordinated E.D. Tex. filings suggests the patent holder believes the claims read on widely deployed third-party ordering and table-management systems. Competitors and technology vendors supplying these platforms — including POS integrators, kiosk operators, and queue-management SaaS providers — should evaluate whether their product architectures intersect with the patent’s method and system claims.
Should you run an FTO against US9390424B2?
Any restaurant group, fast-casual chain, retail operator, hotel brand, or travel company deploying customer wait-time management, digital ordering queues, or integrated marketing platforms should treat US9390424B2 as a priority FTO target. The patent’s stated industry coverage is unusually broad, and the active multi-defendant enforcement campaign demonstrates the patent holder’s willingness to litigate. Technology vendors and SaaS providers supplying these capabilities to hospitality clients may also carry indemnification exposure.
PatSnap Eureka’s FTO Search Agent can map your product’s technical architecture against the claim language of US9390424B2, surface prior art that could support an IPR petition, and identify design-around options before you receive a demand letter. Given the E.D. Tex. venue and Judge Gilstrap’s scheduling pace, proactive FTO analysis is significantly more cost-effective than reactive litigation defence. Start an Eureka FTO analysis to quantify your exposure now.
Run a freedom-to-operate analysis on US9390424B2 to assess your product’s exposure
Run FTO in Eureka →Similar Restaurant and Hospitality Ordering Patent Cases in E.D. Texas
Explore related patent infringement cases involving restaurant ordering, wait-time, and hospitality technology systems litigated before Judge Gilstrap in the Eastern District of Texas.
What this case signals for restaurant and hospitality IP enforcement
A with-prejudice exit in E.D. Tex. after 268 days is a classic signal of a quietly negotiated resolution — and an active patent campaign.
The parallel Panera case confirms a coordinated assertion campaign
The verdict references member case 2:25-cv-282 against Panera Bread, filed concurrently. Smart Order’s use of E.D. Tex. consolidated proceedings is consistent with a systematic licensing strategy targeting major casual-dining and hospitality chains. Other large restaurant operators with digital ordering or wait-management systems should assess their exposure to US9390424B2.
With-prejudice + own costs = likely private license or covenant not to sue
Joint stipulations with prejudice and mutual cost-bearing in patent cases before Judge Gilstrap typically signal a confidential settlement — often a lump-sum license or a covenant not to sue. Neither party achieved a public merits victory. The structure protects both sides: plaintiff monetises quietly, defendant avoids an invalidity ruling that could harm future assertion.
Smart v Applebee’s — key questions answered
A dismissal with prejudice under Rule 41(a)(1)(A)(ii) is a final, bilateral termination of the litigation. Smart Order LLC cannot refile the same patent infringement claims against Applebee’s Services based on US9390424B2. The patent itself remains valid and enforceable against other parties. No merits determination — infringement, validity, or damages — was made by the court.
Yes. The dismissal with prejudice only extinguishes Smart Order’s claims against Applebee’s Services specifically. US9390424B2 remains an issued, enforceable US patent. The parallel Panera Bread member case (2:25-cv-282) and the potential for additional defendants confirm the patent remains an active enforcement instrument in the restaurant and hospitality technology sector.
E.D. Tex., particularly before Judge Rodney Gilstrap in Marshall, is a historically plaintiff-favoured patent venue known for fast scheduling, experienced patent juries, and high settlement rates. Patent assertion entities frequently file in this district to maximise leverage over corporate defendants. The court’s procedural efficiency and plaintiff win rates make it a strategically attractive filing jurisdiction for licensing-focused plaintiffs.
The court’s dismissal order references a related member case, No. 2:25-cv-282-JRG, involving Panera Bread Co. as defendant, also on a joint stipulation of dismissal with prejudice. This strongly suggests Smart Order LLC filed coordinated parallel actions against multiple casual-dining chains using the same patent, which is consistent with a systematic patent licensing campaign targeting the restaurant industry.
No IPR petition data is referenced in the public case record for this matter. US9390424B2 (application US13/088046) claims systems and methods for customer wait-time and marketing efficiency in service industries — a domain with substantial prior art in queue management, POS systems, and hospitality CRM technologies from the early 2010s. A formal prior art search and IPR viability assessment through PatSnap Eureka would be the recommended first step for any party seeking to challenge the patent’s validity.
PatSnap Eureka searches patents and litigation data to answer instantly.