Smart Order LLC v. Cheesecake Factory: Dismissed With Prejudice in 268 Days
Smart Order LLC asserted US9390424B2 — a patent covering restaurant customer wait-time, service, and marketing efficiency systems — against The Cheesecake Factory in the Eastern District of Texas. The case ended by joint stipulation of dismissal with prejudice after 268 days, with each party bearing its own costs.
Restaurant tech patent dismissed with prejudice after joint stipulation
Smart Order LLC filed suit against The Cheesecake Factory Inc. on 10 March 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 time, customer service, and marketing efficiency in the restaurant, retail, hospitality, travel, and entertainment industries — technology increasingly central to large casual dining operators like The Cheesecake Factory.
The case closed on 3 December 2025 via a joint stipulation of dismissal with prejudice under Fed. R. Civ. P. 41(a)(1)(A)(ii), accepted and acknowledged by Judge Gilstrap. All claims were dismissed with prejudice, and each party was ordered to bear its own costs, expenses, and attorneys’ fees. The verdict also directed closure of the consolidated lead case No. 2:25-cv-280-JRG, indicating this was one of multiple related proceedings filed by Smart Order LLC.
The 268-day lifespan and mutual cost-bearing provision are consistent with a confidential settlement, a licence agreement, or a strategic withdrawal by the plaintiff following early case assessment. The consolidation with a lead case suggests Smart Order pursued a multi-defendant campaign, a pattern common among NPE plaintiffs in the E.D. Tex. What specific terms, if any, underpinned the stipulation remain undisclosed in the public record.
Filing to Dismissed with Prejudice in 268 days
268 days — shorter than the E.D. Tex. median for patent cases resolved by stipulation
Dismissed with prejudice: what the joint stipulation means for both parties
Rule 41(a)(1)(A)(ii): a binding, court-accepted end to the case
A dismissal with prejudice under Fed. R. Civ. P. 41(a)(1)(A)(ii) requires the written consent of all parties and is the most final procedural exit available at the district court level. Once the court accepts the stipulation — as Judge Gilstrap did here — the claims are extinguished on the merits and cannot be refiled. This is not a default or unilateral withdrawal; both parties agreed to the terms.
Permanent bar on refilingSmart Order surrenders all infringement claims permanently
By agreeing to dismissal with prejudice, Smart Order LLC relinquishes its right to assert these specific infringement claims against The Cheesecake Factory in any future proceeding. While the patent US9390424B2 itself remains in force until expiry, any litigation restart against the same defendant on the same facts is precluded. The ‘own costs’ provision suggests no damages or royalties were publicly awarded, consistent with a negotiated resolution or strategic withdrawal.
Claims permanently extinguishedCheesecake Factory exits litigation with full finality and no cost order
The Cheesecake Factory secured dismissal with prejudice — the strongest possible protection against re-assertion of these claims. The ‘each party bears its own costs’ language means no fee-shifting under 35 U.S.C. § 285 and no exceptional-case finding. Baker Botts LLP’s representation suggests the defendant invested in qualified patent defence, and the outcome is consistent with either a private settlement or a successful challenge to the plaintiff’s litigation position.
No fee award, full finalityUS9390424B2 remains enforceable — restaurant tech operators should monitor
The dismissal extinguishes claims only against this defendant. US9390424B2 continues to cover systems for improving customer wait time, service, and marketing efficiency across restaurant, retail, hospitality, travel, and entertainment verticals. Other operators in these sectors deploying digital queue management, reservation, or CRM platforms should assess their exposure. Smart Order’s enforcement posture against other defendants remains an open question.
Patent still active for other targetsFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | Smart Order LLC | Company | Restaurant tech patent assertion entity — holder of US9390424B2Search in Eureka ↗ |
| Defendant | Cheesecake Factory | Individual | National casual dining chain operating hundreds of U.S. restaurant locationsSearch in Eureka ↗ |
| Plaintiff counsel | Isaac Phillip Rabicoff | Attorney | Counsel for Smart Order LLCSearch in Eureka ↗ |
| Plaintiff law firm | Rabicoff Law LLC | Law Firm | Representing Smart Order LLCSearch in Eureka ↗ |
| Defendant counsel | Lindsay Volpenhein Cutie | Attorney | Counsel for Cheesecake FactorySearch in Eureka ↗ |
| Defendant law firm | Baker Botts LLP | Law Firm | Representing Cheesecake FactorySearch in Eureka ↗ |
| Presiding judge | Judge Rodney Gilstrap | Judge | Texas Eastern District CourtSearch in Eureka ↗ |
Official order — verbatim text
The court’s language — ‘ACCEPTS and ACKNOWLEDGES’ the stipulation and orders claims ‘DISMISSED WITH PREJUDICE’ — is standard Rule 41 acceptance language and carries dispositive legal weight. The explicit direction to close both the member case and the consolidated lead case signals that Smart Order’s entire multi-defendant campaign in this consolidated docket has concluded. The ‘each party bears its own costs’ clause is notable: it forecloses any § 285 exceptional-case fee motion and suggests neither party sought to litigate further after reaching agreement.
US9390424B2 — Restaurant customer wait-time and service system
US9390424B2, filed under application number US13/088046, protects a system and method for improving customer wait time, customer service, and marketing efficiency across restaurant, retail, hospitality, travel, and entertainment environments. The patent’s broad vertical coverage is strategically significant: a single patent family can be asserted across diverse commercial operators who deploy digital queue management, reservation systems, loyalty platforms, or customer-flow optimisation tools.
For large casual dining chains, hospitality groups, and retail operators, this patent represents a meaningful enforcement risk if their customer-experience technology overlaps with the claimed system architecture. The multi-defendant litigation strategy employed by Smart Order — evident from the consolidated lead case — suggests an aggressive licensing or enforcement programme. Companies deploying third-party or proprietary wait-list, table management, or CRM solutions should conduct targeted prior art and claim-scope analysis.
Should you run an FTO analysis against US9390424B2?
Any restaurant group, hospitality operator, retailer, or travel and entertainment business deploying customer queue management, digital waitlist, reservation, or CRM systems should assess exposure to US9390424B2. Smart Order’s filing of multiple consolidated cases in E.D. Tex. strongly suggests a structured licensing campaign. If your product or platform touches customer wait-time or service-flow optimisation, a targeted freedom-to-operate analysis is commercially prudent before Smart Order’s enforcement reach extends further.
PatSnap Eureka’s FTO Search Agent lets R&D and IP teams map claim language from US9390424B2 against your product architecture in minutes, surfacing potentially invalidating prior art and identifying design-around opportunities. The agent cross-references prosecution history, claim amendments, and related family members to give in-house counsel a defensible starting point — without the cost of a full external opinion at the initial screening stage.
Run a freedom-to-operate analysis on US9390424B2 to assess your product’s exposure
Run FTO in Eureka →Similar restaurant and hospitality tech patent cases in E.D. Tex.
Cases involving restaurant, hospitality, and customer service technology patents litigated in the Eastern District of Texas before Judge Gilstrap and related courts.
What this case signals for the restaurant and hospitality tech IP landscape
Smart Order’s multi-defendant E.D. Tex. campaign around US9390424B2 reflects a structured assertion strategy targeting digital customer experience platforms across hospitality verticals.
Multi-defendant consolidation signals a licensing programme, not a one-off dispute
The existence of a consolidated lead case (2:25-cv-280) alongside this member case confirms Smart Order filed against multiple defendants simultaneously. This is a textbook NPE licensing campaign in E.D. Tex. Restaurant groups, hotel operators, and retailers using digital queue or table management tools should treat this as a systemic enforcement signal, not an isolated filing.
Baker Botts’ involvement and ‘own costs’ outcome points to a negotiated exit
Retaining Baker Botts LLP — a top-tier patent defence firm — typically signals a defendant intends to contest aggressively or leverage its position in settlement. The mutual cost-bearing outcome and dismissal with prejudice within 268 days is consistent with a licence or walk-away agreement. Neither party’s litigation economics are disclosed, but the swift resolution limits public precedent.
Smart v Cheesecake — key questions answered
Dismissal with prejudice under Rule 41(a)(1)(A)(ii) permanently extinguishes Smart Order’s infringement claims against The Cheesecake Factory based on US9390424B2. The patent itself remains in force, but Smart Order cannot refile these specific claims against this defendant. The stipulation was accepted by Judge Gilstrap on 3 December 2025.
Smart Order LLC asserted US9390424B2, filed under application No. US13/088046. The patent covers a system and method for improving customer wait time, customer service, and marketing efficiency in the restaurant, retail, hospitality, travel, and entertainment industries.
The public record shows only a joint stipulation of dismissal with prejudice — no settlement terms are disclosed. The ‘each party bears its own costs’ language and the relatively short 268-day duration are consistent with a private settlement or licence, but the specific terms, if any, are not publicly available.
Judge Gilstrap’s order directed closure of both the member case (2:25-cv-285) and lead case (2:25-cv-280), indicating Smart Order LLC had filed multiple consolidated actions in E.D. Tex. The closure of the lead case suggests all related defendants and claims in that docket have now been resolved, ending the entire consolidated campaign.
No. The dismissal with prejudice is party-specific — it bars Smart Order from reasserting these claims only against The Cheesecake Factory. US9390424B2 remains enforceable against other parties in the restaurant, retail, hospitality, and entertainment sectors. Operators with similar customer-flow or wait-time technology should independently assess their exposure.
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