Smart Order LLC v. Wendy's Co

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Smart Order LLC (New Mexico)
  • Defendant: The Wendy's Company (Delaware)
  • Plaintiff’s Counsel: Rabicoff Law LLC
• Case Identification: 2:25-cv-00286, E.D. Tex., 03/10/2025
• Venue Allegations: Venue is based on Defendant's established place of business within the Eastern District of Texas, where it has allegedly committed acts of patent infringement.
• Core Dispute: Plaintiff alleges that Defendant’s customer ordering systems infringe a patent related to methods for improving customer wait times and service efficiency through pre-ordering.
• Technical Context: The technology addresses the coordination of customer pre-orders with on-site service operations, particularly in the quick-service restaurant industry, to reduce wait times and improve operational flow.
• Key Procedural History: The patent-in-suit claims an earliest priority date of April 27, 2007, from a now-abandoned parent application. The patent has been subject to two Certificates of Correction, issued in 2016 and 2017, which substantively amended the language of the independent claims. These corrections will be central to any claim construction analysis.

Case Timeline

Date	Event
2007-04-27	Earliest Priority Date (from U.S. App. No. 11/741,704)
2016-07-12	U.S. Patent No. 9,390,424 Issues
2016-12-27	First Certificate of Correction Issued (amending Claim 18)
2017-09-26	Second Certificate of Correction Issued (amending Claim 1)
2025-03-10	Complaint Filed

II. Technology and Patent(s)-in-Suit Analysis

U.S. Patent No. 9,390,424 - "System and method for improving customer wait time, customer service, and marketing efficiency in the restaurant, retail, hospitality, travel, and entertainment industries"

• Patent Identification: U.S. Patent No. 9,390,424 (“’424 Patent”), issued July 12, 2016.

The Invention Explained

• Problem Addressed: The patent seeks to solve inefficiencies in service industries where customer wait times lead to lost business and reduced turnover. (’424 Patent, col. 2:9-19). The background notes a need for a system that does more than just take reservations or simple orders, but also intelligently manages the fulfillment process.
• The Patented Solution: The invention describes a pre-ordering system, accessible via the web or an on-site kiosk, where customers can create profiles and place orders in advance of their arrival. (’424 Patent, Abstract). The core of the solution is the system’s ability to interface with a vendor’s operational software (e.g., seating and kitchen management systems) to time the preparation and delivery of the pre-ordered service with the customer’s actual readiness, thereby minimizing "undesirable delay time." (’424 Patent, col. 2:34-39). The system’s workflow, from online pre-order (FIG. 2) to on-site fulfillment coordination (FIG. 4), is designed to optimize this timing.
• Technical Importance: The claimed technical approach attempts to integrate the customer-facing pre-ordering process with the vendor’s back-of-house operational timing, a key challenge for efficiency in high-volume service environments like quick-service restaurants. (’424 Patent, col. 3:25-30).

Key Claims at a Glance

• The complaint does not identify specific claims, instead referring to "Exemplary '424 Patent Claims" detailed in an unprovided exhibit. (Compl. ¶11). Independent claims 1 (method) and 18 (system) are the basis of the patent's scope. Claim 1, as amended by the 2017 Certificate of Correction, contains the following essential elements:
  • A computer receiving a reservation that includes a preorder of products/services.
  • A customer payment account for the preorder.
  • The computer validating the reservation upon an indication that the customer has approved the preorder at or before arrival and entering the customer into a preparation queue of a vendor management system.
  • The vendor management system determining when a customer's wait time in the queue is less than or equal to a preparation time for the preorder.
  • The vendor management system forwarding the preorder for preparation based on that determination.
  • Storing a record of the customer's purchases in a customer profile.
• The complaint notes that Plaintiff may assert infringement of other claims, including dependent claims. (Compl. ¶11).

III. The Accused Instrumentality

Product Identification

The complaint accuses "at least the Defendant products identified in the charts incorporated into this Count below (among the 'Exemplary Defendant Products')." (Compl. ¶11). Because the referenced Exhibit 2 containing these charts was not filed with the complaint, the specific accused instrumentalities are not identified. Given the defendant is The Wendy's Company, the accused products are presumably its customer-facing ordering platforms (e.g., mobile application, website) and the internal systems used to manage and fulfill those orders.

Functionality and Market Context

The complaint does not provide sufficient detail for analysis of the accused product's specific functionality. It makes general allegations that Defendant makes, uses, sells, and imports infringing products and that its employees internally test and use them. (Compl. ¶¶11-12). No probative visual evidence provided in complaint.

IV. Analysis of Infringement Allegations

The complaint incorporates infringement allegations by reference to an external document, Exhibit 2, which was not provided. (Compl. ¶¶16-17). Therefore, a detailed claim chart summary cannot be constructed. The general infringement theory appears to be that The Wendy's Company's systems for mobile or online pre-ordering practice the method and system claimed in the ’424 Patent. This theory would require showing that the accused systems perform each step of an asserted claim, such as receiving a pre-order, validating it upon customer arrival or check-in, and coordinating its preparation and delivery.

• Identified Points of Contention:
  • Technical Questions: A primary factual dispute may concern the specific logic of the accused system. What evidence does the complaint or its (unprovided) exhibits offer that the accused system performs the dynamic calculation required by Claim 1: "determining when a wait time for the customer in the queue is less than or equal to a preparation time"? The case may turn on whether the accused system performs this specific comparison or uses a more basic trigger, such as a customer's geofence entry or manual check-in, to send an order to the kitchen.
  • Scope Questions: The infringement analysis raises the question of whether the components of Defendant's ordering platform meet the definitions of the claim terms. For instance, does the combination of Wendy's mobile app and its in-store point-of-sale system constitute the "vendor management system" recited in the claims, and does it perform all the functions required of that system?

V. Key Claim Terms for Construction

The Term: "vendor management system"

• Context and Importance: This term appears in both independent claims and is central to the invention's logic. Its construction will be critical, as it dictates what type of back-end software architecture falls within the claim scope. Practitioners may focus on this term because its definition will likely determine whether a conventional point-of-sale or order queueing system can be considered an infringing "vendor management system."
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification suggests the invention can interface with existing software, stating it accommodates "conventional seating management and/or kitchen management software." (’424 Patent, col. 9:38-39). This could support an argument that the term should be construed broadly to cover a range of back-of-house restaurant management tools.
  • Evidence for a Narrower Interpretation: The claims themselves assign a specific, active function to this system: "determining when a wait time... is less than or equal to a preparation time..." (’424 Patent, Claim 1). This functional requirement, described as a key part of the solution, may support a narrower construction limited to systems that perform this specific dynamic timing calculation, as opposed to merely placing an order in a queue upon check-in.

The Term: "validating the reservation upon receipt of an indication that the customer has approved of said preorder at or before arrival"

• Context and Importance: This step, as recited in corrected Claim 1, serves as the trigger for moving the preorder into the preparation phase. The meaning of "indication" and "approved" will be key to determining the point of infringement.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The use of the general word "indication" could support a broad reading covering any customer action that signals they are ready for their order, such as pressing an "I'm Here" button in an app or entering a geofenced area.
  • Evidence for a Narrower Interpretation: The patent describes more formal verification processes, for example at an on-site kiosk where a customer may "retrieve the party's meal order, make any desired changes, and then verify the meal order." (’424 Patent, col. 3:5-8). A defendant could argue this language supports a narrower construction requiring a more explicit, multi-step confirmation than a simple automated check-in.

VI. Other Allegations

Indirect Infringement

The complaint alleges induced infringement, asserting that since being served the complaint, Defendant has knowingly and intentionally encouraged infringement by its customers. (Compl. ¶15). The basis for this allegation is Defendant's distribution of "product literature and website materials" that allegedly instruct users on how to use the accused products in an infringing manner. (Compl. ¶14).

Willful Infringement

The allegations of willfulness are based entirely on post-suit conduct. The complaint alleges that Defendant has actual knowledge of the ’424 Patent as of the service of the complaint and that any continued infringement is therefore willful. (Compl. ¶¶13-14). There are no allegations of pre-suit knowledge.

VII. Analyst’s Conclusion: Key Questions for the Case

1. An Evidentiary Question of Functionality: The case will likely depend on whether Plaintiff can produce evidence demonstrating that the accused Wendy's system performs the specific, dynamic timing logic at the heart of the asserted claims—namely, comparing a customer's wait time to a food preparation time to optimize when an order is forwarded to the kitchen. A central question for the court will be whether the accused technology actually operates in this manner.
2. A Definitional Question of Scope: A core legal issue will be the construction of the term "vendor management system". The dispute will likely focus on whether this term can be interpreted broadly to cover modern quick-service restaurant order management systems, or if the functional language in the claims limits its scope to only those systems that perform the specific comparative timing calculation described in the patent.