SmartOrder LLC v. Five Guys Enterprises LLC

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: SmartOrder LLC (New Mexico)
  • Defendant: Five Guys Enterprises LLC (Delaware)
  • Plaintiff’s Counsel: Rabicoff Law LLC
• Case Identification: 2:25-cv-00838, E.D. Tex., 08/21/2025
• Venue Allegations: Plaintiff alleges venue is proper because Defendant maintains an established place of business in the Eastern District of Texas and has committed acts of patent infringement within the district.
• Core Dispute: Plaintiff alleges that Defendant’s customer ordering systems infringe a patent related to systems and methods for improving customer wait times and service efficiency by pre-ordering goods and services.
• Technical Context: The technology at issue addresses operational inefficiencies in the service industry by creating a system where customer orders are placed in advance and then intelligently timed for fulfillment upon the customer's arrival.
• Key Procedural History: The patent-in-suit is a continuation of a prior, abandoned U.S. patent application, which establishes an earlier priority date for the claimed subject matter. The complaint does not mention any prior litigation or post-grant proceedings involving the patent.

Case Timeline

Date	Event
2007-04-27	’424 Patent Priority Date
2016-07-12	’424 Patent Issue Date
2025-08-21	Complaint Filing Date

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, System and method for improving customer wait time, customer service, and marketing efficiency in the restaurant, retail, hospitality, travel, and entertainment industries, issued July 12, 2016.

The Invention Explained

• Problem Addressed: The patent's background describes a need in service industries like restaurants to reduce customer wait times, which can lead to lost customers during peak hours, and to improve overall service efficiency and accuracy (’424 Patent, col. 2:10-24).
• The Patented Solution: The invention is a pre-ordering system where customers can create profiles and place orders online or via a kiosk before arriving at a venue. Upon arrival, the system verifies the customer and forwards the preorder to the service provider (e.g., a kitchen). The core innovation is the system’s ability to optimally time the delivery of the order based on the customer’s readiness, such as by comparing the customer’s wait time in a seating queue to the kitchen’s preparation time for the meal, ensuring the food arrives shortly after the party is seated (’424 Patent, Abstract; col. 3:13-24).
• Technical Importance: The technology seeks to synchronize a digital pre-order with the physical-world logistics of service delivery, thereby minimizing "dead time" for both the customer and the business. (’424 Patent, col. 2:10-24).

Key Claims at a Glance

• The complaint does not specify which claims of the ’424 Patent are asserted, instead referring to "Exemplary '424 Patent Claims" in an unprovided exhibit (Compl. ¶11, ¶16). Independent claim 1 is representative of the patent's method claims.
• Independent Claim 1: A computer-implemented method comprising the essential steps of:
  • A computer receiving a reservation with a preorder of products/services prior to a customer's arrival.
  • Associating a customer payment account with the preorder.
  • Validating the reservation upon indication of the customer's arrival and entering the customer into a preparation queue of a vendor management system.
  • The vendor management system determining when the customer's wait time is less than or equal to the preorder's preparation time.
  • Forwarding the preorder for preparation at or before the customer is available to receive it.
  • Storing a record of the customer's purchases in a customer profile.
• The complaint broadly alleges infringement of "one or more claims" (Compl. ¶11).

III. The Accused Instrumentality

Product Identification

• The complaint does not name a specific accused product or service. It refers generally to "Exemplary Defendant Products" that are identified in charts within an exhibit not attached to the publicly filed complaint (Compl. ¶11, ¶16). Given the defendant is Five Guys Enterprises LLC, the accused instrumentalities are presumably its online, mobile application, and/or in-store kiosk ordering systems.

Functionality and Market Context

• The complaint alleges that Defendant makes, uses, sells, and imports products that practice the technology of the ’424 Patent (Compl. ¶11). It also alleges that Defendant's employees internally test and use these products (Compl. ¶12). The complaint does not provide specific details on the technical functionality of the accused products or their market positioning.

IV. Analysis of Infringement Allegations

The complaint alleges that the "Exemplary Defendant Products" infringe one or more claims of the ’424 Patent, either literally or under the doctrine of equivalents (Compl. ¶11). It incorporates by reference "charts comparing the Exemplary '424 Patent Claims to the Exemplary Defendant Products" contained in Exhibit 2, which was not provided with the complaint (Compl. ¶16-17). Without this exhibit, the specific factual basis for infringement cannot be detailed in a claim chart format. The narrative infringement theory is that Defendant's products for customer ordering possess all the elements of one or more claims of the ’424 Patent (Compl. ¶16).

No probative visual evidence provided in complaint.

Identified Points of Contention

• Technical Questions: A central technical question will likely be whether the accused Five Guys ordering system performs the specific timing logic recited in the claims. For example, what evidence does the complaint provide that the accused system actively "determin[es] when a wait time for the customer in the queue is less than or equal to a preparation time" before sending an order to the kitchen, as required by claim 1? A system that immediately forwards an order upon customer check-in may not meet this limitation.
• Scope Questions: The interpretation of "vendor management system" may be a key issue. Does this term, as used in the patent, require a system that integrates with on-site seating and kitchen management software as described in the specification's embodiments (’424 Patent, Fig. 4A), or can it be read more broadly to cover a standard digital ordering platform that lacks such integration?

V. Key Claim Terms for Construction

The Term: "vendor management system"

• Context and Importance: This term is central to the apparatus that performs the claimed timing function. The defendant may argue its ordering platform is not a "vendor management system" in the context of the patent, which could be a non-infringement defense.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The patent does not appear to provide an explicit, limiting definition of the term, which may support an argument that it should be given its plain and ordinary meaning.
  • Evidence for a Narrower Interpretation: The specification consistently describes the "vendor management system" in the context of interfacing with "conventional seating management and/or kitchen management systems" to orchestrate order timing (’424 Patent, col. 2:36-39). The detailed flowcharts show interaction between the system and separate seating or kitchen software, suggesting the term implies a more complex, integrated system than a simple order portal (’424 Patent, Figs. 4A-4D).

The Term: "determining when a wait time for the customer in the queue is less than or equal to a preparation time"

• Context and Importance: This phrase describes the core functional logic of the invention. Proving that the accused system performs this precise comparison is essential for the plaintiff's infringement case.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: A party could argue this language covers any automated process that intelligently delays an order based on anticipated customer readiness, even if it does not use discrete numerical values for "wait time" and "preparation time."
  • Evidence for a Narrower Interpretation: The claim language recites a specific comparison of two variables: "wait time" and "preparation time." The specification reinforces this with flowcharts depicting this logic, such as the step where "the seating management system will tell the kitchen management system to begin cooking the food" when "kitchen preparation time is less than or equal to seating wait time" (’424 Patent, col. 10:22-26). This may support a construction requiring an explicit, comparative calculation.

VI. Other Allegations

• Indirect Infringement: The complaint alleges induced infringement, stating that Defendant sells the accused products and distributes "product literature and website materials" that instruct customers on how to use them in an infringing manner (Compl. ¶14-15).
• Willful Infringement: The complaint bases its willfulness allegation on post-suit knowledge. It alleges that service of the complaint constitutes "actual knowledge" and that Defendant's continued infringement thereafter is willful (Compl. ¶13-14). No allegations of pre-suit knowledge are made.

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

• A central issue will be one of functional operation: does the accused ordering system perform the specific, comparative timing logic recited in the patent's claims—actively comparing a customer "wait time" to a food "preparation time" before forwarding an order—or does it operate on a simpler trigger, raising the question of a fundamental mismatch with the claimed invention?
• The case will also likely involve a question of definitional scope: can the term "vendor management system," described in the patent in the context of integrated seating and kitchen software, be construed to cover a modern, standalone digital ordering platform of the type used in the fast-casual restaurant industry?