A long time ago there was a start-up software company called Ameranth. The company had some good ideas and attempted to incorporate them into a system where restaurant servers could take orders with a mobile device and communicate the orders directly to the kitchen. However, when Ameranth’s attempted implementation of its ideas ultimately failed, the company abruptly changed course and became, as most would call them, a patent troll. In legalese, Ameranth would be classified as a “non-practicing entity,” but for anyone out there creating value, they’re a pain in the ass and a serious drag on the restaurant industry.
COVID-19 has forced many operators – and by extension their technology suppliers – to prioritize online ordering and delivery to stay alive. Well wouldn’t you know, Ameranth just happens to have a portfolio of patents that it asserts are related to mobile/online ordering. The “mobile devices” used by restaurant servers that Ameranth envisioned, it now conveniently asserts, are the mobile phones of customers in their homes. And what better time to pursue damages than when an industry is literally on brink of collapse.
Bravo. We don’t care what your mothers say Ameranth, you’re great people.
How did we get here? A brief history of Ameranth’s patents and litigation follows.
Ameranth had a family of six issued patents. Ameranth filed its first patent application in 1999 and received its first patent, U.S. Patent No. 6,384,850 (the “’850 patent”) in 2002. Additional patents in the same family then issued in 2005 (U.S. patent No. 6,871,325 (the “’325 patent”)), 2006 (U.S. patent No. 6,982,733 (the “’733 Patent”)), 2012 (U.S. patent No.8,146,077 (the “’077 Patent”)), 2015 (U.S. patent No. 9,009,060 (the “’060 Patent”)) and 2017 (U.S. patent 9,747,651 (the “’651 patent”).
Ameranth started its litigation campaign in 2007, when it sued Menusoft, Inc. in Texas for infringement of the ’850, ’325 and ’733 patents. A jury found the asserted claims of these patents both invalid and not infringed by Menusoft’s online ordering technology.
Determined not to fail at getting something for nothing, Ameranth sued about 40 companies from 2011 to 2013, including the major pizza franchisees Domino’s Pizza, Papa John’s and Pizza Hut, and other restaurant, hotel, ticketing and online ordering service providing companies for infringement of claims of the ’850, ’325, ’077 and ’733 patents. Through a complex combination of proceedings in the U.S. Patent Office and the federal district and appellate courts, all asserted claims of the ’850, ’325 and ’733 patents were also declared invalid/unpatentable.
Most recently, in a case against Domino’s Pizza, the asserted claims of the ’077 patent were declared unpatentable, a finding that was affirmed by the Federal Circuit Court of Appeals. As a matter of course, Ameranth is requesting to appeal this decision to the U.S. Supreme Court, but the Supreme Court, which only grants on average about 1% of these requests, can choose to decline it.
“We do not expect the Supreme Court to take the appeal, but if it does, we expect the Court will agree with the findings of both the federal district and appellate courts,” said Tom Cunningham of Brooks Kushman, P.C., who represents Domino’s Pizza.
Which gets us back to present time. After substantially all of the claims of its first four patents have been declared invalid/unpatentable, Ameranth is back with a new lawsuit against Olo, asserting that Olo’s online ordering systems infringe the ’651 patent, the most recently issued patent in the family. Some people we talked with believe that the ’651 patent, when challenged, will also likely be found to be invalid/unpatentable. One of them stated, “I have reviewed the ’651 patent and believe it suffers from the same problems that rendered the previous four Ameranth patents unpatentable.”
The defendant, Olo, works with over 300 restaurant brands representing over 70,000 restaurant locations nationwide, so this lawsuit has the capability of leaving numerous restaurants without the ability to accept mobile/online orders.
The lawsuit asserts that Olo infringes because its mobile and online ordering system uses logic/rules to make decisions – which could implicate almost any mobile/online ordering system in existence today. Thus, unless this patent in declared invalid as Ameranth’s previous four patents were, this is likely only the beginning of another Ameranth onslaught on the restaurant industry. Are we having fun yet?
If you have questions about the Ameranth patents, Mr. Cunningham can be reached at:
Thomas W. Cunningham
Brooks Kushman, P.C.
248-226-2762
Add comment