IP Law Daily, PATENT—S.D. Cal.: Jack in the Box did not infringe magnetic signage patent, (Jan 14, 2026)

By Kevin M. Finson, J.D.

Claims relating to magnetic signs used in fast food restaurants were not plausibly alleged to be infringed because the court’s claim construction effectively excluded the accused products.

Jack in the Box was entitled to dismissal of patent infringement claims based on its signage, the U.S. District Court in San Diego has held. The court found no reason to change its prior claim construction, effectively excluded the accused products (Pemberton v. Jack in the Box, Inc., No. 23:24-cv-01179-TWR-BJW, (S.D. Cal. Jan. 13, 2026)).

Kirk Pemberton was the inventor and owner of U.S. Patents Nos. 7,870,687 (the ’687 patent); 8,205,369 (the ’369 patent); and 8,464,447 (the ’447 patent), each of which related to a “Re-Facing Magnetic System” (RMS) used to a system of signage, such as could be used in a fast-food establishment, which allowed quick and easy changes to menu items and prices by use of magnets to hold sign elements to mounting board or flat surface. Pemberton brought suit for infringement against Jack in the Box, Inc., (JITB), a fast-food retailer, alleging that JITB’s signage infringed all three of his patents. JITB moved to dismiss and obtained dismissal of the original and first amended complaints, with leave to amend. Pemberton filed a second amended complaint, which JITB again moved to dismiss.

Claim construction. Pemberton argued that the court had erred in claim construction on the prior motions to dismiss, specifically, its holding that the terms “affixed to” and “secured to” required a magnetic device either directly attached to a printed sheet or attached to an intermediary component which was then attached to a printed sheet. The court found that each of Pemberton’s arguments about why it erred referred not to the connection between the magnetic device and the printed sheet, but between the magnetic device and the mounting board, and so were not relevant. The court also found that because its constructions were based entirely on intrinsic evidence there was no need to conduct a Markman hearing.

Infringement. Because it saw no reason to change its claim constructions, the court found again, and Pemberton conceded, that there was no way to plausibly allege the accused products infringed under those constructions. Because of Pemberton’s concession on that issue, the court found that any further amendment would be futile.

The court granted the motion to dismiss with prejudice.

The Case is No. 3:24-cv-01179-TWR-BJW.

Judge: Robinson, T.

Attorneys: Christopher P. Schaffer (FisherBroyles LLP) for Kirk Pemberton. Jon Hyland (Hilgers PLLC) for Jack in the Box Inc.

Cases: Patent CaliforniaNews