In January 2020, Mycroft AI, a Missouri-based developer of an open source voice assistant, was sued for patent infringement by Voice Tech Corp., a non-practicing entity, in the Eastern District of Texas. (The suit was then dismissed and refiled in the Western District of Missouri.)
The Prior Art Landscape
The claims of the patents are broad. For example, the first claim of the ‘679 patent is:
A method of accessing and controlling a computer from a mobile device, comprising: receiving audio data from the mobile device, at the computer, at an audio command interface; the audio command interface decodes the audio data into a command; the audio command interface selects, from at least one operating system and at least one application, one operating system or one application, wherein the audio command interface decides is the appropriate operating system or application to execute at least one process in response to the command; executing with the selected operating system or application the at least one process in response to the command; generating output data in response to the selected operating system or application executing the at least one process; and transmitting the output data to the mobile advice.http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&p=1&u=/netahtml/PTO/srchnum.html&r=1&f=G&l=50&d=PALL&s1=10491679.PN.
Mycroft commented about possible prior art:
Voice technologies like the one that Mycroft is building can be traced back more than 50 years. In fact, Mycroft is named after a voice assistant that appeared in Robert Heinlein’s 1963 Hugo Award winning novel “The Moon is a Harsh Mistress”. All of the underlying technologies are described in the novel and they have been broken out time and again over the past half-century in popular science fiction. “Hal” from 2001 a Space Odyssey, Star Trek’s “Computer”, Knight Rider’s “Kitt” – all of these are examples of how voice technology might work in the real world. They’ve also been disclosed in real-world tech like Honda’s Asimo and more than 3 decades of automotive technologies from Nuance.Troll Hunter – Mycroft’s Position on Patent Trolls, dated February 5, 2020
Using science fiction as prior art is not unheard of, but the most famous example is probably in the Apple v. Samsung case over tablet design, which involved a design patent rather than a utility patent. Inventions in science fiction suffer from the impediment of being “non-enabling” (which is legal-speak for fictional). But while we’re at it, we could throw in Halo’s Cortana.
The lawsuit was initially a set piece in NPE patent enforcement, though one wonders why patent assertion entities ever make the decision to go after open source projects. It is almost as if they are not doing their homework. Open source projects make tragically bad targets for patent lawsuits. A case in point was the patent suit against GNOME, which ended badly for the plaintiff. Open source projects — even those created within commercial enterprises — tend to have shallow pockets, but also lots of friends who hate software patents and love to help invalidate them. That is not a good combination in a defendant profile, particularly when asserting patents that seem so susceptible to prior art challenges.
The Discussion Turns Ugly
However, in this case, the war of words has tipped into a different kind of trolling on on the defendant’s side.
The tone of Mycroft’s public blog post cited above is not surprising for an open source project. It states publicly that it will not settle the lawsuit and intends to fight it out. It calls Voice Tech a bully and a troll, ending with: “Patent trolls get paid because…it is usually cheaper in the short run to pay a troll than it is to litigate. It is also cheaper to give a schoolyard bully your lunch money than it is to visit a doctor. The thing is, once you pay the bully, he’ll just come back again and again and again.” The blog pictures Montgomery “armored up” as the “troll hunter” for the metaphorical battle.
But if you look at the archived version of the blog post, it is more aggressive. The blog engaged in what were probably intended as colorful metaphors, saying, “In my experience, it’s better to be aggressive and ‘stab, shoot and hang’ them, then dissolve them in acid.” This was actually a quotation of an article about an unrelated municipal broadband ban, linked in the blog. The archived version also says, “in the long run the best way to deal with a bully is to punch him square in the face.”
Unfortunately, the archived version also reproduced email correspondence from the plaintiff’s attorney — correspondence marked as “highly confidential,” though the basis for that designation is unclear. This correspondence contained the attorney’s return email address. The resulting community “support” allegedly resulting from the blog post may have been more extreme that Mycroft expected.
In April, Voice Tech filed a motion for “Relief to Require Decorous and Civil Conduct.” That motion reproduces an email received by Voice Tech’s attorney. The email is publicly available as an attachment to the motion filed by Voice Tech. (Case 4:20-cv-00111-RK Document 1-4 Filed 02/18/20 Page 2 of 2). Though I have cited it here for transparency, I have not linked to it, because I don’t want to dignify it with any unnecessary attention. I don’t recommend reading it, but in sum, it is vulgar, threatening, and deranged, uses a wide variety of hate speech. In fact, it almost seems like a general purpose spewing of hatred, without any particular relevance to the case. And while clearly such a horrific rant would not be “decorous” conduct by a litigant, the relationship of the email to Mycroft or the blog post is not entirely clear. Voice Tech implies that Mycroft exhorted this behavior in its blog post, a practice sometimes referred to as doxing. Voice Tech asked the court to order Mycroft to “remov[e] comments that have been published on Mycroft’s website threatening, suggesting, and/or inciting violence and death to Voice Tech’s counsel.”
According to Tech Dirt, the court was sympathetic to Voice Tech’s concerns. The court ordered Mycroft to delete a portion of its post that allegedly resulted in the threats: “I’d like for everyone in our community who believes that patent trolls are bad for open source to repost, link, tweet, and share this post. Please help us to get the word out by sharing this post on Facebook, LinkedIn, Twitter, or email.” But according to Tech Dirt, “The story had gone viral on Reddit, and…some immature Reddit users did some immature things, sending … some angry emails….There was no reason to believe they were coming from Montgomery himself.” The Tech Dirt article commented, “A company should certainly have the right to notify its community that it is in the middle of a costly legal battle (one that it believes is frivolous)…” The characterization of the email attached to Voice Tech’s motion as “immature” is accurate, but woefully insufficient.
More conventionally, Mycroft has publicly stated its intention to file an inter-partes review (IPR) to seek invalidation of the patents. Such actions are expensive, but Mycroft apparently has the support of some pro bono legal help from EFF and OIN.
Special thanks to Alero Egbe of O’Melveny for help with this post.
Update written as of December 17, 2020: Unified Patents, a member-based anti-trolling initiative, has instituted a PTAB action to seek invalidation of the patent asserted in this case. The PTAB has instituted trial on all challenged claims of the patent.
Update written March 25, 2022: The US Court of Appeals for the Eighth Circuit vacated an injunction restraining Mycroft from engaging in allegedly harassing conduct because there was no evidence tying the defendants to the alleged misconduct and reassigned the case to a new district judge. Tumey v. Mycroft AI, Inc., Case No. 21-1975 (8th Cir. Mar. 4, 2022) (Erickson, J.)