Missouri Judge Yanked From Tech Patent Lawsuit Over ‘Antagonism’

A federal judge in Missouri has shown “a sufficiently high degree of antagonism against” a tech company to warrant reassignment of a case alleging Mycroft AI Inc. waged “information warfare” in retaliation for patent-infringement suits, an appeals court ruled on Friday.

Tod Tumey, a Texas lawyer, had won his bid for a preliminary injunction barring Mycroft, its founder, and its chief executive from engaging in “cyber-attacks, hacking, and other harassing behavior” as the case is litigated.

Mycroft appealed, claiming Tumey hadn’t proved it was responsible and that the order was unconstitutionally vague since Mycroft may be punished for any attempted attacks by any third party.

On Friday, the U.S. Court of Appeals for the Eighth Circuit agreed with the Kansas City company, vacating Judge Roseann A. Ketchmark’s injunction and remanding the case to the district court.

The three-judge panel ordered the Western District of Missouri to assign a new judge for reconsideration of the April 2021 injunction request.

A trial is set to begin Aug. 29.

Friday’s opinion, written by Judge Ralph R. Erickson, acknowledged “the frustrating conduct by the lawyers and the parties”—he called it “trench warfare.”

But Erickson called this “a rare case in which the history, proceedings, and order reflect a sufficiently high degree of antagonism against Mycroft to warrant reassignment of the case on remand.”

The move is appropriate, Erickson said, because “a reasonable person aware of all the circumstances and events that have transpired so far would harbor doubts about the judge’s impartiality.”

Tumey represents Voice Tech Corp. in pending and separate patent-infringement suits against Mycroft and the two executives. Mycroft is outspoken in its distaste for “patent trolls,” a disparaging term for those who launch litigation alleging infringement of patents even when those claims are frivolous.

The company has written articles, posted comments on social media, and sought the help of “others who believe patent trolls are bad for open source to re-post, link, tweet, and share its posts,” Friday’s ruling says.

In the underlying litigation, over patents for voice assistance technology, Tumey already had won an order “requiring decorous and civil conduct by the parties, which include a request that Mycroft cease using the term ‘patent troll,’” the appeals court said.

In this action, Tumey wanted to expand those restrictions. He sought a temporary restraining order or an expedited preliminary injunction.

But about an hour before that hearing’s scheduled start, Tumey sent the court and lawyers a proposed order for a preliminary injunction. During the videoconference hearing, Mycroft objected, “specifically expressing concerns about the last-minute conversion” from a temporary restraining order, which would’ve lasted 14 days, to an order that would endure through the case’s resolution.

Mycroft’s arguments failed to sway Ketchmark. But the Eighth Circuit panel was more amenable: “We have grave doubts that the notice was sufficient to allow Mycroft a meaningful opportunity to prepare” before the injunction was issued, Erickson wrote.

Beyond the procedural issue, the appeals court found the Missouri judge “committed a clear error of judgment” when she issued the injunction based only on “temporal proximity” when an “uptick in harassing activity” coincided with “a significant development in the litigation.”

The appeals court found “a paucity of evidence” that would link Mycroft to the “unlawful acts.”

Erickson was joined in the opinion by Chief Judge Lavenski R. Smith and Judge Roger L. Wollman.

Tumey is represented by Tumey LLP, Berkowitz Oliver LLP. Mycroft AI is represented by Lathrop GPM LLP and Dunlap Bennett & Ludwig PLLC.

The case is Tumey v. Mycroft AI Inc., 8th Cir., No. 21-1975, opinion and order issued 3/4/22.