Eighth Circuit Overturns Injunction for Harassment Allegedly Inspired by Patent Troll Rhetoric

“Tumey claims that he and his family have suffered from three waves of cyber attacks, email and social media account phishing, and harassing phone calls that are silent except for heavy breathing, each of which has occurred around significant events in the patent litigation against Mycroft.”

Harassment gavelOn March 4, the U.S. Court of Appeals for the Eighth Circuit issued a ruling in Tumey v. Mycroft AI, Inc. in which the appellate court overturned the Western District of Missouri’s grant of injunctive relief to Tumey, a patent attorney representing a plaintiff asserting patent claims against Mycroft. The Eighth Circuit found that Tumey had not met the requisite standard of proof to show that Mycroft had engaged in cyber attacks and harassing phone calls targeting Tumey and his family to support injunctive relief. The appellate court also remanded the case with instructions to reassign the case to a different district court judge.

Mycroft’s Strident ‘Patent Troll’ Language Raises Suspicions of Harassment Campaign

The present appeal stems back to a Western Missouri lawsuit filed by Tod Tumey and alleging violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act, the Computer Fraud and Abuse Act, the Stored Wire and Electronic Communications Act and several other state and common law claims. Tumey claims that he and his family have suffered from three waves of cyber attacks, email and social media account phishing, and harassing phone calls that are silent except for heavy breathing, each of which has occurred around significant events in the patent litigation against Mycroft filed by Voice Tech Corporation, which is represented in those proceedings by Tumey.

Further bolstering the assertion that Mycroft is involved in the cyber attacks and harassment targeting Tumey and his family is the bully pulpit that Mycroft has used to publicize its own strident views on “patent trolls.” Mycroft, which offers voice assistant technology through an open source model, has publicized the Voice Tech patent suit through official company channels. In an October 2020 blog post on the lawsuit by Mycroft’s Founder Joshua Montgomery, the company gave a dire warning to “patent trolls”:

[D]on’t pick a fight with a pair of founders who’s [sic] prior reputation was built on beating the telecommunications lobby, and fighting off bullshit assertions from Marvel – one of the most successful intellectual property franchises on earth. Finally, don’t pick fights with folks who specialize in information warfare. You’ll get your ass kicked.

In another Mycroft blog post, Montgomery reportedly wrote that “[i]n my experience, it’s better to be aggressive and ‘stab, shoot and hang’ [patent trolls], then [sic] dissolve them in acid. Or simply nuke them from orbit, it is the only way to be sure.” Although that language has been culled from the original blog post, it is referenced in the recent Eighth Circuit decision and was offered as evidence to connect Mycroft to the cyber attacks and harassment against Tumey and his family. Montgomery’s LinkedIn account shows that he has 13 years’ experience with the Hawaii Air National Guard and works in a “fast paced combat communications” environment, which would certainly give one the experience necessary to conduct military cyber operations against a civilian professional and his family.

Eighth Circuit: ‘Grave Doubts’ That One Hour Was Sufficient Notice

Tumey sought a temporary restraining order (TRO) against Mycroft and, one hour before the TRO hearing, Tumey circulated a proposed preliminary injunction order that the district court wound up granting that day despite objection from Mycroft. That injunctive relief ordered Mycroft and its agents to refrain from engaging in cyber attacks, hacking or harassment of Tumey and his family, and to refrain from disclosing Tumey’s confidential correspondence obtained through unauthorized means. Mycroft appealed, raising issues with the lack of evidentiary support to show Mycroft’s responsibility for the attacks and the unconstitutionality of the injunction’s prior restraint on speech and publication and its prohibition against speech protected by the First Amendment.

In discussing Mycroft’s appeal, the Eighth Circuit noted that it had “grave doubts” that Mycroft was provided with notice sufficient for a meaningful opportunity to be heard as is required by U.S. Supreme Court case law applying Federal Rule of Civil Procedure 65(a)(1). Not only did Mycroft have one hour to prepare for Tumey’s proposed preliminary injunction prior to the evidentiary hearing on the TRO, but the district court prevented Mycroft from obtaining Tumey’s evidence connecting Mycroft to the conduct in question, and indeed entered the injunction without conclusive evidence from a “honey pot” investigation conducted by a business partner of Tumey’s.

Regardless of the notice issue, the Eighth Circuit found the factors on the record didn’t weigh in favor of granting injunctive relief to Tumey. The appellate court held that it was clear error for the district court to issue a preliminary injunction without evidence demonstrating Mycroft’s responsibility. While the cyber attacks and harassment were timed around significant events in Voice Tech’s patent litigation, those documents are publicly available so not much weight can be afforded to the timing. While the appellate court noted that Mycroft, Montgomery and others connected to the firm certainly have the requisite expertise for the harassment campaign, “[t]here exists specific public interest in this particular case by Mycroft followers who seek to ensure the open-source network remains available.” Even if Tumey had evidence connecting Mycroft to the harassment campaign, the Eighth Circuit found that he hadn’t demonstrated on the record that money damages would not suffice to compensate Tumey for his injury.

Infected SCOTUS Opinions Create Presumption That ‘Patent Trolls’ are Public Interest Issue

While the Eighth Circuit didn’t issue an opinion on whether Voice Tech’s patent suit was part of the “patent troll industry,” and although the appellate court recognized that the alleged harassment campaign is “unacceptable and deserving of redress,” the court’s analysis of the factors weighing against the injunction noted the purported public interest in “inconvenienc[ing] litigation involving a suspected patent troll.” Of course, others would argue that there’s no legitimate definition for “patent troll,” which is often just used as a pejorative term used to smear patent owners who have the temerity to assert their property rights against well-resourced, and sometimes brutish, infringers. Unfortunately, there are Supreme Court opinions, such as Justice Antonin Scalia’s dissent in Commil USA v. Cisco Systems (2015), which the Eighth Circuit cites here as representing a heightened public interest in attacking patent trolls.

It’s hard to find much fault with the Eighth Circuit’s resolution of Mycroft’s appeal; the extreme remedy of a preliminary injunction typically requires a higher standard of evidentiary proof than Tumey was able to present during the TRO hearing. At the same time, the decision is an unfortunate reminder that vituperative language by Big Tech lobbyists and open source executives espousing anti-patent views, none of which is borne out by any reputable evidence, has found a foothold in Supreme Court case law through opinions like Scalia’s Commil dissent and Justice Anthony Kennedy’s concurrence in eBay v. MercExchange, which served as an important vector through which the “patent troll” narrative infected the Supreme Court. Over the course of American history, several threads of Supreme Court case law have served more to oppress the natural rights of human beings in favor of those parties who would rather ignore those rights in order to obtain free improvements to business productivity. Although today’s pejorative of choice may instead be “patent troll,” its application stems from the same myopic quest for profit that has been rightly overturned in other strains of constitutional law, from which intellectual property law derives its authority.

Further, Voice Tech and Tumey aren’t only patent-related entities decried as “patent trolls” who have received similar treatment from unknown parties in response to infringement litigation. Smartflash’s Patrick Racz, who invented systems and methods for accessing multimedia content embodied in Apple’s App Store, received anonymous death threats targeting him and his family after Apple smeared Racz as a “patent troll” in the news media. Big Tech and open source advocates should see that their unprincipled attacks against patent owners are opening a Pandora’s box of horrific consequences against not only inventors but also their children. We ought to live in a better world than that.

The Eighth Circuit, along with overturning the injunction, also granted Mycroft’s request that the case be reassigned to a new judge on remand to the district court. Reviewing the record, the Eighth Circuit held that the district court had demonstrated a greater degree of antagonism against Mycroft than against Tumey. The court further found that granting Tumey’s request for a preliminary injunction on one hour’s notice, and its preventing Mycroft from obtaining evidence from Tumey connecting Mycroft to the alleged conduct, further “fanned the flames” and ultimately led to the issue of a preliminary injunction that “went beyond the intended use of maintaining the status quo until the claims can be resolved.” The Eighth Circuit found that a reasonable person aware of the circumstances and events surrounding the litigation could doubt the judge’s impartiality, making reassignment to a different judge appropriate.

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Join the Discussion

2 comments so far.

  • [Avatar for C. Whewell]
    C. Whewell
    March 16, 2022 02:21 pm

    Maybe someday some judge with some guts will put an end to all the fictitious patent-troll name-calling nonsense, and make the litigant grow up beyond the name-calling stage, by sanctioning anyone in my courtroom who even breathes the word “troll” !!

  • [Avatar for Anon]
    March 11, 2022 09:56 am

    Propaganda is used because propaganda works.