Dunlap Bennett & Ludwig PLLC, a veteran owned law firm, gave the winning argument in Mycroft AI v. Tumey, decided by the United States Court of Appeals for the Eight Circuit on March 4, 2022. DBL partner Robert Greenspoon explained to the Court of Appeals in January that there was no evidence of “nexus” tying alleged acts of cyber hacking of a patent plaintiff’s law firm to Mycroft AI or its executives. In a published decision, the Eighth Circuit agreed. The appeals court vacated a preliminary injunction issued by the United States District Court for the Western District of Missouri.

In a move the appeals court called “rare,” it also found improper bias by the trial judge and reassigned the case for remand.

After joining the appellate team, DBL made three key filings that influenced the Eighth Circuit opinion. These included two “supplemental authority” notices and an unusual emergency motion after oral argument to stay the preliminary injunction. The appeals court granted the emergency stay on February 3, 2022.

“No court should be allowed to restrain the First Amendment speech of anyone holding passionate views about what is best for our nation’s patent laws and innovation policy,” Greenspoon said. “This decision is a win not only for our clients, but also for public discourse and freedom of speech.”

The case began when a former Air Force major who founded Mycroft AI, Josh Montgomery, declined patent licensing discussions over a patent assertion judged to be improper and abusive. After the patent entity brought what Mycroft AI deemed to be an abusive lawsuit, Major Montgomery wrote internet postings analyzing the assertion, describing his company’s determination to fight it, and criticizing patent abuse in colorful and forceful ways. These case analyses led to the patent entity’s lawyer and law firm filing a ten-count complaint against Mycroft AI, its CEO and Major Montgomery, alleging racketeering, violation of anti-cyber hacking laws, assault, intentional infliction of emotion distress, and other claims. In this second litigation front, the patent entity’s lawyer and law firm (now acting as parties) convinced the trial court to issue a prior restraint on speech – forbidding “reckless incitement” of cyber hacking.

Mycroft AI and its executives denied any involvement either in hacking or incitement. In its decision, the Eight Circuit vindicated their position, finding clear error by the trial court in determining there were grounds for a preliminary injunction. Though the appeals court did not need to reach the First Amendment questions, it held that the trial court’s disregard of weighty First Amendment issues contributed to the conclusion of bias, requiring reassignment.

DBL was joined in victory by several other law firms, including Lathrop GPM LLP, Davis Wright Tremaine LLP and Buchalter, each of whom contributed significantly to the appellate effort.