Christian Mammen, Womble Bond Dickinson. (Photo: Jason Doiy/ALM)

A reunion of former Day Casebeer attorneys has led to the disposal of a patent infringement suit over a voice-enabled virtual assistant.

Womble Bond Dickinson partner Christian Mammen and Lamkin IP Defense's Rachael Lamkin practiced together in the mid-2000s at IP boutique Day Casebeer Madrid & Batchelder. The two teamed up to obtain a favorable claim construction ruling, to kill an opposing expert witness with kindness, and ultimately to win summary judgment of noninfringement Tuesday for client Nuance Communications Inc.

Nonpracticing entity Eloqui Voice Systems LLC holds a series of patents on a "Voice User Interface With Personality." The patents were developed by Stanford University professors and once owned by an Intellectual Ventures fund. The asserted claims include "controlling the voice user interface to provide the voice user interface with a personality; wherein [the] personality emulates human verbal behavior for a particular personality."

Eloqui accused the NINA, which Nuance markets as an intelligent virtual assistant that can engage customers "in natural conversations using voice or text."

"A trier of fact would recognize that Eloqui showed that NINA exhibits a 'personality,' and that Nuance infringes," Eloqui argued in opposition to summary judgment signed by Jayson Sohi of Cotman IP Law Group.

Nuance argued, and U.S. District Judge John Kronstadt of the Central District of California agreed, that "personality" has a specific definition in the patents: spoken language characteristics that "simulate the collective character, behavioral, temperamental, emotional, and mental traits of human beings in a way that would be recognized by psychologists and social scientists as consistent and relevant to a particular personality type."

Lamkin then set out to show that Eloqui's expert witnesses could not say that the NINA has a recognized personality type. At deposition, she asked Portland State University linguist Keith Walters how he would describe the NINA's personality to a friend.

"I'm uncomfortable with the way you phrase the question," Walters answered.

"Please rephrase it for me," Lamkin asked.

Walters then gave a lengthy answer in which he said, "I am not assessing personalities. I am talking about what Nuance has done or is doing."

"I think that's fair," Lamkin replied. When reading Walters' report, she said, "I didn't come to the end and say, ah-ha, she's passive aggressive friendly, right?"

"Yes, I agree with you," Walters said, then added, "I am neither trained nor authorized to start attaching labels, certainly not clinical labels, in cases like this. As a human being I see the NINA video and I have a response."

Walters' testimony and a second infringement expert's were "inconsistent with the claim construction in this case," Kronstadt ruled Wednesday in granting summary judgment. It requires "at a minimum" that a psychologist or social scientist can determine whether the language characteristics are "consistent with and relevant to a personality type."

Mammen and Lamkin once went to trial together at Day Casebeer, and when Lamkin worked in-house at OtterBox she called on Mammen as outside counsel. David Greenbaum, Nuance Communications' vice president of litigation and intellectual property, was also part of Nuance's team, along with Womble partner Brenton Babcock.

"It was an honor to represent Nuance, a company willing to stand up to patent monetizers," Lamkin said in a written statement.

"Nuance felt pretty strongly that it, as an innovative company, was going to fight the fight against meritless claims," Mammen said Wednesday, "and we were vindicated by the court's order."