Brian E. Mitchell of Mitchell & Company pulled together the firearms accessories maker's claim construction proposal, which involved defining 10 terms across two ammunition magazine patents, for its infringement suit against Mission First Tactical Group in Pennsylvania federal court.
He included 22 citations to and quotes from written descriptions and 26 to prosecution history to support his proposals. Of those, two of the written descriptions were real and none of the prosecution history was real.
"I made a horrible mistake," Mitchell told U.S. District Judge Karen S. Marston at an April 28 hearing. "I asked the AI to pull some supporting citations from the intrinsic record that I uploaded. [I] asked it to confirm that quotes were verbatim, what was in the documents, which it did. [I] asked it to double-check its work, which it did. I then submitted the results to a different AI, which did not catch these errors. Rather, it compounded the problem."
He continued: "This is not consumer-grade AI. It's top of the line, both of the ones that I used … It was a tremendous error in judgment."
Mission First Tactical's attorney, Jason Jackson of Kutak Rock LLP, had said the case was particularly egregious because prior instances of attorneys being caught using unchecked AI have been about erring on citations, while this made up evidence.
"I was kind of incredulous, and then I double-checked with my colleagues and, 'You guys make sure I'm reading this right,' you know," Jackson told the court.
Magpul brought in counsel from Cooper & Kirk PLLC for the hearing while still trying to hire patent counsel. On May 8, Bryan Cave Leighton Paisner LLP entered the case.
Mitchell had a decade at Cooley LLP before launching his own firm in 2010.
"Magpul wanted to make sure we were here to, first of all, to apologize to the court and to [Mission First Tactical] about what happened with respect to the joint construction statement," Cooper & Kirk attorney Vincent Colatriano said at the hearing in the Eastern District of Pennsylvania. "It was a very serious mistake … [We're] going to make sure our representation verifies everything that is ever submitted to the court."
Mitchell is still on the case, but not in a leadership position, and in an April 18 status report, said any sanctions should be on him, not the company.
During the hearing, Jackson said they would be open to working out fees and costs to cover the work tied to unraveling the AI mistakes, putting it in the realm of $10,000.
Colatriano told the court that there is no authority that supports sanctioning a company for a mistake where the attorney has taken full responsibility.
"I don't think it's your client," the judge responded. "I think it will be Mr. Mitchell. He even said so much."
The parties are continuing to work on a possible remedy, and Judge Marston has encouraged Mission First Tactical to request sanctions under Section 11.
Jackson also told the court that of the three patents Magpul had asserted, one had been surrendered before the litigation began in order to get reissue patents. Magpul dropped the claims tied to the so-called dead patent on April 18, with prejudice.
Counsel for Magpul and Mission First Tactical declined to comment. Mitchell didn't immediately respond to a request for comment Friday.
The patents-in-suit are U.S. Patent Nos. 8,991,086 and 8,839,543. The surrendered patent is U.S. Patent No. 10,072,903, and was succeeded by U.S. Patent Nos. RE49,104 and RE50,303.
Magpul is represented by Daniel A. Crowe, Colin D. Dailey and Leif Olson of Bryan Cave Leighton Paisner LLP, Vincent J. Colatriano and Brian W. Barnes of Cooper & Kirk PLLC, Brian E. Mitchell of Mitchell & Company and Edward F. Borden Jr. of Earp Cohn PC.
Mission First Tactical is represented by Jason S. Jackson and Lindsay Andreuzzi of Kutak Rock LLP.
The case is Magpul Industries Corp v. Mission First Tactical Group, Inc. et al, case number 2:24-cv-05551, in the U.S. District Court for the Eastern District of Pennsylvania.
--Editing by Michael Watanabe.
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