In yet another example of cloud-related competitor patent litigation, NICE Ltd., an Israeli telecommunications company, along with both its U.S. affiliate NICE Systems, Inc. and newly-acquired U.S. subsidiary Mattersight, recently filed a patent infringement complaint against speech analytics competitor CallMiner in the U.S. District Court for the District of Delaware. NICE has alleged infringement of twelve patents from its portfolio of more than 400 U.S. and foreign granted and pending patents against CallMiner’s flagship solutions platform, Eureka and related software modules and services (e.g., Analyze, Coach, Alert, Redact, API, and Xchange). The asserted NICE patents cover a variety of technologies, including speech analytics, call monitoring, call center management, and data security.
NICE, founded in Israel in 1986, got its start developing telephone voice recording hardware for the Israel Defense Forces. Since its founding, NICE has diversified its offerings and is currently best known for its comprehensive suite of cloud-based and on-premise solutions used in the customer experience, regulatory compliance, and financial crime prevention industries. With a customer base spanning 150 countries, 25,000 organizations, and 85 of the Fortune 100, NICE has established itself as a leader in providing data capture and analytics tools, multi-channel interaction recording, financial crime, customer experience management, and workforce optimization. As of 2018, NICE further expanded its solutions offerings with the acquisition of Chicago-based Mattersight, best known for its SaaS-based behavioral, customer, and speech analytics software solutions.
While smaller, Massachusetts-based competitor CallMiner similarly focuses on developing speech analytics software solutions. Since its founding less than 20 years ago, CallMiner has positioned itself as a leader in the customer service and call center industry with its diverse solutions offerings garnering numerous awards, including the “Best Use of Technology” award in 2018, the “Technovation” award in 2016, and the “Product of the Year” award in 2009. With its flagship platform, Eureka, CallMiner is able to leverage artificial intelligence and machine learning—including predictive scoring, sentiment analysis, and curated categorization—to provide speech and text analytics for customer engagement centers.
In its January complaint, along with its patent infringement allegations, NICE included a multitude of claim charts purportedly evidencing a list of exactly how CallMiner’s Eureka platform infringes the twelve asserted patents. (see Complaint’s Exhibits, 13-24). NICE also notes that it approached CallMiner on multiple occasions to negotiate a license agreement before initiating its current lawsuit. In addition to a permanent injunction against CallMiner’s alleged infringing conduct, NICE seeks monetary damages, a compulsory future royalty, and a judgment that this case is exceptional due to CallMiner’s willful and deliberate infringement thereby entitling NICE to enhanced damages. (see Complaint’s Prayer for Relief, ¶¶ a-i).
While NICE does not have a storied history of offensive patent strikes, it has defensively asserted one of the twelve asserted patents in this case in an earlier lawsuit. In a 2006-initiated complaint, counter-defendant NICE asserted U.S. Pat. No. 6,785,370 against competitor Witness Systems (currently Verint Systems) who had earlier filed its own patent infringement lawsuit against NICE in 2004. Interestingly, Witness Systems and CallMiner, the defendant in the current lawsuit, were once partners. In 2004, both companies formed an alliance that ultimately produced the eQuality CallMiner technology solution—an industry solution aimed at analyzing speech patterns to identify ideal calls for performance analysis based on conversational context. While that case ultimately resulted in an uncontested summary judgment (i.e., a likely settlement) in 2008, it is certainly reasonable to wonder why NICE decided to go on the offensive in this case after years of lying low on the legal front. As this case is in its early stages, with CallMiner not yet responding to the complaint, answers to this and other questions will hopefully surface as litigation progresses.