Overlay Obstacles: AudioEye Files Suit Against accessiBe, Claims Patent Infringement

On September 4th, 2020 AudioEye filed a lawsuit (Case No. 1:20-cv-924) in the U.S. District Court for the Western District of Texas in Austin against accessiBe alleging "willful, deliberate, and intentional" infringement of AudioEye's patents for digital accessibility overlays. Accessibility overlays are add-on solutions that inject accessibility fixes directly into a web page (usually via JavaScript) rather than updating the existing code.

The claim is that accessiBe's solution is covered by AudioEye patents and, absent some licensing agreement with AudioEye (which doesn't exist), Israel-based accessiBe doesn't have the right to sell the solution into the U.S. domestic market.

This lawsuit is a federal matter and while the claims of infringement are specific to accessiBe, the scope of the them will cover every overlay technology on the market – either in a paid or free format. Therefore, this could have implications beyond these two companies, and include other accessibility overlay solution providers and even customers themselves.

What are the most important points about the lawsuit?

There are three notable points about this case. First, if the patents are upheld then AudioEye would have a monopoly on the core technology provided for accessibility overlays. In that scenario, if you are a customer of such technology you either would have to buy it from AudioEye or from a party that licenses their patents.

Second, the organization that holds those patents (AudioEye) has a core business strategy that relates to securing and enforcing the patents on its technology. This is not a secret. It's a clear part of AudioEye’s business strategy and they are—to their credit—transparent about it. So, it’s safe to assume that they understand the time, attention, and money it takes to enforce patent rights and they are willing to do so. This means that the risk is not likely to be resolved any time soon.

Third, in deploying any overlay technology, you now run the material risk of getting dragged into an ugly intellectual property dispute. Across all the claims of infringement in the complaint you'll find this:

"…accessiBe instructs and teaches its customers how to use its tool to infringe [on the relevant patent]… accessiBe has actively induced others to infringe [on the related patents] by marketing and selling to its customers …its infringing web accessibility tool, knowing and intending that its customers use it in a manner that infringes [on the related patents]"

In other words, AudioEye is alleging that all the users of the accessiBe tool are actively infringing on its patents – not just accessiBe.

Aggressive IP enforcement and AudioEye’s strategy

To understand how important intellectual property enforcement is to AudioEye, read the most recent copy of their S1 – the securities registration form for the company. Sections 12 and 31 highlight the competitive importance they place on the patents and their willingness to protect their IP rights. The strategy outlined in the filing is consistent with that outlined in the most recent annual report:

We expect an increase in the number of third parties who could violate our patents as the market develops new uses of similar products... We foresee the potential need to enter into active litigation to defend and enforce our patents. We anticipate that these legal proceedings could continue for several years and may require significant expenditures for legal fees and other expenses.

What are the relevant patents in question?

• Patent No. 10,423,709 entitled “Systems, Devices, and Methods for Automated and Programmatic Creation and Deployment of Remediations to Non-Compliant Web Pages or User Interfaces” that was issued on September 24, 2019.
• A good chunk of the infringement claims centers around "Claim 19" of this patent which describes a set of steps for applying a standard fix for non-compliance across a variety of pages.
• Patent No. 10,444,934 entitled “Modular Systems and Methods for Selectively Enabling Cloud-Based Assistive Technologies” that was issued on October 15, 2019.
• These Claims cover what every single overlay or widget does in adding alternative text to images. They find images without alternative text—either in the context of a link or standalone—call up the server, ask for a fix, and then apply it to the page.
• Patent No. 10,762,280 entitled “Systems, Devices, and Methods for Facilitating Website Remediation and Promoting Assistive Technologies” that was issued on September 1, 2020.
• Claims 1 and 15 are quite a broad claim related to using JavaScript to fix web accessibility issues on a page, whereas Claim 19 is using the JavaScript across multiple pages to fix similar types of issues.

The Bottom Line

It's a well-discussed fact that overlays do not result in ADA compliance. Now, you throw into the mix an intellectual property dispute with a company that has articulated a core business strategy of defending their intellectual property. If you have or were thinking of deploying an accessibility overlay solution, a significant risk has now been introduced into the process. The bottom line is this: Level Access strongly discourages relying on any overlay solution for digital accessibility.