Vibrating Hardware Wars

Which came first, pierced or strapped?

That's the agitating question facing a federal judge in Houston in a contentious patent infringement lawsuit that will determine which oral pleasure product – "The Tiggler" or the "Tongue Joy" – came first, and which inventor – Eric Klein or JJK Industries LP – will enjoy the spoils of any continuing, tongue- (or groin-) tingling success.

To Silicon Valley software engineer and inventor Eric Klein the answer is simple: He should be allowed to retain his patent for the Tiggler and, moreover, should prevail in his defamation counterclaim against Austin-based JJK Industries, whose principals, he alleges, handed out a letter to attendees at a Las Vegas adult products convention that described Klein as a liar and a thief. Klein says he doesn't really know why JJK Industries filed suit against him – as far as he is concerned, the two products can easily coexist in the marketplace. He's got a point. Klein's product, the Tiggler, which retails for $31, is a small barbell-shaped vibrator designed to fit into a pierced tongue. JJK's Tongue Joy ($49) is designed to strap on to a nonpierced tongue. Klein says his products are sold mostly in body-piercing shops, while JJK's Tongue Joy is sold mainly in adult-toy stores.

The question of who will reign supreme as the King of Oral Vibrators may turn on who was first to invent the product. "We both applied for a patent – I applied a little earlier, but they believe they invented it earlier," said Klein. U.S. patent rights are determined by when an idea was conceived, not when it was patented. "Everywhere else in the world it's who is first to file," Klein said. "It's a hugely complex legal proceeding."

And the case of Tongue Joy vs. the Tiggler is also a hugely contentious one. Since the case was filed, in June 2002, the proceedings have reverberated into a host of additional allegations. Klein's attorneys contend that JJK's Houston attorney Charles Rogers stalled on releasing discovery materials, has violated a protective order, and is attempting to obtain other information about Klein's business in order to steal his customers. Klein also claims Rogers' involvement in the case represents a conflict of interest, because he is the attorney that drafted Tongue Joy's patent application – making Rogers a witness – and because Rogers owns an interest in JJK Industries, meaning Rogers also has a material interest in the outcome of the case and potentially an interest in whatever confidential business documents Klein may produce.

Rogers declined to comment for this story but did supply some documents. None addressed Klein's allegations regarding Rogers' business interests, and an additional request for information went unanswered. Rogers did say that Klein has "made up" names of people who are somehow involved in the case and has lied about the extent to which his business may have been harmed by the Las Vegas convention letter.

Last month the case took a tabloid twist, when Rogers and Klein's San Francisco attorney Stephen Schmid got into a shoving match during a deposition, ending with Schmid calling SF police to report that Rogers had "assaulted and battered" him. According to Klein, the scuffle went like this: "There was a notebook I had, which, under discovery, I had to show them," he said. However, after Schmid had offered the notebook to Rogers, Klein said he realized that there were three pages with notes and information on an unrelated invention that he didn't want Rogers to see. Schmid approached Rogers asking for the notebook and a shoving match ensued, during which Schmid said Rogers scratched him and Rogers said Schmid knocked him over into the court reporter – who, incidentally, recorded the entire exchange. "[There's] one document we want to hold back 'til we get a stipulation on it," Schmid said before attempting to retrieve the notebook. "I'll get that."

"Now, hold on," Rogers replied. "I have possession of the documents that you've given me, so please step away from me. Step away from me – listen, get away from me."

Then: "I'm going to arrest you for assault and battery," Schmid said.

"Get away from me. Get away from me," Rogers continued. "Step to the other side of the table."

"I'm calling 911 right now," Schmid said, and then did so.

Each side contends the other was the aggressor in the deposition dustup, and the ugliness rages on.

Klein said that in order to secure Texas jurisdiction for the case, Rogers asked the brother of his college roommate to purchase a Tiggler over the Internet – ostensibly to make a liar out of Klein, who, Rogers wrote in a court filing, said his company did not sell his "infringing products" in Texas. Klein thinks the move was intended to force him to fight a costly cross-country battle. "They wanted to take over our product," he said, "and I feel like they wanted to make it so expensive that we'll fold and they can just take over." In turn, Klein is challenging JJK's legal standing, alleging that JJK's very existence is a violation of Texas state laws regarding obscenity, which make it illegal to peddle "obscene devices" used "primarily for the stimulation of human genital organs" – as well as those forbidding organized crime – defined, in this instance, as conspiring in the "wholesale promotion or possession" of an "obscene device."

The case of the dueling vibrators is scheduled for trial before U.S. District Judge Vanessa Gilmore in September. Until then, Klein says, he just wants to get on with his business, marketing the Tiggler and a new vibrating finger ring (patent pending). "I would settle in a millisecond and go back to the way things were," he concluded. "You do your thing, and I do mine."