The Prior Art

Troll Tracker lays low; Cisco puts the kibosh on anonymous blogging but stands by their man; I hang with Ninjas

It might have been the most predictable schedule change in the history of legal conferences, but I allowed myself some faint hope that my Thursday trek out to Fisherman's Wharf would allow me to meet the elusive Patent Troll Tracker.

But the Tracker, a.k.a. Rick Frenkel of Cisco System, was not about to show up to this Patent Strategies conference where he had long been schedule to speak on the topic of “Exploring the Current Status of Patent Trolls: Myth, Reality, or Legend?”

“Since he’s been unearthed as the Patent Troll Tracker, he’s been laying low lately,” said the panel's moderator. The room chuckles lightly. Indeed.

The background: shortly after Frenkel revealed himself on Feb. 23, he was hit with defamation lawsuits from two East Texas lawyers, one of whom appears to have been been in pursuit of Frenkel since November.

This week, we've got more news.

First, new maneuvers from the PTT-tracked: Local press reports that both of those lawsuits were moved out of Gregg County, Texas, and into federal courts. One in E.D. Texas and one in Arkansas. Earlier ALM coverage of the lawsuits is here, free registration required. Both lawsuits name Frenkel's employer Cisco as well as the blogger himself.

The Tracker's boss speaketh: Cisco announced Monday that it has changed its corporate blogging policy in response to the Troll Tracker controversy, banning employees from anonymous blogging about issues they “have responsibilities for at Cisco.”

The company noted that “a few Cisco employees used poor judgment” by helping Frenkel and pitching his blog to others. But overall, it’s a pretty tame reaction. Cisco moved quickly to distance itself from Frenkel’s short-lived comment about the “Banana Republic of East Texas,” but all in all, the company isn't exactly throwing him under the bus. (There's no separate lawyers yet in the defamation suits.)

And the Tracker's peers weigh in: Patently-O author Dennis Crouch commends Cisco’s response and ruminates on the tensions of anonymous blogging. (link)

I'm still ruminating. High-powered blogging of the sort Frenkel was engaged in raises big questions about journalism in the age of participatory media. Reading an anonymous blog is kind of like seeing graffiti on a wall, even if it's clearly the work of a gifted researcher. At a conference last year I explained my confusion about how to approach reporting on the blog to a lawyer-blogger in attendance. For all I knew, I said, the author of Troll Tracker could be a congressional staffer trying to push forward the patent legislation. "Sure, he could be chief patent counsel at Microsoft," said the lawyer, laughing. (he was a  pro-patent-reform techie guy who was a fan of Frenkel's blog.)

That suggestion seemed a bit over-the-top, but the truth turned out to be not so many steps away from that. Frenkel is a director of IP at Cisco. Corporate hierarchies much larger than my own tend to confuse me so I won't try to guess what Frenkel was directing while he was writing. (I did notice that he was a prolific writer, though; his opponents noticed that too, and it fueled their suspicion that Troll Tracker was a team effort.)

In the legal press, we're mainly concerned that less firey blogs might "Kill the Joy." Cisco's new policy inspired CNET to examine whether corporate employee blogs are a "lawsuit waiting to happen," and a new Troll Tracker story in Business Week, (via Patently-O), takes a broad look at how corporate blogging policies are evolving. This passage stuck me:

Cisco General Counsel Mark Chandler even cited the blog as a good independent source of information while in Washington lobbying for changes to patent law that would rein in trolls, unaware he was plugging the work of a Cisco employee.

That kind of symbiosis will be a "gotcha" moment for Frenkel's patent-wielding opponents, including the folks he sometimes called 'trolls,' which were companies that make a business of holding patents and often suing to enforce them. Some of them argued all along that his blog was a corporate plot, stemming from a group of companies decrying "patent abuse," Its likely author, or team of authors, was seen as a well thought-out ploy by the tech heavyweights that some in the "patent community" had taken to calling the "infringement lobby."

Frenkel has stayed silent for the time being. Interview requests from various ALM reporters were forwarded on to a Cisco spokesperson, and as I said, he wasn’t around on Thursday. The debate at the panel was muted, and the post-event chatter was about next week’s OceanTomo IP auction. (If the Troll Tracker shut-down means you haven’t had been getting your proper weekly dose of anonymous patent action, come on by!)

I expect folks there from very different sides of the old "troll" debate. I hope you all feel welcome in our town, the city of St. Francis of Assisi. I don't know if St. Francis ever had much to say on trolls, but was a good friend of the animals and could probably prevent a patent fistfight or two. Apparently he once calmed a man-eating wolf, see above.

In between Troll Tracker posts, I pointed out my colleague Zusha Elinson’s piece on Howrey’s new “anti-troll” ad campaign. It’s become a real conversation topic; this morning I see that three weeks after publication, it’s still the second most popoular story on the Cal Law web site.

A final note, my first IPLB cover story, "Amateur Hour," is now available on our web site! Happy day. Registration is required but it's free. The story is about ninjas and lawyers and Web 2.0. Seriously. Ninjas. I have a bit more to write about the reporting of that story, and I'll make a post on it over the weekend.

Ward Jr. may have pursued Troll Tracker for months

Following up on the recent demise of the popular and controversial Troll Tracker blog: I've read T. John Ward, Jr.'s defamation complaint (link) against Patent Troll Tracker, thanks to Patently-O and the Zura 271 blog. Readers should note that it's an amended complaint. According to the case docket in Gregg County District Court (link), the case was originally filed as John Ward, Jr. v. John Doe et al. on Nov. 7, 2007, as a petition to depose someone at Google. I'm guessing that the goal was to discover Troll Tracker's identity. (Google hosted the anonymous blog.) Since then:

Jan. 24: Petition to depose granted.

Feb. 23: Troll Tracker reveals himself as Rick Frenkel, an IP director at Cisco Systems.

Feb. 27: Ward Jr. filed an amended complaint claiming defamation against Cisco and Frenkel.

March 3: Eric Albritton files a separate complaint against Cisco and Frenkel. I have not seen this one. (link to docket)

The two posts Ward objects to are dated Oct. 17 and Oct. 18 of last year; those posts are printed out and attached to the end of his complaint. If those printouts are accurate, Frenkel edited the language of his Oct. 18 post at some point, and acknowledged doing so; the language in the Ward Jr. complaint differs from my version, which I saved on Feb. 25, 2008.

The first two paragraphs of the Oct. 18 are the same in both the complaint and my copy:

I got a couple of anonymous emails this morning, pointing out that the docket in ESN v. Cisco (the Texas docket, not the Connecticut docket), had been altered. One email suggested that ESN’s local counsel called the EDTX court clerk, and convinced him/her to change the docket to reflect an October 16 filing date, rather than the October 15 filing date. I checked, and sure enough, that’s exactly what happened – the docket was altered to reflect an October 16 filing date and the complaint was altered to change the filing date stamp from October 15 to October 16. Only the EDTX Court Clerk could have made such changes.

Of course, there are a couple of flaws in this conspiracy. First, ESN counsel Eric Albritton signed the Civil Cover Sheet stating that the complaint had been filed on October 15. Second, there’s tons of proof that ESN filed on October 15. Heck, Dennis Crouch may be subpoenaed as a witness!

Here's the end of the Oct. 18 post per the Ward complaint (emphasis mine):

You can’t change history, and it’s outrageous that the Eastern District of Texas may have, wittingly or unwittingly, helped a non-practicing entity to try to manufacture subject matter jurisdiction. This is yet another example of the abusive nature of litigating patent cases in the Banana Republic of East Texas.

(n.b.: don’t be surprised if the docket changes back once the higher-ups in the Court get wind of this, making this post completely irrelevant).

And here's the end of my version (emphases mine):

You can’t change history, and it’s outrageous that the Eastern District of Texas may have, wittingly or unwittingly, helped a non-practicing entity to try to manufacture subject matter jurisdiction. Even if this was a "mistake," which I can't see how it could be, given that someone emailed me a printout of the docket from Monday showing the case, the proper course of action should be a motion to correct the docket.

(n.b.: don’t be surprised if the docket changes back once the higher-ups in the Court get wind of this, making this post completely irrelevant).

EDIT: You can't change history, but you can change a blog entry based on information emailed to you from a helpful reader.

So it looks like he got some more evidence and scaled down the tone a notch. Either way, it hardly sounds defamatory to me.

For the Oct. 17 Troll Tracker post, the version in the lawsuit matches my version exactly. You can read the relevant parts of that in my earlier post about Troll Tracker's demise, and Cisco's response.

Patently-O has links to other coverage, and the clearest description of the events at issue in the Ward v. Frenkel lawsuit, which involves the filing date of the ESN v. Cisco lawsuit. (link) If this is defamation... I don't even know where to begin. Ward files patent infringement lawsuits one minute after the stroke of midnight, and then sues when people think he filed a day too early? Obviously, this could have been cleared up without a lawsuit, but Ward Jr. hasn't been too communicative (he's never returned my calls, including one yesterday afternoon). The original complaint really was time-stamped 10/15, as noted on Patently-O, which would mean Ward's patent gun was shooting blanks.

Will the IP bar split over 'patent trolls?'

File under interesting timing: the lawsuit against Troll Tracker was reported the same day my colleague Zusha Elinson reports on Howrey's new advertisement urging clients not to support law firms that litigate for "patent trolls," which they call a "scourge on legitimate businesses everywhere." (article is here, free registration required)

I've had off-the-record conversations with folks at various firms about their opinions on taking work for patent-holding companies. Some say their high-tech clients are pushing them to not do such work; others have said there's no such pressure.

Definitely worth reading. I doubt IP will ever be like product liability or personal injury litigation, since (most) big companies that defend against lots of little-guy patent suits still think of themselves as potential plaintiffs. But the issue looms: will the big firms continue to be able to "work both sides of the street," as Henry Bunsow puts it? Or are we seeing the development of a new, more clearly  defined plaintiffs' and defense bar? There's certainly a fissure of tension, and Howrey's ad isn't shy about sticking itself in there.

Troll Tracker sued: Judge Ward's son is the plaintiff

The Daily Journal's Tuesday edition (not linkable) reports that Troll Tracker author Rick Frenkel, and his employer Cisco, have been sued for defamation by two East Texas attorneys who are players in that district's patent litigation scene, Eric Albritton and T. John Ward, Jr.

T. John "Johnny" Ward, Jr. is a Texas lawyer who has filed a large number of patent infringement lawsuits in recent years. Between January and mid-October of 2007, his name was attached to 54 separate lawsuits by my count; in all but four, he represented the plaintiff. He is also, as I reported in October, the son of Judge T. John Ward, the judge who is largely responsible for making the Eastern District of Texas a hotspot for patent litigation.

I haven't yet read the complaints. But I did re-read a copy of the Oct. 17, 2007 post two October posts that apparently inspired the lawsuits. (that's a small assumption on my part--but it's one of only a few posts that mentions Cisco and the only one I know of that mentions both Cisco and Ward & Albritton, and Craig Anderson's DJ story says the post is from October.) The Oct. 17 post is titled "Troll Jumps the Gun, Sues Cisco Too Early," and alleges that Ward & Albritton filed an amended complaint solely to change the filing date on a lawsuit where Cisco was a defendant.

The 10/17/08 Troll Tracker post begins:

Well, I knew the day would come. I'm getting my troll news from Dennis Crouch now. According to Dennis, a company called ESN sued Cisco for patent infringement on October 15th, while the patent did not issue until October 16th. I looked, and ESN appears to be a shell entity managed by the President and CEO of DirectAdvice, an online financial website. And, yes, he's a lawyer. He clerked for a federal judge in Connecticut, and was an attorney at Day, Berry & Howard. Now he's suing Cisco on behalf of a non-practicing entity.

I asked myself, can ESN do this? I would think that the court would lack subject matter jurisdiction, since ESN owned no property right at the time of the lawsuit, and the passage of time should not cure that. And, in fact, I was right:

(he goes on..)

Of course, Frenkel works for Cisco, as we now all know. So it's unlikely that he was actually, as he says, "getting [his] troll news from Dennis Crouch now." I'd guess he was well aware of the ESN lawsuit. Still, he was careful to write about it after Patently-O author Crouch, who reported the same basic facts: that the ESN v. Cisco patent infringement lawsuit was filed on 10/15/2007, a day before the patent in question was actually issued, thus "jumping the gun." Crouch didn't mention the amended complaint, which hadn't yet been filed.

In this subsequent motion, Ward and Albritton say they filed the ESN v. Cisco lawsuit at 12:01am Central Time on 10/16, and that Cisco filed suit in Connecticut ten and a half hours later, at 11:32am EST 10/16. They insisted the case should be kept in Texas. , but then apparently changed their minds--they stipulated to dismissal on Nov. 2.

The PACER entry does list 10/15/07 as the date he lawsuit was filed, but the first document--the complaint--is listed as being filed on 10/16.

Back to the Troll Tracker 10/17 post:

One other interesting tidbit: Cisco appeared to pick up on this, very quickly. Cisco filed a declaratory judgment action (in Connecticut) yesterday, the day after ESN filed its null complaint. Since Cisco's lawsuit was filed after the patent issued, it should stick in Connecticut.

Perhaps realizing their fatal flaw (as a couple of other bloggers/news items have pointed out), ESN (represented by Chicago firm McAndrews Held & Malloy and local counsel Eric Albritton and T. Johnny Ward) filed an amended complaint in Texarkana today - amending to change absolutely nothing at all, by the way, except the filing date of the complaint. Survey says? XXXXXX (insert "Family Feud" sound here). Sorry, ESN. You're on your way to New Haven. Wonder how Johnny Ward will play there?

And how will a Silicon Valley lawyer who referred to East Texas as a "Banana Republic" play in Longview? Albritton and Ward Jr. have probably hauled enough Californians into court to know the answer to that one.

UPDATE: A Cisco spokesperson asked me to add their statement on this issue:

"The parties have mutually agreed to make no comment  on the lawsuit in question at this time. That said, we would like to  underscore that the comments made in the employee's personal blog represented  his own opinions and several of his comments are not consistent with Cisco's views. We continue to have high regard for the judiciary of the Eastern  District of Texas and confidence in the integrity of its  judges."

I should also add that the only place I have seen the "Banana Republic" comment thus far is in today's Daily Journal. Craig Anderson writes: "In the October posts at issue in the complaints, Frenkel accused the court of conspiring with the company, on whose behalf the Texas lawyers had filed the patent infringement lawsuit at issue, and referred to the court as 'the Banana Republic of East Texas.'"

It does not appear in my version of the TT posts, which were saved on Feb. 25. But there is a notation that indicates the October 18 post was edited later. I may post up relevant portions of other posts at a later date, but I'm going to hold off until I'm clear on what the accusations are.

UPDATE again:  This post has gotten a lot of attention. (Can't read Troll Tracker, work sucks, what're you going to do?) I'll write more on this soon. Meanwhile my colleague Zusha Elinson at The Recorder has a bit more on Cisco and Troll Tracker here.

SF Weekly must pay Bay Guardian $15.6 million

The newsroom here is abuzz that the  San Francisco Bay Guardian just won a jaw-dropping $15.6 million in its unfair competition lawsuit against the local SF Weekly. That's far higher than the damages suggested by the Guardian's own expert, who set a range at $4-$11 million. Village Voice/New Times editor Mike Lacey says he will appeal.

I saw a small piece of the closing arguments last week and it was fascinating. The Weekly's closing argument was a crash course in the sad economics of Bay Area newspapering since 2001.

For now I'm far too busy on other projects to pay attention now, but I'll get some of my observations on this later tonight.

The two newspapers have both maintained blogs about the trial (SF Weekly here, SFBG here.)