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Scott Harris asked for a hearing next Tuesday on his motion to force a speedy deposition out of Patent Troll Tracker blogger Rick Frenkel.
Not gonna happen. The judge ruled today that "an expedited hearing is not necessary." Harris' motion will get a hearing on May 13 in San Jose district court.
Scott C. Harris was fired from Fish & Richardson shortly after his patent on "Enhancing touch and feel on the Internet" was used to reach out and touch Google, a firm client.
That erupted into a web of allegations between Harris, his former firm, Harris’ lawyers at Niro Scavone—and now Patent Troll Tracker blogger and Cisco IP director Rick Frenkel. Now L' Affaire Harris continues in the good old Northern District.
Last week, lawyers from the Niro firm filed a motion in a San Jose federal court to compel Frenkel’s deposition. I only saw it this morning, and put off posting on it to finish another story; of course, I was promptly scooped by my friend John Letzing at Marketwatch.
Harris’ lawyers want to depose Frenkel this month; can’t wait, they say. Frenkel and Cisco have responded with a motion to quash the subpoena. Niro, of course, is Frenkel’s most well-known adversary; he offered a $5,000 bounty for Troll Tracker’s identity and upped it to more than $10,000. (Niro has said the bounty went uncollected; he doesn’t know who outed Frenkel).
The full petition to depose Frenkel is not online, although a request to speed up the process is.
"Richard Frenkel, in his blog, Patent Troll Tracker, promoted Fish’s ownership claims, creating doubt among potential licensees and boosting Fish’s claims to ownership of the Harris patents."
"Frenkel, as the Director of Intellectual Property at Cisco Systems, has a clear association with Fish & Richardson ("Fish") and its attorneys. In fact, Fish has represented Cisco in several law suits such as Cisco Systems Inc. et al. v. GPNE Corp., Case No.1:07-cv-00671. In addition to the professional relationship with Fish as in house counsel for Cisco Systems, Frenkel has maintained a professional relationship with Kathi Lutton, the head of the firm's Global Litigation Practice. Mr. Frenkel participated with Kathi Lutton and John Dragseth (another Fish attorney) in a webinar on May 30, entitled KSR, Managing Intellectual Property. Given this association between Fish and Frenkel, it appears that Frenkel was acting at Fish’s behest to interfere with ICR’s ability to license its patent portfolio. Frenkel may be Fish’s agent or may simply be acting at Fish’s direction. ICR is entitled to know the extent of the relationship and common interest between Fish and Frenkel, because it directly impacts Fish’s tortious interference with ICR’s licensing activity.
In a September blog post, Frenkel had asked whether Harris was the "mastermind" behind these lawsuits—an allegation that Fish made explicitly, saying Harris targeted firm clients like Google and Dell for patent infringement lawsuits, a "stunning" betrayal by a top lawyer. Harris won't say whether he has any financial interest in the Illinois Computer Research v. Google litigation (07-cv-05081, N.D. Illinois).
In all, Frenkel wrote the Troll Tracker blog for nine months until he revealed himself; then he was sued by two Texas lawyers, one of whom may have been after him for some time.
Speaking of that lawsuit, the Johnny Ward Jr. defamation suit against Cisco and Frenkel has moved into an Arkansas federal court. Cisco and Frenkel are asking to transfer it, oddly enough, to the Eastern District of Texas.
Documents:
Illustration from the IP Law & Business print edition, courtesy Matt Faulkner.
What kind of business methods can become "property?"
Patent lawyers will fight that one out in May at the U.S. Court of
Appeals for the Federal Circuit. Amicus briefs are due shortly: over
the next week, we can expect a barrage of legal briefs regarding In re Bilski; or more completely, In re Bernard L. Bilski and Rand A. Warsaw. The patent case is likely to have a big impact on business method and software patents; the case is being closely watched by the patent bar and has garnered some mainstream press coverage as well.
A very different debate over business methods and intellectual
property is going on in St. Paul, Minnesota, but Bilski and his co-inventor Warsaw are at the heart of that one, too. Investigators at the Minnesota
Attorney General's office say that WeatherWise USA,
the company they co-founded in 1996, devised billing programs that helped two local energy companies dodge state regulators and overcharge
consumers by $33 million.
The full story is published in the April issue of IP Law & Business.
On this blog, I'll write a few "Behind Bilski" posts to take a more in-depth look at the people and organizations that have a stake in the Bilski case.
Today: The view from Minnesota, and that state's connection to WeatherWise.
In February 2007, Minnesota Attorney General Lori Swanson filed a complaint at the state's Public Utilities Commission
against Xcel Energy and CenterPoint Energy, which both have contracts
with WeatherWise to provide fixed-price billing programs for natural
gas customers. (OAG Complaint)
State attorneys say WeatherWise set the rates in both programs, severely
overcharging consumers through programs that were marketed and promoted
in a misleading way. One customer saw her gas bill jump from 79 cents to $4.18 per day after joining Xcel's program, and wasn't allowed to cancel; an 88-year-old fixed income Xcel customer had a July gas bill of $221, or $7.13 per day, and wasn't allowed to get out of the program until "after she passed away. (see OAG complaint, pgs. 4-7)
According to the PUC, WeatherWise provided marketing assistance to both companies, helping to set up the call centers that enrolled customers and assisting with promotional materials. However, WeatherWise is not a named party in the PUC complaint; state utility regulators have no authority over them.
Lawyers at Attorney General Swanson's office declined to comment on the ongoing investigation. In October, Xcel Energy was ordered to hand over tape recordings of conversations between fixed-bill customers and a call center apparently operated by "WeatherWise or its agents." (OAG 8/21/07 comments, p. 14)
The energy companies are admittedly ignorant about WeatherWise's methodology, which the company keeps secret. “The
Commission should not permit the underlying mechanisms of these
programs to remain shrouded in secrecy," wrote Swanson. "If the
programs cannot be operated with transparency, they should not operate
at all.” (OAG Complaint, p. 14)
According to the A-G's complaint:
The $26 million over-charge cited in the original complaint didn't include Xcel's overcharge of about $7 million; hence the $33 million total. (PUC Staff brief, May 2007)
The PUC ordered the programs shut down in July. (PUC order, 7/16/07)
WeatherWise CEO Rand Warsaw says the high charges were the result of a
streak of mild weather, and the company has done nothing wrong. Energy
company clients are able to audit WeatherWise’s data, and they’ve
handed over everything the A-G has asked for. “Every dime of our
transactions are accountable and explainable by weather and price,” he
told me in a recent interview. “All of this has been explained in
Minnesota. There is no data that we have not made available.”
Warsaw wrote to the PUC chairman in July 2007 promising cooperation, but did worry that “any disclosure of our methods or modeling information to the public could diminish some or all of the value of our intellectual property.” (Warsaw's letter)
State attorneys saw it differently. Swanson said WeatherWise “knew full well it was a focus of the investigation, [and] a major reason for delay, and that the OAG would be in contact with WeatherWise to receive more data.” (Footnote, pgs. 6-7, A-G's 8/21/07 comments)
Consumer advocates say letting an out-of-state private company set rates allowed energy companies to profit while dodging state regulators.
“It really made rate-making a secret process for this little group of
people,” said Chris Duffrin, Assistant Director of Minnesota’s Energy CENTS Coalition.
“WeatherWise sets an inflated amount of usage, to make sure that the
gas company doesn’t lose money. It’s a premium program, but they don’t
really market it that way—that’s part of the problem.”
The Public Utilities Commission meets this Thursday, April 3, to review the status of the investigations.
More on the case:
