Last Wednesday, a Massachusetts superior court judge deemed Girard too dangerous to be released and ordered him held until his probable cause hearing on March 15. According to police reports, Girard recently told his wife: "It's fine to shoot people in the head because traitors deserve it," and "Don't talk to people, shoot them instead." (His wife reported concerns about his increasingly paranoid behavior to authorities the day before he was arrested.) For Girard, those "traitors" may have included most members of Congress; news blog TPM Muckraker notes that Girard has been an active poster in far-right Internet forums for the past month.
In 2007, Girard's patent was the basis of an infringement suit that his holding company, ESN, filed against Cisco Systems. For ESN, it was a hugely important suit; one of ESN's lawyers later testified that his client was seeking "potentially hundreds of millions of dollars" from an East Texas patent win against Cisco.
ESN v. Cisco, meanwhile, was thrown out of an East Texas court in late December 2009, when federal district court Judge David Folsom ruled that the patent was actually owned by Girard's former employer, a small telecom company called Iperia. Last month, ESN's lawyers at the McAndrews Held firm filed a notice that they will appeal Judge Folsom's dismissal of the suit. (McAndrews Held is also the firm that prosecuted Girard's patent application; it is handling the case against Cisco on contingency.)
Despite the sideshow of the Patent Troll Tracker blog posts and the libel suits, Verhoeven's strategy for winning the case for Cisco focused on the facts surrounding the assignment of Girard's patent. He discovered that Girard had signed an employment agreement, which included an invention-assignment clause, before starting work at Iperia, the telecom company that employed him in April 2001. That's when Girard filed a provisional patent application, which ultimately became the '059 patent.
With evidence in hand that Iperia, rather than Girard, owned the rights to the '059 patent, Cisco negotiated to purchase the patent for $500,000--which included a $200,000 "kicker" if the purchase ultimately held up in court. Iperia's former CEO, who is a friend of Girard, filed a declaration stating that he was fine with Girard's patenting activity and that it wasn't covered by the employment agreement. But Judge Folsom disagreed, finding that Girard's invention was in an area of technology quite similar to Iperia's. Any oral agreement between Girard and Iperia's CEO was ultimately less important than Girard's written agreement to give Iperia rights to his inventions, he ruled. (Here is Judge Folsom's order.)
"This is something defendants should be looking at in every NPE case," said Verhoeven, using the acronym for "non-practicing entity," a euphemism for patent troll-style companies. "Often, the patents have been transferred not once, but two or three times. There's a risk that those transfers haven't been done appropriately."
Give Girard a break. It's tough to double-check all your documents and build a weapons stockpile at the same time.
Photo: Manchester Police Department