The Prior Art

Johnny Ward and Eric Albritton on Troll Tracker blog: "Let's get this shut down."

Plaintiffs T. John "Johnny" Ward Jr. and Eric Albritton took the stand in the closing days of this week’s closely watched Troll Tracker defamation trial, with Albritton tearfully telling the jury that two posts published by blogger—and ex-Cisco Systems lawyer—Rick Frenkel in October 2007 had "hurt" and "humiliated" him, while Ward described his strong and straightforward response to the offending posts as: "Let's get this shut down."

Ward took legal action the following month, seeking to depose Google officials to determine the identity of the then-anonymous patent blogger. Once Frenkel was identified as the Patent Troll Tracker several months later, both Ward and Albritton sued Frenkel and Cisco for defamation.

Ward and Albritton say Frenkel's posts, about changing a date on official court documents, were defamatory because they accused the two Texas lawyers of committing a crime.  Lawyers for Frenkel and Cisco maintain that the posts contain no such accusations, and are a mix of true facts and legally protected opinion.

Rick Frenkel takes the stand in Troll Tracker defamation lawsuit

Former patent blogger Rick Frenkel took the stand in the federal courthouse in Tyler, Texas, on Wednesday, and apologized for referring to the Eastern District of Texas as a "Banana Republic" in a post he published as the "Patent Troll Tracker." But Frenkel insisted his blogging about a patent infringement suit against his then-employer, Cisco Systems, was not defamatory.

"You know, I think I was outraged over a situation ... and I used words that were strong," said Frenkel. "But I sure didn't mean to hurt anyone by it." Frenkel apologized for using the phrase, and noted that he took it off the blog after 24 hours. In October of 2007, about 500 people per day were accessing the Troll Tracker blog, he added.

At issue in the case are two particular Troll Tracker posts, dated Oct. 17 and 18, 2007. Plaintiff Eric Albritton claims the posts accused him of a crime by alleging that he "conspired" with a courthouse clerk in the plaintiffs-friendly Eastern District of Texas to change a critical date on a docket in an infringement suit he filed against Cisco. For his part, Frenkel says he was outraged that the change was made without a motion being filed.

Troll Tracker defamation case goes to trial -- opening statements heard

A hot, muggy, Southern rainstorm came down in short squalls in Tyler, Texas, Monday morning, drenching the city’s central square just as jury selection got underway in the Patent Troll Tracker defamation case, being argued in the federal courthouse here.

The Prior Art blog is reporting from the trial over the next several days.

We’ve covered the background and development of Albritton v. Cisco Systems, a case brought by lawyer and east Texas patent litigation player Eric Albritton against Rick Frenkel and his former employer Cisco Systems, alleging that in the course of Frenkel's brief and anonymous blogging career, he libeled Albritton.

(Earlier TPA coverage of Albritton v. Cisco and Ward v. Cisco: Troll Tracker sued, 3/11/20008; Judge Ward's Son may have pursued Troll Tracker for months, 3/12/2008; Frenkel, Cisco to fight defamation suits in East Texas, 5/27/2008; Troll Tracker blogger Rick Frenkel moves to Wilson Sonsini, 8/4/2008; Troll Tracker defamation update, 11/7/2008; Cisco says Frenkel told the truth, 12/9/2008.)

More recently, sibling publication Texas Lawyer just published an overview of the facts of the case here.

Patently Competitive

Gene Quinn, a lawyer who writes the IP Watchdog blog, is running a contest to rank the most popular patent blogs. Patently-O is killing everyone else, no surprise. 

While I'm happy to be included, I do consider The Prior Art Blog pretty different from the other competitors. Just eyeballing the list, they're nearly all written by patent lawyers and are generally on the legal analysis side of things, rather than the journalism side.

Having said that, I will now suggest, high-school-election style, that readers who enjoy this blog "Vote for Me!" There are two questions: 1) what's your favorite patent blog? and 2) which do you regularly read? The second question allows for multiple votes. You can also check the results so far.

This also reminds me that I have some TPA blog readers that don't necessarily check the IPLB website, and vice versa. Read whatever you enjoy, but for clarity's sake I will note that while my Patent Litigation Weekly column is always cross-posted on both the TPA blog and IPLB.com, other material, some material is only on one or the other.

Because of that, I'm going to be more conscientious about making at least a brief mention here when my work appears on IPLB.com. For example, IPLB.com recently covered closing arguments in the San Francisco RealDVD trial, as well as the cover story from our last print issue, about a Stanford HIV researcher in an unusual patent dispute.

Readers who want to keep up on everything at IPLB.com—which includes lots of IP content from our sibling publications—should check that site regularly or subscribe to its RSS feed.

Photo: J. Caldwell / Wikimedia

New law firm blog will focus on International Trade Commission

Oblon, Spivak, McClelland, Maier & Neustadt has created a new blog focused on IP cases at the International Trade Commission (ITC). Check out their ITC 337 Law Blog, authored by the firm's ITC practice co-chairs, Thomas Fisher and Barry Herman, along with senior associate Eric Schweibenz. I've already added it to my RSS reader—and I've already learned something useful from it, which I'll post about soon.

But first, kudos to Oblon, Spivak for starting this project, which I think is a great idea. I've just started digging into ITC cases in the last few months, and while it's nice that the ITC provides so many public documents without charge, the ITC website and search functions can be quite unwieldy for newcomers. It's a stark contrast to the sources available to get federal court documents, like Pacer, Justia, Stanford Law School's new IP Litigation Clearinghouse, and the many excellent blogs that cover federal courts. And while there's more IP and law blogs now than anyone could possibly keep up with, there is an information gap around the ITC, as noted in the blog's welcome message.

Posting ITC complaints and basic case information in a simple, sequential way, and making documents easy to download, would be a nice public service in and of itself. But it's clear that this blog has the potential to do more, and I'm sure will add a layer of real insight. The best legal blogs go beyond self-promotion to become a true public good, and I already see this project moving in that direction.

With so many law firms eager to drum up more ITC work, I'm sort of surprised this is the first ITC blog out there (at least, that I'm aware of.) But like the patent lawyers are fond of saying… it's all obvious in hindsight, right?

 

Troll Tracker update: Frenkel told the truth, says Cisco

On Friday, Cisco Systems unsealed its motion for summary judgment in the Albritton v. Cisco Systems defamation lawsuit, one of two libel lawsuits suits filed against ex-Troll Tracker blogger Rick Frenkel and his then-employer, Cisco.

There's a lot of information here, but the takeaway point is this: Cisco says Frenkel's articles were accurate. And in the United States, of course, you're allowed to publish true information, even if it hurts someone. What Albritton said was defamatory was either true (the docket was altered), or fell into the categories of opinion and rhetoric (words like "conspiracy") or just wasn't about him, says Cisco's lawyer, Charles Babcock of Jackson Walker.

Cisco also argues that Albritton's reputation wasn't injured at all by Frenkel's two articles, which involve a changed filing date in the ESN v. Cisco Systems lawsuit. As for co-defendants John Noh and Mallun Yen, the company  says they had no role writing, reviewing, editing, or publishing Frenkel's articles.

Troll Tracker defamation update: Cisco wants to see tax returns, evidence of 'mental anguish'

Next week, I'll be in Dallas at an IP law conference sponsored by the Center for American and International Law. After that, I'll have my first chance to visit the Eastern District of Texas. There are a couple patent trials going on in Marshall next week and I anticipate at least dropping in on both of them.

Before departing, I took some time to study up on some of my most-followed cases there. As regular readers know, former Patent Troll Tracker blogger Rick Frenkel was sued by two East Texas patent lawyers after his identity was revealed.

Not much has changed in these lawsuits. The parties in Ward v. Cisco are still fighting over venue, and in Albritton v. Cisco they're fighting discovery battles, but since I checked up on them anyhow I'll take a minute to update both cases.

I've covered the Patent Troll Tracker litigations several times before: see coverage from March 11, March 12, April, May, and August. Justia.com has dockets and documents for both cases: Ward v. Cisco Systems, et al. and Albritton v. Cisco Systems, et al. The cases are also summarized on the Citizen Media Law Project, a project affiliated with Harvard Law School. (Albritton, Ward)

Ward, Jr. v. Cisco Systems et al.

The plaintiff in this case is T. John Ward, Jr., son of the well-known federal judge T. John Ward. (at right) Ward Jr. is represented by Nicholas Patton, a Texarkana lawyer who has enforced the patents of WilmerHale patent lawyer Irah Donner, among many others.

Ward sued both Cisco and Rick Frenkel personally, agreed to drop Frenkel from the lawsuit, then asked the judge to go back on that after Frenkel asked for attorney's fees. On August 28, the judge dropped Frenkel from the lawsuit. Cisco Systems, Inc. is now the sole defendant.

The lawsuit is still pending in an Arkansas federal court. Cisco had asked to move this case to federal court in Tyler, Texas, where the Albritton lawsuit is pending, but the court denied that motion on Sept. 30.  [Order via Justia]

But now, Nick Patton is representing Eric Albritton (below) as well as John Ward Jr. In light of that change, Cisco has asked the judge to reconsider its motion to transfer to Tyler. Since both plaintiffs now have the same lawyer, Tyler is "clearly a more convenient forum," writes Cisco's lawyer. Discovery in the two cases will be "essentially identical" and keeping the Ward Jr. lawsuit in Texarkana "will subject witnesses and court resources to duplication."

"This is Cisco's third bite at the transfer apple," responded Ward Jr. this week. The interests of justice would not be served by a transfer to ED Tex, where Ward Jr.'s father is a sitting district court judge, notes Ward Jr., so moving the case there would be problematic: "Nothing about Mr. Patton's participation in the Albritton case alters the unique circumstances presented in this case." [Response, Nov. 3, via Justia]

Of the two, the Albritton case in Tyler is moving along much faster; discovery in that case is scheduled to close in just two weeks, which Ward Jr. argues is one more reason not to move the case. More on Albritton v. Cisco Systems, et al., below.

Albritton v. Cisco Systems et al.

In Tyler, discovery battles rage. In addition to Cisco, Rick Frenkel is still a named defendant, along with Cisco's chief patent counsel Mallun Yen and ex-PR guy John Noh. This case is moving along rapidly and is currently scheduled to go to trial in February.

Cisco has demanded that Albritton produce documents that would evidence the "mental anguish" he has claimed the Patent Troll Tracker caused him, including his medical records; and documents showing his damages, including balance sheets, income statements, and tax returns for 2002 through the present. Albritton says that's invasive and unnecessary; the judge has yet to rule.

In September, Cisco's lawyer made some not-surprising deposition requests, sending subpoenas to: someone who works in Albritton's law office, my soon-to-be co-panelist ED Tex lawyer-blogger Michael Smith, and witnesses who appear to be various court personnel in both Texarkana and Tyler. (Both Albritton and Ward allege that two October 2007 PTT posts related to the ESN v. Cisco Systems patent lawsuit were defamatory.)

In October, Albritton asked to depose four IP lawyers from Baker Botts' Dallas office, along with a paralegal in the same office. It's not clear to me what the connection of these lawyers to this case is; they're not involved with ESN v. Cisco. The subpoenaed Dallas lawyers are Steve Schortgen, Bart Showalter, Kurt Pankratz, and Kevin Meeks. Earlier, Albritton sent a subpoena to Dennis Crouch at Patently-O.

Cisco Systems asked to depose a few big players in the ED Tex patent litigation scene, most prominently, Sam Baxter of McKool Smith. (Baxter represents Cisco in the ESN lawsuit.) Also deposed were Michael Smith (again, I presume in his capacity as a blogger), Elizabeth DeRieux of Capshaw DeRieux (from Longview), Otis Carroll (Tyler), Danny Williams of Williams, Morgan & Amerson (Houston), and Louis Brucceleri, a lawyer based in Houston.

I would be interested in knowing the role of these folks in the case.

Hawk Attack

Gary Odom is an Oregon patent consultant who also blogs as Patent Hawk. Now he's sued his former client, Microsoft, in the Eastern District of Texas, saying the software company infringes his patent with its Office 2007 toolbar.

In the comment section of his four-line post, Odom writes that "Microsoft was a Patent Hawk client for years. They had every opportunity for friendly discussion. The words 'patent tax' were used, and Microsoft chose a path consistent with their corporate culture."

Odom's litigation spurred a sharp response from libertarian writer and attorney Stephen Kinsella, who wrote about the case on the Against Monopoly blog:

Patent Prospector implies that there's something wrong with viewing such a threat as a "tax". There's not. That's exactly what it is. Odom threatens his former client with severe financial damage by the state's thugs, and they call it a "tax." Hey, unfair! They are supposed to just pay their former attorney! ...

I think I just may start asking patent attorneys my company hires to include a little clause in the retainer agreement: "and we promise not to sue you, our client, for patent infringement in the future."

(On his website, Odom identifies himself as a consultant providing a variety of patent-related services, not an attorney; Kinsella's post was updated accordingly.) Odom is represented by Susman Godfrey, a Texas firm whose patent work is mostly on the plaintiff's side these days.

This via Patently-O, where Dennis Crouch notes that Office 2007 users "might check to see whether your Microsoft click-through license includes indemnification." Um... I actually don't know whether that's a joke or not.

Photo: Flickr/Major Clanger

East Texas lawyer subpoenas Google for more info about PTT and Patently-O blogs

Eric Albritton, an East Texas lawyer who sued Rick Frenkel after he was revealed to be the author of the Patent Troll Tracker blog, has subpoenaed Google for (a lot) more information about both the PTT blog and popular patent law blog Patently-O. [InformationWeek via Patently-O]

The subpoena [PDF] requests documents relating to Google's communications with Richard Frenkel, Patently-O blogger Dennis Crouch, Mallun Yen (Cisco's chief patent lawyer), John Noh (Cisco spokesman now at Brocade), and Mark Chandler (Cisco GC and vocal patent reform advocate). It also asks for "all documents referring or relating to the establishment, creation, maintenance and financial support for THE BLOGS." (that would be Patently-O and PTT.) Albritton also wants documents about searches for himself and the ESN, LCC v. Cisco Systems patent lawsuit that he worked on, the subject of two allegedly defamatory posts.

Another interesting note: this lawsuit, in the East Texas town of Tyler, is on its third judge. Both Judge Michael Schneider (never mentioned on the PTT blog, as far as I know) and Judge Leonard Davis (who was mentioned more than once on PTT, and had an unflattering anagram of his name published) removed themselves from the case without explanation. The case now sits with Judge Richard Schell, who has indicated he will keep it. 

Troll Tracker blogger Rick Frenkel moves to Wilson Sonsini

Former Patent Troll Tracker blogger Rick Frenkel has left Cisco Systems and moved to Wilson Sonsini Goodrich & Rosati, a top Silicon Valley law firm, where he is of counsel. Today is his first day at the firm.

"We were impressed with his breadth and depth of experience," said Michael Barclay, an IP litigation partner at Wilson Sonsini and a PTT reader, natch. "Rick has developed a lot of knowledge and insights about patent trolls that will be helpful to our clients who have to deal with them."

Barclay described the PTT defamation litigation as "a private matter" that had no influence on the hiring decision. Frenkel's bio is up on the Wilson Sonsini website. A Cisco Systems spokesman said the company doesn't generally comment on personnel matters, adding only: "Rick voluntarily left Cisco to pursue an opportunity with a prestigious Silicon Valley law firm. We wish him well in his new endeavors."

Frenkel started the anonymous PTT blog while he was an in-house attorney at Cisco; in February, he revealed his identity under duress, and was subsequently sued for defamation by two big players in the East Texas patent litigation scene, Eric Albritton and Johnny Ward Jr. The two lawsuits name both Cisco Systems and Frenkel personally as defendants; they started in state court but have since moved into federal courts in Arkansas and Texas.

In an e-mailed response, Frenkel had no comment on his move or the pending litigation, but did say that he has "no plans to return to blogging at this time." That's a contrast to four months ago, when Frenkel declared in a court filing that he "intend[s] to resume the publication in the near future, after taking time to attend to some of the legal matters that need my immediate attention."

UPDATE: In court documents, Cisco admits at least two other employees knew about the PTT blog, Zusha Elinson reports. One of them, like Frenkel, has left the company.

Photo courtesy of a friend of Rick Frenkel

Bloggers mock AP's "Quotation Licenses"

Cory Doctorow at BoingBoing has led an chorus of blogs in denouncing the AP's content licensing scheme, run by a company called iCopyright, which asks for payment for text snippets as short as five words, includes toughly worded copyright warnings, and has Terms of Use that seem to ban any criticism.

"Welcome to a world in which you won’t be able to effectively criticize the press, because you’ll be required to pay to quote as few as five words from what they publish," writes Doctorow.

I sympathize with these critics. Such restrictions, if enforced, would be intolerable. 

The price structure and terms of use was chosen by AP, while the "Honor Copyright" page (source of image at right) was authored by iCopyright, a copyright licensing company. It's not unusual for media companies to outsource the reprint side of their business; they're just not equipped to deal with it.

The AP's problem is that sometimes the headline is the whole story; the AP pays a lot of money to have a network of reporters so that someone is there when the bombs go off. It's looking for ways to get paid for that network in a declining market.

Sending takedown notices to bloggers who post 50-word quotes is not the right way to do that; the right to quote is a fundamental freedom, as I quoted Lawrence Lessig saying yesterday. But I can relate to the ambivalence of NYT Bits blogger Saul Hansell on this issue; like him, I'm both a reporter and a blogger. Like him, I'm concerned about the level of vitriol in the blogosphere about this issue, and I hope cooler heads prevail and seek a negotiated solution.

UPDATED: Post was updated to reflect some clarifications brought by an iCopyright employee (comment below). I speculated that iCopyright could have authored the Terms of Use, but those were chosen by AP. The publishers who work with iCopyright choose pricing, word intervals, terms of use, and other licensing options. Of the material I referenced, only the "Honor Copyright" page is authored by iCopyright.

 

The Associated Press v. The Quote

Last week, my former employer, The Associated Press, tried to erase seven quotations from the Internet, using copyright law. The noise since then has been remarkable.

The AP has acknowledged that its demand to remove seven short (33 to 79 words) quotes from The Drudge Retort blog was an overreach. But the news agency is standing by its basic argument, that copying of those lead sentences (or ledes as journalists sometimes write) is illegal and not fair use.

“Cutting and pasting a lot of content into a blog is not what we want to see,” Jim Kennedy, vice president of the AP and the blogosphere's new #1 enemy, told the New York Times. “It is more consistent with the spirit of the Internet to link to content so people can read the whole thing in context.”

Coincidentally, I spent all day on a plane today, and am now about halfway through Lawrence Lessig’s new book, "Remix." (I'm writing a review, to be published in a few months.) The book doesn't come out until October, but Lessig has a few passages on the freedom to quote that I think are apt here.

He writes:

Writing, in the traditional sense of words placed on paper, is the ultimate form of democratic activity, where, again, “democratic” doesn’t mean people vote, but instead means that everyone within a society has access to the means to write. We teach everyone to write—in theory, if not in practice. We understand quoting is an essential part of that writing. It would be impossible to construct and support that practice if permission were required every time a quote was made. The freedom to quote, and to build upon, the words of others is taken for granted by everyone who writes.

So what is the role of a quote in a world of hyperlinks? Quotes still matter because writing still matters; they are still fundamental to art, to journalism, and to freedom. To link is to point; to quote is to build an almost tangible connection between another’s ideas and your own. As the world’s largest news organization, the AP is essential to our democratic conversation. I am proud to have been an AP reporter, albeit for a short time, and I have many friends who work there, good reporters all. The organization’s recent skirmish with digital-age quotation is misguided; here's hoping it ends shortly and is not repeated.

 

Patent Troll Tracker and the Reporter's Privilege

In my previous post in this series, I wrote about how attorney Scott Harris' aborted attempt to subpoena Patent Troll Tracker blogger Rick Frenkel raised the question of "Who is a journalist?" in the digital age. To me, the PTT blog was a clear case of online journalism.

But there are actually three questions here:

1) Is Frenkel a reporter? 
2) Does he get a reporter's legal protections? 
3) Should he get a reporter's legal protections?

After thinking things over, I should clarify that I'm proposing to answer only the first question. The second question is a legal one that I'll leave to the lawyers; and the third is a philosophical and policy question that I honestly don't know the answer to.

1) Is Frenkel a reporter?

I think so. Journalism is the practice of finding, verifying, and publishing factual information, and nobody needs a license—or permission—to do it. Journalism can be combined with advocacy or partisanship, or it can avoid taking sides. In my view, the PTT blog was a great example of advocacy journalism.

2) Does Frenkel get a reporter's legal protections?

Very different question, and I don't know the answer. The attempt to subpoena Frenkel was dropped, so this won't be hashed out in San Jose. But even professional reporters like the SF Chronicle reporters who broke the baseball steroids story were not protected against a subpoena from a federal grand jury.

Civil subpoenas are a different matter, but the state of reporters' legal privileges is a moving target. Just two days ago, the Reporter's Committee for Freedom of the Press updated their report on the reporter's privilege in federal courts. California's Reporter Shield Law has been applied broadly by state courts; but in federal courts, any journalist's rights are uncertain.

"That's the most compelling argument for why you do need a federal shield law," says Thomas Burke, a media lawyer who teaches law and ethics at UC Berkeley's Graduate School of Journalism. "You can practice journalism online as a blogger, and you have no idea when you’re going to get to use the California shield law."  (disclosure: I was one of Burke's students years ago)

3) Should Frenkel get a reporter's legal protections?

The more I think about this one, the more complicated it gets. First, was Frenkel writing for Cisco or independently? His opponents say PTT was an ongoing corporate PR campaign; Cisco and Frenkel strenuously disagree, and say Frenkel was independent. Frenkel did share some positions with his employer; both have advocated for Congress to pass patent reform legislation (thus far, to no avail). And some Cisco employees did offer the blog up as suggested reading for professional reporters. But PTT was too raw and unchecked to have been a truly corporate project; it just wasn't that slick, frankly.

But leave Frenkel and Cisco aside for a moment. What if a corporation did openly sponsor its own news-reporting blog? If journalism is a practice, any company can choose to pay for journalism, advocacy or otherwise. But should the author of a corporate news blog get immunity from civil subpoenas?

What about Google's many corporate blogs? They regularly publish timely and newsworthy information; but because the information is entirely internal, it wouldn't seem to meet the "discipline of verification" described by Rosenstiel & Kovach.

What about non-profits like EFF? That group maintains a blog that reports heavily on EFF work, including original research on issues like the RIAA lawsuits.

What about Red Hat's magazine and blog? A writer there bemoaned the loss of PTT, calling it "a great blog that did most of my work for me." (emphasis mine)

These are looming issues for us all in the age of participatory media. The saga of the Patent Troll Tracker has shown they can't be avoided.

Other posts in this series:

• Part One: Scott Harris' lawyers drop Troll Tracker deposition demand
• Part Two: Troll Tracker speaks, and vows to return
• Part Three: Is the Patent Troll Tracker a reporter?

I'll write about new events in the defamation lawsuits against Frenkel and Cisco later this week, but I'll leave this four-part series as is, since it all relates to the PTT subpoena attempt and ensuing questions about who is a journalist.

Personal footnote: As a reporter myself, there are lots of issues I'd rather not express an opinion about; but when it comes to questions of journalistic ethics and practice, I think the discussion creates transparency and furthers the cause of balanced journalism. Since every major journalism organization has published ethics policies, every reporter's boss has a position even if the reporter doesn't; to claim total neutrality here would seem, to me, disingenuous.

Photo credit: The photo above comes from a friend of Frenkel who asked not to be named.

Patent Troll Tracker speaks—and vows to return.

Part Two: The life, death, and promised re-birth of the Patent Troll Tracker blog. In Rick Frenkel's own words.

This is a transcription of Frenkel's five-page declaration dated April 4, 2008, N.D. California case file 08-80075-JF.

Note his promise to return to blogging at No. 9.

(picture at left updated 5/14/08)

Declaration of Richard Frenkel in Support of Richard Frenkel's and Cisco Systems, Inc.'s Motions to Quash Subpoena and Motions for Protective Order

I, RICHARD FRENKEL, declare and state as follows:

1. I am an attorney and member of the California Bar since 1999, and am licensed to practice in California.

2. I have worked at Cisco since February 2006 as an attoney in the Intellectual Property Legal Department. As of April 2007, my full title became Director, Intellectual Property—Consumer & Emerging Technologies. Among my responsibilities since April 2007 has been oversight of certain patent litigation and other disputes involving the company, and management of employees doing the same.

3. On May 9, 2007, I began a news-oriented website called “Patent Troll Tracker.” My stated goal, in my first post, was “to educate the world on how many patent cases are out there that are filed by trolls.” I continued that education by providing regular news articles about cases filed by non-practicing entities colloquially known as “patent trolls.”

4. The Patent Troll Tracker website continued until late February 2008. During these nine months, I published over 180 articles about different facets of patent litigation and “patent trolls.”

5. Patent Troll Tracker was published regularly. For example, I had a monthly installment where I would review the patent litigation statistics from the previous month, and report on litigation filed by non-practicing entities. I call this by “Troll Call.” Besides the monthly feature, I would try to have an assortment of stories, about two or three per week, focusing on different interesting cases and the debate on patent reform issues.

6. Until earlier this year, I published the Patent Troll Tracker website anonymously. In September 2007, Chicago attorney Raymond P. Niro (“Niro”) contacted me, seeking to find out my true identity. Niro is well known for writing articles and interviews describing himself as the best protector of “patent trolls,” such as a July 20, 2006 article in IP Law & Business featuring Niro, titled “Meet the Original Patent Troll.” Starting with his mid-September 2007 contact to me, Niro began giving interviews publicly decrying my website, and wrote me several emails. I responded to some of his correspondence in my own website.

7. In late November 2007, I learned that Niro was offering a $5,000 information for reward leading to my identity. Later, he increased that award to $10,000, and then to $15,000. When news stories on other websites and magazines began discussing Niro’s reward, someone evidently posted a comment on the website Slashdot, which Niro claimed to be a death threat against him and his family.

8. I voluntarily disclosed my identity on my website on February 23, 2008. My understanding is that Niro claims he did not have to pay the reward.

9. After I revealed myself to be an attorney employed by Cisco, my employer and I were sued in Texas for defamation relating to an article I posted on October 18, 2007. As a result of the defamation lawsuit and related investigations, and since the Patent Troll Tracker website is a website that is published solely by me, I decided to temporarily suspend the website. I intend to resume the publication in the near future, after taking time to attend to some of the legal matters that need my immediate attention. When I resume the publication, I intend to continue to regularly report on patent reform issues as well as patent litigation filed across the country, focusing primarily on news about patent litigation filed by people or entities that are not making any products or providing any services related to the patents. At that time, the website will again be open to the public.

10. Niro was a guest on an internet radio program (“Lawyer 2 Lawyer”) on March 27, 2008, and repeated his criticisms of my website announcing that “I am going to be taking his deposition in a case shortly.” He also made reference to the Arkansas and Texas litigation where I am a defendant along with Cisco, stating that “I know Johnny Ward (the Arkansas Plaintiff) very well and I know Eric [Albritton] (the Texas plaintiff) too.” He then commented on the litigation in a way unfavorable to me.

11. On the morning of Saturday, March 29, as I was leaving the house, I found a subpoena on my doorstep.

12. The subpoena at issue comes from a case pending in the United States District Court for the Northern District of Illinois, Eastern Division, Case No. 078-C-5081, Illinois Computer Research, LLC v. Google, Inc. A true and correct copy of the subpoena is attached hereto as Exhibit C-1. My understanding is that the subpoena was issued at the request of the Plaintiff/Counterclaim Defendant Illinois Computer Research and a third party defendant and counterclaimant Scott C. Harris (“Harris”). The Defendant and Counter-Plaintiff is Fish & Richardson P.C. (“Fish”). ICR and Harris are represented by Raymond Niro of Niro, Scavone, Haller, and Niro. The only cited relationship in the subpoena that I am alleged to have with the Chicago case is “as a close associate of Fish.”

13. It is not true that I am a close associate of Fish. I have never been employed by Fish and during my career as a patent litigator before joining Cisco, I was personally adverse to Fish in at least two cases. When I joined Cisco, I learned that Fish was adverse to Cisco in a case pending in the District of Massachusetts. Up until this case was resolved in mid-October 2007, this conflict prevented Cisco from hiring Fish.

14. In mid-November, it is my understanding that Cisco hired Fish to take over representation of Cisco in a patent infringement case pending in Delaware. Although I do not have direct responsibility for this Delaware litigation involving Fish, I have been indirectly involved in that litigation.

15. As part of the ICR/Harris subpoena, I am being asked to testify about and produce documents regarding confidential sources and unpublished information that I have used to gather and report news about patent litigation on my Patent Troll Tracker website. The subpoena also attempts to compel me to testify about and to produce unpublished documents that I obtained and used for preparation of my communications to the public on my Patent Troll Tracker website. For example, Request No. 6 asks for “Investigative materials, sources for, and procedure for the Patent Troll Tracker blog articles identified in Exhibits A to C.”

16. Throughout the entire publication of Patent Troll Tracker, I have been engaged in newsgathering activities for the purpose of reporting on news about patent litigation and the debate regarding patent reform. I am concerned that if I am forced to produce unpublished information and to testify about and produce such material that it will result in a serious detriment to my ability to gather and disseminate the news.

17. For example, many of the ideas of my articles originated from tips readers would send me about patent lawsuits that were filed, or publicy-available corporate filings by shell corporations revealing the identity of their true owners. Should I be compelled to reveal my sources for these stories, readers will be less likely in the future to provide me with such information.

18. Moreover, the subpoena deposition topics and document requests are so grossly overbroad and are not properly limited to relevant and non-privileged information in the ICR/Harris/Fish litigation. As such, complying with the subpoena would impose an undue burden on me to attempt to comply. The subpoena, which I found on my doorstep on Saturday morning, March 29, 2008, only gave me nine days to produce numerous documents and only ten days before it required me to appear for a deposition. My objections for each and every document requested are set out by my counsel, George L. McWilliams, as an exhibit to his declaration, attached to Richard Frenkel’s Notice of Motion, Motion to Quash Subpoena; Motion for Protective Order; and Memorandum of Points and Authorities. I incorporate those objections by reference herein.

I declare under penalty of perjury that the foregoing is true and correct.
Executed on April 4, 2008.

Signed, Richard Frenkel

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Scanned PDF version of this document. <link>

Other posts in this series:

• Part One: Scott Harris' lawyers drop Troll Tracker deposition demand.
• Part Three: Is the Patent Troll Tracker a reporter?
• Part Four: Patent Troll Tracker and the Reporter's Privilege.

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.