The Prior Art

Patent Litigation Weekly: International Trade Commission rebuffs Big Tech, keeps doors open to NPEs

The International Trade Commission is in charge of enforcing the Tariff Act of 1930, a law passed during the Depression to protect U.S.-based companies from unfair trade practices, including the sale of goods that infringe valid U.S. patents. In recent years, however, the agency's definition of what qualifies as "domestic industry" has expanded to the point that small patent-holding companies with just a handful of employees (Saxon Innovations, St. Clair Intellectual Property Consultants) and even individual inventors have been allowed to proceed with ITC litigation.

Congress helped expand the ranks of who could seek remedies at the ITC in 1988 when it amended the "domestic industry" requirement to include "licensing" as qualification. Patent-holding companies have relied on that change ever since to justify their arguments that the taxpayer-funded ITC should ban imports of certain products on their behalf. Of course, in 1988, the patent litigation landscape was very different, and patent-holding companies—aka "non-practicing entities," or "patent trolls"—in the modern sense simply didn't exist.

Patent Litigation Weekly: Inventor from ESN v. Cisco and Troll Tracker Lawsuits Arrested on Weapons Charges

The inventor who holds the patent that was at the heart of two libel lawsuits against "Patent Troll Tracker" blogger Rick Frenkel and Cisco Systems was arrested last week, after police found an illegal stockpile of firearms, ammunition, and grenades in his home in Manchester, Massachusetts, about 30 miles from Boston. Gregory Girard, named inventor on U.S. Patent No. 7,283,519, believed he was readying himself for "Armageddon," according to police. In addition to having around 20 firearms, Girard was stockpiling food and medicine, camouflage, and body armor, and had built an indoor shooting range in the attic of his condominium, according to accounts of the arrest in the Gloucester Daily Times and the Boston Globe. Girard had a license for the guns, but his explosives, double-edged knives, and habit of shooting indoors are all illegal.

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.

Troll Tracker defamation case settles before going to jury

After four days of testimony, the "Troll Tracker" defamation lawsuit ended in a confidential settlement the day before the East Texas jury hearing it was set to begin deliberations. 

Plaintiff Eric Albritton and defendants Cisco Systems and Rick Frenkel, a former Cisco lawyer who blogged anonymously as the Patent Troll Tracker, settled the case Monday night, shortly after Judge Richard Schell ruled that the jurors would have to find "actual malice" on the part of Frenkel and Cisco in order for Albritton to win the punitive damages he was seeking from the tech giant. 

None of the lawyers involved in the case would comment on the settlement Monday. Cisco issued a statement Tuesday morning in which it said the dispute between the parties "has been resolved to their mutual satisfaction, and Rick Frenkel and Cisco apologize for the statements of Rick Frenkel on the Troll Tracker blog regarding Eric M. Albritton." Frenkel is now of counsel at the Silicon Valley law firm Wilson Sonsini Goodrich & Rosati.

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.

Patent Litigation Weekly (April 6-10)

This week: The empire strikes back--Cisco Systems and Citibank file counter-suits against the patent holders making claims on videoconferencing and check-imaging, respectively; a defunct company with a less than stellar track record in the patent lawsuit business keeps filing; and a familiar player with a new name in E.D. Texas.

• Cisco Systems, Inc. v. Teleconference Systems, Llc Et Al. 09-cv-01550, N.D. California.

Teleconference Systems is a shell company set up by Acacia Research Corp., the Orange County-based patent-holding company that has, by one estimation, filed more patent suits than any other. Teleconference Systems was set up to enforce the 6,980,526 patent, which is related to videoconferencing; the patent is owned by Margalla Communications, a consulting company in Woodside, California, which presumably will share in any licensing booty Acacia wins.

On March 27, Teleconference filed its first patent lawsuit in Delaware, alleging that several companies in disparate industries have infringed the '526 patent. Teleconference is represented by Anthony Simon of The Simon Law Firm in St. Louis (formerly Simon Passante).

The Gnu heads to court, files lawsuit against Cisco

The Free Software Foundation filed its first-ever copyright lawsuit yesterday, against Cisco Systems. The FSF accuses Cisco of not complying with the terms of the FSF's popular viral license, the General Public License, in the company's Linksys line of products. Anyone who distributes software or products that are GPL-licensed must provide source code when distributing it; by falling down on the GPL-vigilance front, "Cisco has denied its users their right to share and modify the software," say FSF lawyers.

The non-profit FSF has never before gone to court as a plaintiff to enforce the GPL, the license that founder Richard Stallman has called his "hack" of copyright law. But it has provided pro-bono legal services to open source developers who want to enforce their own GPL'd code, most notably in the BusyBox litigations.

A Cisco spokesperson stressed the company's commitment to open source, and responded that "We are currently reviewing the issues raised in the suit but believe we are substantially in compliance. We have always worked very closely with the FSF and hope to reach a resolution agreeable to the company and the foundation." (via Ars Technica)

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 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

Bitten by patent-fish? Try "Catch and Release."

Several large tech companies have teamed up to try to defend themselves against patent lawsuits in a venture called Allied Security Trust, first announced to the Wall Street Journal.

Seven of AST's 11 members have been publicly identified and were confirmed by CEO Brian Hinman (at right) when I spoke to him yesterday; they are Sun Microsystems, Hewlett-Packard, Cisco Systems, Google, Ericsson, Motorola, and Verizon.

The basics: membership costs a bit less than $500,000, and each member has to put up $5 million for patent purchases. The strategy is what Hinman calls a "catch-and-release" model: AST will buy the patents, give nonexclusive licenses to members that want one, and return it to the marketplace. That will recoup some of the members' costs; it will also, of course, keep the litigation environment a few degrees hotter for non-members.

Hinman is quick to point out that the fund is just one part of patent defense strategy, not a panacea. "We are not obtaining all the patents in the universe that are problematic," says Hinman. But AST will negotiate—quietly, through brokers—to buy some of the really problematic ones. "Litigation costs and settlements continue to be on an upward trend," he notes, and a little dent in costs could go a long way.

Are there enough fuzzy-boundary technology patents out there to keep defendants jumping regardless? We'll all find out in due time; meanwhile, a burgeoning class of IP middlemen has cropped up to help clients navigate the economy's ever-costlier patent landscape.

On its website, AST describes its mission as "freedom of operation and cost reduction." No profits for the trust, and no lawsuits against anyone—a promise that Nathan Myhrvold at Intellectual Ventures hasn't quite been willing to make, to the consternation of many.

AST goes public just a few months after PatentFreedom, another patent consultancy with a defense-side business plan, made its debut. Both companies rise against the backdrop of a stalled patent reform bill in Congress and an explosion in patent assertions.

Interestingly, both Hinman and PatentFreedom CEO Dan McCurdy have long work histories at IBM.  McCurdy spent about 12 years at Big Blue in various capacities, leaving in 1996; Hinman worked at the company for 15 years, and left his position as VP of Intellectual Property and Licensing just a few months ago to start up AST.

I'll have more on AST in the August issue of IPLB.

The spicy quote in AST coverage so far is from Acacia Research CEO Paul Ryan, who tells Bloomberg News that the formation of Allied Security Trust "is an acknowledgement" that its members are infringers. "Otherwise they wouldn't have any exposure," he says.

Just the sort of saber-rattling that can be good for the shield business, I imagine.

Is the Patent Troll Tracker a reporter?

That’s the question at the heart of a flurry of documents filed in a San Jose federal court over the  past few weeks—and while the answer won't come in the instant dispute, the debate will weigh heavily on the lawyer-blogger during the defamation case pending against him in Texas.

Rick Frenkel lays out the background:

    Starting in May of 2007, Frenkel created the PTT to report on issues of interest to the patent community and the general public. The PTT advocates reform of the patent law system; it does not “systematically attack judges, lawyers, and parties to lawsuits” as Movants claim. Initially, postings on the PTT were not signed.
    Movants’ counsel, Raymond Niro (“Niro”), a lawyer specializing in intellectual property disputes, including patent cases, has a contrary editorial viewpoint that competes with the PTT. The two attorneys have traded lively, and sometimes heated, exchanges over patent issues; Niro in interviews with the press, and Frenkel on his website. Niro publicly alleged that a death threat aimed at him and his family was sponsored by the PTT, an allegation Frenkel denied. Niro also established a reward for anyone who would unmask the identity of the person behind the PTT, raising it from an initial offer of $5000 to $10,000 and finally $15,000 before Frenkel revealed himself as the author of the PTT. The reward, we understand, remains unclaimed.

Frenkel goes on to argue he’s a “non-party lawyer-journalist,” protected from compelled testimony by "the free press and speech protections of the First Amendment to the United States Constitution, as recognized by the common law Reporter’s Privilege doctrine, and the California Shield Law." Harris’ subpoena would compel him “to provide testimony and produce documents regarding confidential sources and unpublished information" protected by those laws, and is thus unjustified.

Frenkel cites Branzburg v. Hayes, a 1972 U.S. Supreme Court case that sets the rules on when a journalist can be subpoenaed, as well as the well-established California laws. Forced testimony “would result in a serious detriment to Frenkel’s future ability to gather and disseminate news,” he writes.

“The newsgathering efforts of a reporter such as Frenkel should not be made part of civil discovery between parties without a showing of the required elements set forth above… this type of burden is exactly what the federal and state common law and constitutional protections are designed to prevent.”

“Frenkel is and was engaged in the gathering and dissemination of news about intellectual property litigation on his Patent Troll Tracker website. The fact that Frenkel chose to disseminate news on a website, as opposed to a more traditional source of journalism, is irrelevant.”

What does Raymond Niro think of all this? He scarcely knows where to begin; the brief sizzles and jumps through Frenkel's various sins, calling him unqualified, unethical, threatening, a corporate stooge for Cisco, a writer of devilish anagrams and haikus, and most importantly, not a reporter. It also draws thin or non-existent connections between Frenkel, various Fish & Richardson attorneys (one of whom who appeared at a webinar with Frenkel; as in, the World Wide Web), and Google's Head of Patent and Patent Strategy, Michelle Lee. (Frenkel says he's never spoken with Lee, who is Google's top patent lawyer; Ray Niro, by way of contrast, sends correspondence her way quite often, if you catch my drift.)

Sin #1: Unqualified. Frenkel is an engineer and a lawyer, writes Niro, but...

"Frenkel has no degree in journalism; no professional training as a reporter; and has never been employed as a reporter or journalist. He has no public relations responsibilities at Cisco.  Indeed, after he was finally forced to admit he was the author of the ‘patent troll tracker’ blog, Cisco promptly muzzled him by insisting that his blog could continue to operate 'by invitation only.'"

(Frenkel shut down his blog only after he was sued twice for defamation; Cisco denied having “muzzled” him,  writing in court briefs that Frenkel’s decision to shut the blog down was “his alone.”)

Sin #2: Uncivil. Niro doesn't care for Frenkel’s sense of humor or wordplay. The brief condemns "offensive haikus" such as these:

Scott Harris lost his job ‘cause he wanted his Fish
And to eat it too.

Pesky ethics rules. Conflicts mean nothing to trolls
Help me, Ray, Help me!

And the anagrams... Those damned anagrams! ("Niro Scavone = Naive? Or Cons?")

Sin #3: Corporate stooge. Harris/Niro/ICR write: 

He was not engaged in “gathering news” but, rather, in promulgating propaganda favorable to his employer Cisco, in utter contempt for the ethical cannons that bind real reporters.

Frenkel’s covert attempts to promote the interests of Cisco make his blog into what
amounts to a paid advertisement for Cisco – and Cisco has effectively admitted as much… The shield law does not extend to Frenkel’s puffing for a commercial business such as Cisco.

Sin #4: Unethical. Frenkel’s blog is the “antithesis of journalism," writes Niro:

"Nowhere, however, does Frenkel confront or even acknowledge the principle that there is more to being a "reporter" who is gathering and disseminating "news" than typing words into a computer and broadcasting them to all and sundry over the internet.

It is for good reason that Frenkel and Cisco don’t examine too closely (or at all) what it  means to be a "reporter."  Whatever terms might be applied to Frenkel’s activities (and some of the labels that come to mind are not very complimentary), "reporting the news" isn’t one of them.

As set forth in the Statement of Facts, above, Frenkel has no education nor training whatever as a journalist.  If he had, he would have learned that his activities in connection with his “troll tracker” blog were the diametrical opposite of what “reporters” do.

Then Niro pulls out the Society of Professional Journalists' Code of Ethics, along with an ethics code from U.S.C.’s School of Journalism, and says that Frenkel regularly violated ethical principles of journalism, by 1) writing anonymously, 2) not revealing his sources (!), 3) writing unfair headlines, 4) concealing conflicts of interest that stemmed from his position at Cisco, 5) engaging in advocacy, and 6) being annoying. They lay it all out in an amazing chart that compares "What Journalistic Ethics Require" with "What Frenkel The Self-Proclaimed 'Reporter' Actually Did." (see pages 11-12 of ICR/Harris response brief, linked below.)

But of course, nobody needs a license or a degree to be a journalist (good thing, too.) Even before the age of 'participatory media' that's now blurring all the lines, the practice of finding and verifying facts is just that—a practice, one that's open to anyone in a free country.

And "propaganda" is in the eye of the beholder. Since I would maintain that anyone can be a journalist—even if you write articles favorable to your employer, (or unfavorable!) and even if they don’t have “formal training” (which until recently nobody had).

As to advocacy, there’s a long tradition of advocacy reporting that’s not any less legitimate than "mainstream" reporting, and having an opinion and expressing it doesn’t boot you out of the realm of journalism (and what a lofty realm it sounds like in this brief!) Whether or not a reporter has followed the SPJ "rules" doesn't have much to do, in my opinion, with whether they deserve protection or not. There simply is no journalism rulebook. Ethics policies are debated all the time, and change over time.

But the most backwards argument is that to qualify as a “real”reporter Frenkel would have to reveal his sources. What an obscene misreading of these professional codes attached as exhibits. For Frenkel to reveal who sent him news tips, emails, or other correspondence would be a betrayal of trust that no responsible journalist would allow. This is the plain difference between being transparent and betraying your friends.

Putting aside the anonymity aspect, Frenkel’s blog could be thought of as quite conservative, journalistically speaking. From day one he insisted that he would refuse to receive any non-public documents; some very successful reporters have built careers on making it clear they do accept such paperwork (e.g., the leaked grand jury transcripts that led to the BALCO stories). The PTT reporting was almost entirely opinion and public documents, and those who did fact-check his research, as Patently-O author Dennis Crouch did, found it accurate.

It’s a good question how far the reporter’s privilege should be extended; not everyone with a domain name can be allowed to evade a civil subpoena. But I don’t think Frenkel’s blog was even a close call. There’s no doubt in my mind that Frenkel was reporting the news, and will continue to be if and when he re-starts his blog; more than anything, he was my competitor.

Finally, anonymity. Writing anonymously, by definition, flunks the “transparency” test of—and the modifiers are important here!—contemporary, mainstream, professional journalism. But of course there is a long and proud historical tradition of writing anonymously about public issues, from the Federalist Papers onwards, well covered in Frenkel’s brief and by advocacy groups like EFF, which has defended anonymous bloggers in court. (Is it any surprise that a blogger with a $15,000 bounty on him would start sporting the EFF Bloggers' Rights logo?)

But there's a lot more to say about anonymous speech in the Internet age; and I would argue that the Patent Troll Tracker blog, more than other publications I've seen, raises weighty questions about anonymity, media, and power in the digital age.

That's all be too much for this already long post on an already long day. There's still some sunlight in San Francisco, and I need to catch a bit of it. Tomorrow I'll publish the fourth and final installment of this Patent Troll Tracker series: anonymity, the media, and the JPEG patent.

Other posts in this series:

• Part One: Scott Harris' lawyers drop Troll Tracker deposition demand.
• Part Two: Patent Troll Tracker speaks—and vows to return.
• Part Four: Patent Troll Tracker and the Reporter's Privilege.

Documents related to the Patent Troll Tracker subpoena:

• ICR/Scott Harris Motion for Discovery in Chicago litigation (February 28,2008)
• Deposition topics demanded by ICR/Scott Harris
• Rick Frenkel Declaration (April 4, 2008), see also here.
• Rick Frenkel Motion to Quash asserting reporters’ privileges (April 7, 2008)
• Rick Frenkel’s Opposition to Motion to Compel  asserting reporters' privileges (April 21, 2008)
• Cisco Systems Motion to Quash (missing cover and signature page)
• ICR/Scott Harris Response to Motions to Quash (April 22, 2008) (document quoted in this post)
• Rick Frenkel’s Reply to ICR/Harris Response  (April 29, 2008)
• Cisco Systems Reply to ICR/Harris Response (April 29, 2008)

Scott Harris' lawyers drop Troll Tracker deposition demand; Frenkel, Cisco say subpoena was meant to assist Texas lawyers' defamation attack

Part One: Scott Harris’ lawyers give up their effort today to depose Patent Troll Tracker blogger Rick Frenkel. Harris’ lawyers at Niro Scavone Haller & Niro (NSHN) had said they suspected Frenkel was working with opposing law firm Fish & Richardson, which is locked in litigation with its former top-billing lawyer and Niro Scavone client Scott C. Harris.

Cisco and Frenkel, in turn, claimed that Niro lawyers were using an overly-broad subpoena as a back-door route to uncovering evidence that could be used in the Arkansas and Texas pending defamation lawsuits against Frenkel and his employer. There was no secret alliance between  Fish & Richardson and Frenkel; rather, it was the Niro Scavone firm that could be sneakily helping Johnny Ward Jr. and Eric Albritton get more ammunition for their lawsuits, allege Frenkel his employer.

Harris' lawyers say they gave up on this deposition because Frenkel swore in his deposition that he had "no communication with anybody at Fish & Richardson concerning the underlying litigation and the related parties." That cancels the May 13 hearing that was scheduled in San Jose where Harris' lawyers would have faced off with attorneys representing Cisco and Frenkel.

From Frenkel's brief opposing deposition ("Movants" here means Scott Harris & Co.):

    The subpoena is, of course, much broader and seeks wide ranging information about the Patent Troll Tracker. Furthermore, we are informed and believe that the discovery in the Chicago case has put Movants on notice that Frenkel, consistent with his declaration in this matter, had no involvement with the Fish firm whatsoever regarding the Chicago case. We invite Movants to contradict our informed belief with evidence.
    What the court is left with is that Frenkel wrote matters displeasing to Movants and their counsel on the PTT. For this they have attempted to create an excuse to take his deposition. The subpoena raises not only issues of harassment and abuse, but also the right of speakers to publish their views free of legally imposed inquiry from and by the subjects of the articles when, as non-parties, they have no connection to the underlying litigation.
    The testimony sought may have relevance to the Arkansas and Texas litigation. The Arkansas and Texas litigation involve claims that Frenkel published defamatory comments on the PTT. Because portions of the discovery sought have no apparent relevance to the Chicago case but may have relevance to the Arkansas and Texas litigation, Frenkel fears that Movants' true motivation for issuing the subpoena and seeking to compel discovery is to circumvent the discovery orders of the Arkansas and Texas courts. Such conduct is a clear abuse of the subpoena power.

In its motion to quash, Cisco Systems makes similar arguments. The company points out that not only did Ray Niro put out a $15,000 (unclaimed) bounty to unmask Frenkel, but that when Niro was a guest on the Internet radio program "Lawyer 2 Lawyer" on March 27, he gave a friendly shout-out to the Texas lawyers behind the defamation suits, saying "I know Johnny Ward very well and I know Eric [Albritton] too."

From Cisco's Motion to Quash:

    Frenkel's Patent Troll Tracker is a popular website that provides interesting, timely, and important information to the patent community and others. As the name would suggest, its point of view was sometimes critical of shell corporations established solely for the purpose of filing patent litigation (colloquially known as "patent trolls") and thus, a counterpoint to Harris' website and Niro's written articles which generally extolled their virtue. A posting on October 18, 2007 of the Patent Troll Tracker has resulted in defamation litigation in separate federal courts in Arkansas (Texarkana) and Texas (Tyler) brought by two attorneys (not Niro or his firm).
    The following deposition Topics from the subpoena might have relevance to the Texas/Arkansas Suit but would seem to have nothing to do with the claims and defenses of the Chicago case:
    5. Factual bases for Patent Troll Tracker blog articles identified in Exhibits A to C.
    6. Investigative materials, sources for, and procedure for Patent Troll Tracker blog articles identified in Exhibits A to C.
    7. All Patent Troll Tracker blog entries concerning Scott Harris, Raymond P. Niro, NSHN, James B. Parker, Courtney Sherrer, or the relevant lawsuit.
    8. The origin and history of the Patent Troll Tracker blog.
    9. The decisions on subjects, including but not limited to Scott Harris, Raymond P. Niro, NSHN, James B. Parker, Courtney Sherrer, addressed in the Patent Troll Tracker blog.

"Harris' website" is presumably a reference to the remarkably named, and recently revived, www.imapatenttroll.com.

I'll continue this story over the next two several posts.

Other posts in this series:

• Part Two: Troll Tracker speaks, and vows to return
• Part Three: Is the Patent Troll Tracker a reporter?
• Part Four: Patent Troll Tracker and the Reporter's Privilege.

Troll Tracker, hunted: Scott Harris' lawyers come to San Jose

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:

• Harris' request for a speedy Frenkel deposition. <link>
• Frenkel's opposition. <link>

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.