The Prior Art

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.

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.

Are East Texas companies becoming pawns in the venue-shopping game?

Bedrock Computer Technologies is a patent-holding company owned by David Garrod, a former Goodwin Procter lawyer. Last month, I wrote about Bedrock's lawsuit against several of the biggest Internet companies—and CitiWare Technology Solutions, a tiny Longview, Texas software company.

Since the publication of that column, CitiWare's owner, Nate Neel-Smith, has taken down his old website and replaced it with a web page denouncing the lawyers who sued him. The lawsuit against him was a big mistake, says Neel-Smith, since he actually went out of business some time ago. "See how you might feel when your [sic] sent a BOGUS lawsuit on which you must waste time and money to defend!" writes Neel-Smith.

In my earlier column, I speculated that CitiWare's inclusion in the lawsuit was a strategy by Bedrock and its McKool Smith lawyers to maintain their preferred venue in the Eastern District of Texas.

The Recorder's Zusha Elinson has done some additional reporting that suggests that theory may be right. Elinson cites research by patent lawyer Yar Chaikovsky showing that since the Federal Circuit's TS Tech ruling in December, it's been easier for defendants to get out of East Texas when they want to—except when at least one local defendant is included in the suit. In those instances, the venue seems to stick. Elinson notes another example of a small East Texas company tangled up in venue politics: Plano-based Big Jump Media Inc., which runs Tangle.com, "a sort of Christian YouTube site that used to be called GodTube." McKool Smith is also lead counsel on the lawsuit involving Big Jump Media.

These small companies may have become "absurd pawns in the patent litigation venue-shopping game," writes Elinson. Read the full article.

Photo: J. Mullin, Longview, Texas

Buying TiVo's bull in E.D. Texas

Zusha Elinson's amusing sign-of-the-times column, published in today's Recorder, deserves to be spread wide and far. I've been eager for this one since I first began overhearing Elinson dutifully call county fairs and small-town newspapers to track down the gem that is this story: Buying TiVo's Bull. (Free reg. required.) Definitely worth the wait.

Elinson reveals that back in 2006, while TiVo was engaged in life-or-death patent litigation with Dish Networks over its "time warp" DVR patent, the company paid the record-breaking sum of $10,000 to purchase the Grand Champion Steer at Farm City Week in Marshall, Texas. Then the company named the bull "TiVo." Two weeks later, a jury awarded TiVo $74 million in damages.

"It didn't affect the outcome of the case," Sam Baxter, the McKool Smith lawyer who made the purchase on behalf of TiVo, tells Elinson. "Lawyers and facts win cases, and not much else." Baxter also notes that TiVo tactfully waited until after the trial was over to advertise its purchase in the local paper, the Marshall News Messenger.

One jury consultant interviewed for the story agreed but was unimpressed by the tactic: "Buying a cow like that I think is bullshit. I think it's insulting — the idea that people are so simple that something like that will influence the case."

Another little nugget: TiVo isn't the only tech company with significant litigation in the E.D. Tex that has become a real believer in boosting community events in Marshall as well. Elinson notes: "Stagecoach Days — the May celebration of Marshall as a transportation hub featuring the 'Little Mr. & Mrs. Stagecoach Pageant,' a parade and car show — is now known as Samsung Stagecoach Days." Read the full article.

Photo: Flickr / brent_nashville

Patent Litigation Weekly: PubPat and "Patent Troll" Make Strange Bedfellows

The view that software patents are an impediment to progress—common among technologists—is rare among patent attorneys. But Dan Ravicher is not a typical patent attorney. He founded the Public Patent Foundation (PubPat), a public interest group that, according to its website, "represents the public's interest against undeserved patents and unsound policy." PubPat recently helped the ACLU launch a major challenge to human gene patents. In the past, PubPat has also challenged broadly asserted software patents, which Ravicher believes "hinder — rather than promote — innovation."

Meanwhile, it's not unusual that a patent-enforcement company recently set up in East Texas would file suit there this week against ten Internet-based and software companies. Nor is it unusual that Texas corporate records show the company is owned by an erstwhile big-firm lawyer, in this case David Garrod, formerly of Goodwin Procter.

What is surprising is that at the same time he is trying to wring licensing fees from such big online names as Google, Yahoo, and Amazon, Garrod is also spearheading a major PubPat initiative: filing lawsuits to rid the marketplace of false patent markings.

The company Garrod owns, Bedrock Computer Technologies, LLC, filed a lawsuit on Monday alleging that the defendants infringe U.S. Patent No. 5,893,120. The list of defendants includes seven big Internet companies—Google, Yahoo, MySpace, PayPal, Amazon, Match.com, and AOL—as well as the world's largest futures exchange, CME Group, and two software companies located in the Eastern District of Texas.

Patent-Litigation Weekly: The Photo-Sharing Files

This week: A snapshot look at how the surge in infringement suits by patent-holding companies is causing big woes for small companies, and potentially affecting the ability of many people to engage in a popular pastime.

Creating and sharing images—drawings, paintings, photographs—are among the most ancient of human activities, and throughout history, technology that makes that sharing possible has been embraced as rapidly as it appears. Today, that technology takes the form of software applications for computers and cell phones.

That all helps explain why the collection of scrappy entrepreneurs who run small and medium-sized photo-sharing companies didn’t always think about patents as they built up their businesses.

But patents are certainly on their minds now that they’ve been sued for infringement by a company they've never heard of, in a place they've never thought about, in a case that illustrates how the surge in lawsuits by patent-holding companies isn’t just taking a bite out of big companies—it’s hitting small businesses too.

"You can't imagine the stress this caused, me thinking the company I put 10 years of effort into could have folded because of this," says Jeff Kelling, a partner in Texas-based software maker FotoTime.

Patent Litigation Weekly: The Lone Star Edition

This week: a low-profile Texas doctor is looking for a piece of the growing medical software market; a holding company controlled by a former Townsend partner files more lawsuits; and last week's one and only lawsuit filed in the Eastern District of Texas.

Texas Doc Has Eyes on a Prize

• Prompt Medical Systems v. iMedica Corp. 09-cv-01286, S.D. Texas, filed 4/28/09.

The Obama administration has made the switch to electronic medical records a key part of its economic stimulus plan, and is set to give health care providers $17 billion in federal funds to help make it happen. Much of the work will be done by medical technology companies hired by hospitals to implement the new records.

Eager to get some of that stimulus cash, medical technology companies are rolling out new products to help with the switch—and patent lawyers and their inventor clients are rolling out new lawsuits in response.

Medical software provider iMedica launched a new version of its Patient Relationship Manager software at the end of March. Last week, iMedica joined a growing club: companies that have discovered they will have to pay off a low-profile South Texas opthalmologist and his attorneys—or risk being shut down. 

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).

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.

Polaris IP, suing Google, argues for wide-ranging discovery

On Friday, I wrote about how lawyers working for Polaris IP (Erich Spangenberg) want to use the discovery process in Polaris IP v. Google to learn more about Google's patent reform efforts. Google asked for a protective order; now Spangenberg's response is available. [PDF via Justia]

What's the relevance? Polaris lawyers want to know "Google’s views and efforts relative to the Accused Instrumentalities being able to use the patented technology of others without providing damages adequate to compensate for the infringement." The "Accused Instrumentalities" are the Google products Spangenberg believes he should be paid a royalty on: Google Search, AdWords, and AdSense.

If I hadn't recently watched a patent trial (almost) in its entirety, I think I'd have a hard time understanding what Polaris might be after. But now I can imagine the deposition clips that a skilled lawyer could get from this: "Do you really expect this jury to believe that Google respects patent rights? Isn't it true that Google doesn't want to pay when it uses other people's intellectual property? Didn't Google spend millions lobbying Congress to get the penalties for using other people's intellectual property reduced?" ... and so on.

Zilka & Kotab, a.k.a. Aloft Media, file patent lawsuit against Google's Chrome browser; the latest of many.

I'm back from Texas, where I was able to watch a patent trial (almost) in its entirety, which was a very educational experience. That case, Mass Engineered Design v. Ergotron, will be part of an upcoming feature story in the January print edition, and I'll share some of my thoughts and observations about what I saw and witnessed in Marshall here on The Prior Art.

Now it's time to return to a subject I visited in the October issue, when I focused on IP lawyers who have acquired their own patents, and then used them to sue companies, and sometimes entire industries, for patent infringement. The topic is far from exhausted.

Today I'll focus on two San Jose patent lawyers who have sued at least 20 companies in the past several months: Dominic Kotab and Kevin Zilka, the principals of Zilka-Kotab P.C., and at least three patent-holding companies—Aloft Media, LLC; Stragent, LLC; and Azure Networks, LLC.

Postcard from E.D. Tex

Greetings from the world capital of patent litigation: Marshall, Texas, pop. 25,000.

Earlier this week I was part of a panel of several patent bloggers at the Center for American International Law Conference on IP Law, in Plano, Texas. It was an invigorating panel and a great chance to meet some of my fellow patent bloggers: namely, the authors of Patent Baristas, PATracer, EDTexweblog, and The 271 Patent Blog. Michael Smith has a good summary of Monday's events.

Because the CAIL conference was in Dallas, I've taken the opportunity to visit the Eastern District of Texas, which is, this year and last, the nation's most popular venue for patent lawsuits. I'm doing interviews and sitting in on the two patent trials currently underway: Agere Systems v. Sony and Mass Engineered Design v. Ergotron.

I'll have more on my impressions from Marshall in the coming days. After about a year of various patent lawsuits in the Eastern District, it's exciting to finally be here, and I'm lucky to have planned a trip while two trials are underway.

Photo by J. Mullin. Harrison County Courthouse Marshall, Texas.

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.