The Prior Art

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 Harris’ subpoena would compel him “to provide testimony and produce documents regarding confidential sources and unpublished information" protected by those laws, and is thus unjustified.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.

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)

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, case file N.D. California 08-80075-JF.

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

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

---------------------------------------------------------

Scanned PDF version of this document. <link>

Next, Part Three:
The question at the heart of the Harris-Frenkel dispute: Is the Patent Troll Tracker a reporter?

Part One: Scott Harris' lawyers drop Troll Tracker deposition demand.

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 posts.

Tomorrow, Part Two:  Patent Troll Tracker, in his own words.

Updated Scott Harris timeline

For those following the Scott Harris v. Fish & Richardson litigation: I have updated the timeline on L' Affaire Harris, and it is now current through May 2, 2008. I also added more document links, including clips from last year's coverage.

Keker & Van Nest wants to get away from client with cybersex patent rights; won't say why

Keker & Van Nest has an inconvenient client.

After Immersion Corp. won an $82 million judgment against Sony Computer Entertainment America Inc. for infringement of its patent on "haptic" (vibrating) joystick technology, a mysteriously named company—Internet Services, LLC—sued Immersion, hiring Keker & Van Nest attorneys Mark Lemley and Daralyn Durie in an attempt to cut itself a piece of patent victory pie.

Internet Services, LLC (ISLLC) appears to be a lawyer-controlled patent holding company. (at least, I can't tell what they make.) Although they must do something, because they did pay $1.7 million to Immersion in royalties, according to a declaration filed last week by its president, Leslie Layne Britton. Britton is a Los Angeles lawyer who has a disconnected phone number and a resume that includes a stint as an executive at UPN.

Britton's company had an exclusive license with Immersion to market its vibrating technology for the adult gaming market. And Immersion wanted to outsource its patent lawsuits in the adult game market to ISLLC because "in some cases it might be bad publicity for Immersion to enforce its IP rights against some companies in ISLLC's exclusive field of use," according to Britton. That field of use had something to do with "teledildonics," a term I confess to being unfamiliar with until yesterday.

From Britton's declaration:

While negotiating ISLLC's license with Immersion, I met with Richard Abramson (then Immersion's head in-house lawyer) and Louis Rosenberg (Immersion's founder, Chairman and CEO and President) in Richard Ambramson's office at Immersion on multiple occasions. At one particular meeting, Messrs. Ambramson and Rosenberg discussed a concept called teledildonics. In explaining the concept of a teledildonic device, Mr. Abramson brought up the website www.teledildonics.com on his computer monitor and showed it to me and Mr. Rosenberg. Mr. Rosenberg then took apart a vibrating mouse that Immersion had developed for and sold in the retail market, pulled out its chip and motor, and explained to me that these two items cold (sic) be put into almost any form factor, including a teledildonic device. Messrs. Abramson and Rosenberg said that a teledildonic device would infringe Immersion's IP within ISLLC's exclusive field of use, and that ISLLC, not Immersion, could sue such infringing device makers. They further explained that because it might in some cases be bad publicity for Immersion to enforce its IP rights against some companies in ISLLC's exclusive field of use, Immersion wanted ISLLC to have enforcement rights within that field. And Messrs. Abramson and Rosenberg noted that it might only make sense for ISLLC to try to enforce its rights if the potential damages were high because ISLLC alone would have to bear the cost of such a suit.

Really, you can't make this stuff up. Now Lemley and company want off the case, but won't say why (who wouldn't want to enforce a patent on teledildonics? I don't get it.) But his client won't let him off the hook. In fact, ISLLC hired new attorneys just to argue against Lemley's motion to withdraw. Hey, when you've got the best, why settle for less, right? They're up against an Irell & Manella team led by Morgan Chu, after all.

(Interesting aside: Chu was assisted in the Immersion v. Sony lawsuit by Patent Troll Tracker blogger Rick Frenkel, who was then an associate at Irell & Manella.)

There is a suggestion in one brief that the reason for withdrawal may be related to a conflict with ISLLC "advisor" Greg Piccionelli, another Los Angeles lawyer. <Download PDF brief> Hard to know much more than that, since Judge Claudia Wilken has been all too obliging in allowing KVN lawyers to file all the documents relating to their withdrawal motion under seal. (Immersion successfully moved the case from state to federal court.)

Yesterday, Lemley was in Judge Wilken's courtroom in Oakland, making his case to withdraw. There have been three mediations, Lemley said; his client walked out on the last negotiation. Now KVN would even "be willing to waive our considerable fees until today to expedite the transfer."

Any takers?

Update: The patents are actually on "user interfaces," so they cover more than just joysticks. See U.S. Patent No. 5,889,672, entitled "Tactiley responsive user interface device and method therefor," and the even sexier U.S. Patent No. 6,275,213, "Tactile Feedback Man-Machine Interface Device."

Troll Tracker deposition will have to wait

Scott Harris asked for a hearing next Tuesday on his motion to force a speedy deposition out of Patent Troll Tracker blogger Rick Frenkel.

Not gonna happen. The judge ruled today that "an expedited hearing is not necessary." Harris' motion will get a hearing on May 13 in San Jose district court.

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.

Ward Jr. may have pursued Troll Tracker for months

Following up on the recent demise of the popular and controversial Troll Tracker blog: I've read T. John Ward, Jr.'s defamation complaint (link) against Patent Troll Tracker, thanks to Patently-O and the Zura 271 blog. Readers should note that it's an amended complaint. According to the case docket in Gregg County District Court (link), the case was originally filed as John Ward, Jr. v. John Doe et al. on Nov. 7, 2007, as a petition to depose someone at Google. I'm guessing that the goal was to discover Troll Tracker's identity. (Google hosted the anonymous blog.) Since then:

Jan. 24: Petition to depose granted.

Feb. 23: Troll Tracker reveals himself as Rick Frenkel, an IP director at Cisco Systems.

Feb. 27: Ward Jr. filed an amended complaint claiming defamation against Cisco and Frenkel.

March 3: Eric Albritton files a separate complaint against Cisco and Frenkel. I have not seen this one. (link to docket)

The two posts Ward objects to are dated Oct. 17 and Oct. 18 of last year; those posts are printed out and attached to the end of his complaint. If those printouts are accurate, Frenkel edited the language of his Oct. 18 post at some point, and acknowledged doing so; the language in the Ward Jr. complaint differs from my version, which I saved on Feb. 25, 2008.

The first two paragraphs of the Oct. 18 are the same in both the complaint and my copy:

I got a couple of anonymous emails this morning, pointing out that the docket in ESN v. Cisco (the Texas docket, not the Connecticut docket), had been altered. One email suggested that ESN’s local counsel called the EDTX court clerk, and convinced him/her to change the docket to reflect an October 16 filing date, rather than the October 15 filing date. I checked, and sure enough, that’s exactly what happened – the docket was altered to reflect an October 16 filing date and the complaint was altered to change the filing date stamp from October 15 to October 16. Only the EDTX Court Clerk could have made such changes.

Of course, there are a couple of flaws in this conspiracy. First, ESN counsel Eric Albritton signed the Civil Cover Sheet stating that the complaint had been filed on October 15. Second, there’s tons of proof that ESN filed on October 15. Heck, Dennis Crouch may be subpoenaed as a witness!

Here's the end of the Oct. 18 post per the Ward complaint (emphasis mine):

You can’t change history, and it’s outrageous that the Eastern District of Texas may have, wittingly or unwittingly, helped a non-practicing entity to try to manufacture subject matter jurisdiction. This is yet another example of the abusive nature of litigating patent cases in the Banana Republic of East Texas.

(n.b.: don’t be surprised if the docket changes back once the higher-ups in the Court get wind of this, making this post completely irrelevant).

And here's the end of my version (emphases mine):

You can’t change history, and it’s outrageous that the Eastern District of Texas may have, wittingly or unwittingly, helped a non-practicing entity to try to manufacture subject matter jurisdiction. Even if this was a "mistake," which I can't see how it could be, given that someone emailed me a printout of the docket from Monday showing the case, the proper course of action should be a motion to correct the docket.

(n.b.: don’t be surprised if the docket changes back once the higher-ups in the Court get wind of this, making this post completely irrelevant).

EDIT: You can't change history, but you can change a blog entry based on information emailed to you from a helpful reader.

So it looks like he got some more evidence and scaled down the tone a notch. Either way, it hardly sounds defamatory to me.

For the Oct. 17 Troll Tracker post, the version in the lawsuit matches my version exactly. You can read the relevant parts of that in my earlier post about Troll Tracker's demise, and Cisco's response.

Patently-O has links to other coverage, and the clearest description of the events at issue in the Ward v. Frenkel lawsuit, which involves the filing date of the ESN v. Cisco lawsuit. (link) If this is defamation... I don't even know where to begin. Ward files patent infringement lawsuits one minute after the stroke of midnight, and then sues when people think he filed a day too early? Obviously, this could have been cleared up without a lawsuit, but Ward Jr. hasn't been too communicative (he's never returned my calls, including one yesterday afternoon). The original complaint really was time-stamped 10/15, as noted on Patently-O, which would mean Ward's patent gun was shooting blanks.

Troll Tracker sued: Judge Ward's son is the plaintiff

The Daily Journal's Tuesday edition (not linkable) reports that Troll Tracker author Rick Frenkel, and his employer Cisco, have been sued for defamation by two East Texas attorneys who are players in that district's patent litigation scene, Eric Albritton and T. John Ward, Jr.

T. John "Johnny" Ward, Jr. is a Texas lawyer who has filed a large number of patent infringement lawsuits in recent years. Between January and mid-October of 2007, his name was attached to 54 separate lawsuits by my count; in all but four, he represented the plaintiff. He is also, as I reported in October, the son of Judge T. John Ward, the judge who is largely responsible for making the Eastern District of Texas a hotspot for patent litigation.

I haven't yet read the complaints. But I did re-read a copy of the Oct. 17, 2007 post two October posts that apparently inspired the lawsuits. (that's a small assumption on my part--but it's one of only a few posts that mentions Cisco and the only one I know of that mentions both Cisco and Ward & Albritton, and Craig Anderson's DJ story says the post is from October.) The Oct. 17 post is titled "Troll Jumps the Gun, Sues Cisco Too Early," and alleges that Ward & Albritton filed an amended complaint solely to change the filing date on a lawsuit where Cisco was a defendant.

The 10/17/08 Troll Tracker post begins:

Well, I knew the day would come. I'm getting my troll news from Dennis Crouch now. According to Dennis, a company called ESN sued Cisco for patent infringement on October 15th, while the patent did not issue until October 16th. I looked, and ESN appears to be a shell entity managed by the President and CEO of DirectAdvice, an online financial website. And, yes, he's a lawyer. He clerked for a federal judge in Connecticut, and was an attorney at Day, Berry & Howard. Now he's suing Cisco on behalf of a non-practicing entity.

I asked myself, can ESN do this? I would think that the court would lack subject matter jurisdiction, since ESN owned no property right at the time of the lawsuit, and the passage of time should not cure that. And, in fact, I was right:

(he goes on..)

Of course, Frenkel works for Cisco, as we now all know. So it's unlikely that he was actually, as he says, "getting [his] troll news from Dennis Crouch now." I'd guess he was well aware of the ESN lawsuit. Still, he was careful to write about it after Patently-O author Crouch, who reported the same basic facts: that the ESN v. Cisco patent infringement lawsuit was filed on 10/15/2007, a day before the patent in question was actually issued, thus "jumping the gun." Crouch didn't mention the amended complaint, which hadn't yet been filed.

In this subsequent motion, Ward and Albritton say they filed the ESN v. Cisco lawsuit at 12:01am Central Time on 10/16, and that Cisco filed suit in Connecticut ten and a half hours later, at 11:32am EST 10/16. They insisted the case should be kept in Texas. , but then apparently changed their minds--they stipulated to dismissal on Nov. 2.

The PACER entry does list 10/15/07 as the date he lawsuit was filed, but the first document--the complaint--is listed as being filed on 10/16.

Back to the Troll Tracker 10/17 post:

One other interesting tidbit: Cisco appeared to pick up on this, very quickly. Cisco filed a declaratory judgment action (in Connecticut) yesterday, the day after ESN filed its null complaint. Since Cisco's lawsuit was filed after the patent issued, it should stick in Connecticut.

Perhaps realizing their fatal flaw (as a couple of other bloggers/news items have pointed out), ESN (represented by Chicago firm McAndrews Held & Malloy and local counsel Eric Albritton and T. Johnny Ward) filed an amended complaint in Texarkana today - amending to change absolutely nothing at all, by the way, except the filing date of the complaint. Survey says? XXXXXX (insert "Family Feud" sound here). Sorry, ESN. You're on your way to New Haven. Wonder how Johnny Ward will play there?

And how will a Silicon Valley lawyer who referred to East Texas as a "Banana Republic" play in Longview? Albritton and Ward Jr. have probably hauled enough Californians into court to know the answer to that one.

UPDATE: A Cisco spokesperson asked me to add their statement on this issue:

"The parties have mutually agreed to make no comment  on the lawsuit in question at this time. That said, we would like to  underscore that the comments made in the employee's personal blog represented  his own opinions and several of his comments are not consistent with Cisco's views. We continue to have high regard for the judiciary of the Eastern  District of Texas and confidence in the integrity of its  judges."

I should also add that the only place I have seen the "Banana Republic" comment thus far is in today's Daily Journal. Craig Anderson writes: "In the October posts at issue in the complaints, Frenkel accused the court of conspiring with the company, on whose behalf the Texas lawyers had filed the patent infringement lawsuit at issue, and referred to the court as 'the Banana Republic of East Texas.'"

It does not appear in my version of the TT posts, which were saved on Feb. 25. But there is a notation that indicates the October 18 post was edited later. I may post up relevant portions of other posts at a later date, but I'm going to hold off until I'm clear on what the accusations are.

UPDATE again:  This post has gotten a lot of attention. (Can't read Troll Tracker, work sucks, what're you going to do?) I'll write more on this soon. Meanwhile my colleague Zusha Elinson at The Recorder has a bit more on Cisco and Troll Tracker here.