The Prior Art

"Patent Trolls" — with them or against them?

Folks are choosing sides—first Howrey LLP (against), and now a veteran IP executive (against). Hat tip to Joff WIld's IAM blog for this one.

Dan McCurdy's new company, PatentFreedom, is an online community for companies to get and share intelligence about the non-practicing entities some critics call “patent trolls.” Membership is limited to “operating companies” with over $100 million of revenue that’s not from licensing, enforcing, or selling patents or other intellectual property. (Such revenue sometimes comes from the sale of “products,” which can be found on the shelves of most stores not located in North Korea.)

“Patent trolls know a lot about operating companies,” McCurdy told me today. Their targets, conversely, frequently know nothing at all. “Are they the only company being approached, or one of a thousand? Who funds them? How well funded they are?”

PatentFreedom will fill that void both with its own research and by creating a community where operating companies can exchange information, anonymously, if they desire.

But in order to found the new company, McCurdy will have to split from ThinkFire, the company he co-founded with Intellectual Ventures chieftain Nathan Myhrvold in 2001. The reason? Worries about conflicts of interest.  ThinkFire has an IP consulting and brokerage practice, as well as a group that provides licensing and litigation support to companies asserting patents, many on a contingency basis. It also helps companies defend against patent-infringement claims, billing hourly, like a law firm.

Also like most big law firms, ThinkFire plays both patent offense and patent defense. But PatentFreedom’s "fight-them-trolls" business model was too much; shortly before the April 14 launch, ThinkFire’s board decided it couldn’t play both sides on this one, and decided it will spin off  PatentFreedom as a separate company. McCurdy will officially move over to PatentFreedom in July.

Says McCurdy: “ThinkFire made the decision that it was not in its clients’ best interest to constrain the kind of advice that ThinkFire might be able to give to them, simply to meet the needs of PatentFreedom.”

Fear of conflicts, and perhaps hope for a competitive edge, already caused law firm Howrey LLP to actually agitate against so-called “patent trolls,” like the one pictured above, in its ads, as The Recorder reported in March. (free reg. required)

While we talked, McCurdy tapped into his database from his home office in Pennsylvania, browsing through electronic dossiers on—get ready—94 non-practicing entities, 249 affiliates, and more than 4,700 patents they’re known to hold. (Way more than the shuttered Patent Troll Tracker!) But McCurdy says he has no grudge against NPE’s; he’d just rather beat ‘em than join ‘em.

“When I walk into a cocktail party, I feel much better about myself saying that what I do is help companies defend themselves against NPE’s, or ‘patent trolls,’ than saying ‘I attack companies with patents I bought,’” he says. “I’m not saying that NPE’s are wrong… they have every right to pursue what they’re pursuing.” But targeted companies deserve tools that “at least somewhat equalize the playing field.”

So far close to 10 companies have joined, all “household names,” says McCurdy, and all confidential. He expects up to 20 by the time he officially leaves ThinkFire in July, and 50 members by year’s end.

Annual membership starts at $50,000. (Might make you feel like a subscription to IP Law & Business is a real bargain.)

What I don't get about in re Bilski: Why do any financial companies support business method patents?

What I don't get about the in re Bilski case argued Thursday at the Federal Circuit is this—why is there any division at all within the financial sector? The lines are a lot fuzzier than, say, the patent reform battle in D.C., which was Big Tech v. Big Pharma but became Big Tech v. Big Pharma et al.

But why would Goldman Sachs, see recent Economist, or any other financial services business, support business method patents? Or American Express and Accenture, as Mike Masnick notes? Seems like they all stand to lose much more than they gain from patent licensing and litigation, with the threat of another non-practicing entity like DataTreasury. From an industry-wide perspective, the relatively recent arms race doesn't make sense. (and of course the big banking industry trade group came out critical of State Street). So why would any (profitable) financial company be opposed to rolling back the 1998 State Street decision that allowed business method patents?

Are there some banks that have amassed giant arsenals—the Microsoft(s) of the banking world? (Microsoft had less than a dozen patents before the 1998 State Street decision, and now has thousands, according to a former IPLB reporter who was inside the Microsoft war room a year ago.)

Is there a giant settlement, or license agreement, or some other indicator of corporate behavior that would indicate why a particular financial company has a pro-BM patent standpoint? Who are the winners and losers of the first 10 years of biz-meth patent war? Who were the aggressors, the victims? I haven't been in the patents game long enough to know, but I'd sure be interested to talk to some lawyers or bank employees or anyone who thinks they know the real story of the stance of any particular company that has a Bilski amicus brief (like maybe the one they work for.) Litigation, licensing, everything. Let's start collecting the data.

On today's oral arguments, there's legal-geek commentary from an eyewitness here (via 271 blog, with more Bilski argument links). My own article on Bilski (with extras here) focused on issues outside the legal arguments entirely, but I still like linking to it and it has a cool picture.

PTT update: Long day closing our June issue delayed today's fourth post in my four-part series on the lawsuits against and subpoena of lawyer-blogger (and, perhaps, reporter) Patent Troll Tracker. I need a real weekend but that one is coming early next week.

(download Bilski oral arguments on the Fed. Circuit site)

Highlights from the May issue

The May issue of IP Law & Business is out. The cover story profiles 50 top IP people  under 45, and is available online. (free registration required)

More highlights from the May issue (subscribers only):

• Patent bar to E.D. Tex: enough is enough. AIPLA has filed a brief urging the U.S. Court of Appeals for the 5th Circuit to force East Texas judges to transfer more cases out of the district. It's an effort to head off more heavy-handed venue reform that could come from Congress, but there are already early signs that the local judiciary is thinking of ways to keep the patent docket heavy even if they lose this case, which involves a product liability lawsuit against Volkswagen.

• Keyword-advertising showdown in Manhattan: Google brings in the big guns, hoping for a solid win at the 2nd Circuit to make it clear that selling trademarked keywords is perfectly legal, pro-consumer—and not so different than traditional advertising practices.

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, 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>

Behind Bilski: State A-G says Bilski's inventions were a raw deal for consumers

Illustration from the IP Law & Business print edition, courtesy Matt Faulkner.

What kind of business methods can become "property?" Patent lawyers will fight that one out in May at the U.S. Court of Appeals for the Federal Circuit. Amicus briefs are due shortly: over the next week, we can expect a barrage of legal briefs regarding In re Bilski; or more completely, In re Bernard L. Bilski and Rand A. Warsaw. The patent case is likely to have a big impact on business method and software patents; the case is being closely watched by the patent bar and has garnered some mainstream press coverage as well.

A very different debate over business methods and intellectual property is going on in St. Paul, Minnesota, but Bilski and his co-inventor Warsaw are at the heart of that one, too. Investigators at the Minnesota Attorney General's office say that WeatherWise USA, the company they co-founded in 1996, devised billing programs that helped two local energy companies dodge state regulators and overcharge consumers by $33 million.

The full story is published in the April issue of IP Law & Business.

On this blog, I'll write a few "Behind Bilski" posts to take a more in-depth look at the people and organizations that have a stake in the Bilski case.

Today: The view from Minnesota, and that state's connection to WeatherWise.

In February 2007, Minnesota Attorney General Lori Swanson filed a complaint at the state's Public Utilities Commission against Xcel Energy and CenterPoint Energy, which both have contracts with WeatherWise to provide fixed-price billing programs for natural gas customers. (OAG Complaint)

State attorneys say WeatherWise set the rates in both programs, severely overcharging consumers through programs that were marketed and promoted in a misleading way. One customer saw her gas bill jump from 79 cents to $4.18 per day after joining Xcel's program, and wasn't allowed to cancel; an 88-year-old fixed income Xcel customer had a July gas bill of $221, or $7.13 per day, and wasn't allowed to get out of the program until "after she passed away. (see OAG complaint, pgs. 4-7)

According to the PUC, WeatherWise provided marketing assistance to both companies, helping to set up the call centers that enrolled customers and assisting with promotional materials. However, WeatherWise is not a named party in the PUC complaint; state utility regulators have no authority over them.

Lawyers at Attorney General Swanson's office declined to comment on the ongoing investigation. In October, Xcel Energy was ordered to hand over tape recordings of conversations between fixed-bill customers and a call center apparently operated by "WeatherWise or its agents." (OAG 8/21/07 comments, p. 14)

The energy companies are admittedly ignorant about WeatherWise's methodology, which the company keeps secret. “The Commission should not permit the underlying mechanisms of these programs to remain shrouded in secrecy," wrote Swanson. "If the programs cannot be operated with transparency, they should not operate at all.” (OAG Complaint, p. 14)

According to the A-G's complaint:

• CenterPoint Energy first contracted with WeatherWise in 2001, when Bernard Bilski was still CEO. (he left the company in 2003, when Rand Warsaw took over). In 2005-06, customers in CPE's “No Surprises Bill” program paid an average of $296 more than they would have under standard billing.
• Xcel Energy ran a WeatherWise program for only one year, fiscal 2005-06. Xcel customers whose rates were set by WeatherWise paid an average of $682.76 more than they would have otherwise.

The $26 million over-charge cited in the original complaint didn't include Xcel's overcharge of about $7 million; hence the $33 million total. (PUC Staff brief, May 2007)

The PUC ordered the programs shut down in July. (PUC order, 7/16/07)

WeatherWise CEO Rand Warsaw says the high charges were the result of a streak of mild weather, and the company has done nothing wrong. Energy company clients are able to audit WeatherWise’s data, and they’ve handed over everything the A-G has asked for. “Every dime of our transactions are accountable and explainable by weather and price,” he told me in a recent interview.  “All of this has been explained in Minnesota. There is no data that we have not made available.”

Warsaw wrote to the PUC chairman in July 2007 promising cooperation, but did worry that “any disclosure of our methods or modeling information to the public could diminish some or all of the value of our intellectual property.” (Warsaw's letter)

State attorneys saw it differently. Swanson said WeatherWise “knew full well it was a focus of the investigation, [and] a major reason for delay, and that the OAG would be in contact with WeatherWise to receive more data.” (Footnote, pgs. 6-7, A-G's 8/21/07 comments)

Consumer advocates say letting an out-of-state private company set rates allowed energy companies to profit while dodging state regulators.

“It really made rate-making a secret process for this little group of people,” said Chris Duffrin, Assistant Director of Minnesota’s Energy CENTS Coalition. “WeatherWise sets an inflated amount of usage, to make sure that the gas company doesn’t lose money. It’s a premium program, but they don’t really market it that way—that’s part of the problem.”

The Public Utilities Commission meets this Thursday, April 3, to review the status of the investigations.

More on the case:

• Minnesota case dockets, search for docket numbers CI-07-541 and CI-07-542
• Pittsburgh's Webb Law Firm, representing Bilski, has a page with the relevant briefs
• The Board of Patent Appeals 2006 rejection of the Bilski application
• WeatherWise does hold one patent, on their EnerCheck conservation system
• Bilski, Warsaw, and four other WeatherWise employees are named as inventors on two other pending patent applications related to "capped billing" systems; one filed in 2002 and the other in 2003.

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.

Patent Troll Tracker revealed to be a Cisco IP lawyer

The long-mysterious Troll Tracker revealed himself over the weekend, as Rick Frenkel, an IP executive at Cisco Systems and former litigator at Irell & Manella.

In his Saturday post, Frenkel said he was going public after someone threatened to reveal his identity.

More coverage: best story is from my newsroom colleague at the Recorder; the Wall Street Journal followed us here; both Frenkel's admission and Patently-O have comments aplenty.

Frenkel assumed it was someone out to collect Ray Niro’s bounty on him, originally reported in IPLB and later knocked up to $15,000, but Niro tells us the bounty remains uncollected.

Today Frenkel had no comment beyond his post. Cisco says nobody at the company knew about his double identity beyond Mallun Yen, Frenkel’s boss and the company’s VP of Intellectual Property. She was profiled by ALM in 2005.

Cisco, of course, is a big player in the Coalition for Patent Fairness; general counsel Mark Chandler continues to be front and center in the push for patent reform. Almost a year before he started his blog, Frenkel shared some of his thoughts on patent and patent trolls at a technology forum.

The patent-holding companies that Frenkel has been denouncing will no doubt cry foul, pointing out that the writer who declared he was “Just a lawyer, interested in patent cases, but not in publicity” was disingenuous, at least.

Frenkel’s revelation raises more interesting questions (for one, this journalist-turned-blogger doesn’t know how one person can write so much on top of a full time job). I enjoyed both communicating with the tracker's enemies and the mystery of the blog itself; with the mystery solved, the IP beat will be a little less fun.