There are three "versions" of posts in question in the Troll Tracker trial that are allegedly defamatory: a post dated October 17, 2007; an original post dated October 18, 2007; and an edited, "toned down" post dated October 18, 2007.
Plaintiffs Eric Albritton and Johnny Ward claim all three posts are defamatory. Rick Frenkel and Cisco Systems say the posts are a mix of true facts and Constitutionally protected opinion.
Frenkel has apologized in court for using the inflammatory phrase "Banana Republic of East Texas" in the original version of the Oct. 18 post. That phrase was deleted from the post about 24 hours after it was published, says Frenkel.
Wednesday, October 17, 2007
Troll Jumps the Gun, Sues Cisco Too Early
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:
A declaratory judgment of "invalidity" or "noninfringement" with respect to Elk's pending patent application would have had no legal meaning or effect. The fact that the patent was about to issue and would have been granted before the court reached the merits of the case is of no moment. Justiciability must be judged as of the time of filing, not as of some indeterminate future date when the court might reach the merits and the patent has issued. We therefore hold that a threat is not sufficient to create a case or controversy unless it is made with respect to a patent that has issued before a complaint is filed. Thus, the district court correctly held that there was no justiciable case or controversy in this case at the time the complaint was filed. GAF contends, however, that the issuance of the '144 patent cured any jurisdictional defect. We disagree. Later events may not create jurisdiction where none existed at the time of filing.
GAF Building Materials Corp. v. Elk Corp. of Texas, 90 F.3d 479, 483 (Fed. Cir. 1996) (citations and quotations omitted).
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?
Original Post: Thursday, October 18, 2007
ESN Convinces EDTX Court Clerk To Alter Documents To Try To Manufacture Subject Matter Jurisdiction Where None Existed
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!
You can't change history, and it's outrageous that the Eastern District
of Texas is apparently, wittingly or unwittingly, conspiring with 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
Modified Post: Thursday, October 18, 2007
"conspiring with" changed to "helped," and "Banana Republic" phrase is deleted.
...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.
EDIT: You can't change history, but you can change a blog entry based on information emailed to you from a helpful reader.