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.
"[Frenkel] says the complaint was altered to change the filing date," Ward told the jury on Wednesday afternoon, referring to a claim filed by Albritton client ESN in October 2007 against Cisco that is at the heart of the case. "There's no doubt in my mind that what he was writing right there was a crime. That would be like me scratching it out, or conspiring with the clerk, to scratch it out."
Ward and Albritton maintain that their requests for the date change were simply an attempt to correct a glitch. The "filing date" was never changed, said Ward, and Frenkel effectively accused him of "major wrongdoing" by saying it was.
"I remember Eric being in my office, and we pulled up the blog to look at it, and we were both just incredulous," Ward said. "We came up with a plan: 'Let's get this shut down.' That was our first reaction."
"I knew I had clients and fellow lawyers who were reading the blog," Ward said. "People were talking about it. It infuriated me."
Defense lawyer Charles "Chip" Babcock asked why Ward didn't try sending Frenkel, blogging anonymously at the time, an email with his complaint. Ward said he refused to engage with the Troll Tracker on his "home turf."
"You don't wrestle with a snake, you cut its head off," said Ward. "We shut the blog down, is what we did."
"You shut the blog down. And that was your objective, of course," said Babcock.
"It was my objective to get those articles [down]," said Ward.
Ward, the son of federal Judge T. John Ward, has filed more than 100 patent lawsuits against hundreds of defendant companies in the past few years. Many of Ward's claims are made on behalf of patent-holding companies whose only business is patent enforcement. Such companies are colloquially known as "patent trolls." (Ward said Wednesday that "90 to 95 percent" of his work was on a contingent fee basis.) On his blog, Frenkel wrote about patent-holding companies and their lawyers. Albritton and Ward were frequently mentioned.
Albritton, who took the stand Thursday morning, locked eyes with the jury while repeating his accusation that though changing the date on the court docket was an innocent act, Frenkel and Cisco had called him a "criminal."
"This has affected me," said Albritton. "Maybe it shouldn't. I'm sure Cisco thinks I'm thin-skinned. I feel like the world thinks I'm not honorable, at least, people that don't know me. I'm humiliated by it. I've had sleepless nights."
Albritton, who in the suit seeks punitive damages against Cisco as well as damages for "mental anguish," says the accusations affected his work on the patent infringement suit at the heart of this dispute, ESN v. Cisco, as well as on many other lawsuits.
"There are days I've got ten hours of work to do and I can only get five hours of work done," said Albritton, removing his glasses and wiping his eyes. "They should be punished for what they did. Not only did they not apologize, they want to keep calling me a criminal [by arguing the posts are true.]"
Albritton also said he was enraged to learn that Cisco was supporting the blog. (E-mails unearthed during discovery reveal that Frenkel's immediate supervisor, Cisco patent chief Mallun Yen, as well as former company PR man John Noh, both knew about his "Troll Tracker" alter ego.)
"Before this lawsuit was filed, Cisco was saying in the newspaper, in effect, that Frenkel was freelancing," said Albritton. "Only by filing this lawsuit has the world been able to find out….that Frenkel wasn't up to this on his own. Nobody in the world, until this trial got started, got to see how dirty they are."
Defense lawyer Babcock pointed out that the word "criminal" wasn’t anywhere in the two posts. He asked Albritton if his view that the Patent Troll Tracker blog had labeled him a "criminal" wasn't a matter of opinion. Albritton denied there could be any doubt.
"It does call me a criminal," said Albritton. "There's no legitimate dispute."
"That's your position," said Babcock.
"It's the truth!" said Albritton. “Truth is truth in East Texas, Mr. Babcock.”
Frenkel's lawyer, George McWilliams of Texarkana, asked Albritton whether his legal practice—hundreds of patent infringement allegations on behalf of patent-holding companies—wasn't a subject of legitimate debate. During his stint on the witness stand, Frenkel testified that he launched his blog after developing an interest in the practice, of which he was critical.
"Is there not also a part of this debate that talks about companies that sue other companies when the plaintiffs—the ones that do the suing—don't make anything?" asked McWilliams. "They don't have any employees, or any assets, they just have a patent?"
"I'm sure there are lots of people who get sued who wish they didn't get sued by anyone, including people who don't manufacture products," said Albritton.
"Isn't it true that on behalf of your clients you have sued over 100 companies in the Eastern District alone this year?" asked McWilliams.
"I don't know....that could be a possibility," Albritton said, adding that the cases he takes on are evenly split between plaintiffs and defendants. When asked about his clients, he listed IBM, Apple, and Aloft Media, which he described as a "small company owned by an inventor."
Albritton did not identify the "inventor" behind Aloft, San Jose patent lawyer Kevin Zilka. Zilka, whose "small company" has the same address as Albritton's law office, has sued more than 50 technology companies for patent infringement in East Texas since early 2008.
Ward and Albritton maintain that their requests for the date change were simply an attempt to correct a glitch. The "filing date" was never changed, said Ward, and Frenkel effectively accused him of "major wrongdoing" by saying it was.
"I remember Eric being in my office, and we pulled up the blog to look at it, and we were both just incredulous," Ward said. "We came up with a plan: 'Let's get this shut down.' That was our first reaction."
"I knew I had clients and fellow lawyers who were reading the blog," Ward said. "People were talking about it. It infuriated me."
Defense lawyer Charles "Chip" Babcock asked why Ward didn't try sending Frenkel, blogging anonymously at the time, an email with his complaint. Ward said he refused to engage with the Troll Tracker on his "home turf."
"You don't wrestle with a snake, you cut its head off," said Ward. "We shut the blog down, is what we did."
"You shut the blog down. And that was your objective, of course," said Babcock.
"It was my objective to get those articles [down]," said Ward.
Ward, the son of federal Judge T. John Ward, has filed more than 100 patent lawsuits against hundreds of defendant companies in the past few years. Many of Ward's claims are made on behalf of patent-holding companies whose only business is patent enforcement. Such companies are colloquially known as "patent trolls." (Ward said Wednesday that "90 to 95 percent" of his work was on a contingent fee basis.) On his blog, Frenkel wrote about patent-holding companies and their lawyers. Albritton and Ward were frequently mentioned.
Albritton, who took the stand Thursday morning, locked eyes with the jury while repeating his accusation that though changing the date on the court docket was an innocent act, Frenkel and Cisco had called him a "criminal."
"This has affected me," said Albritton. "Maybe it shouldn't. I'm sure Cisco thinks I'm thin-skinned. I feel like the world thinks I'm not honorable, at least, people that don't know me. I'm humiliated by it. I've had sleepless nights."
Albritton, who in the suit seeks punitive damages against Cisco as well as damages for "mental anguish," says the accusations affected his work on the patent infringement suit at the heart of this dispute, ESN v. Cisco, as well as on many other lawsuits.
"There are days I've got ten hours of work to do and I can only get five hours of work done," said Albritton, removing his glasses and wiping his eyes. "They should be punished for what they did. Not only did they not apologize, they want to keep calling me a criminal [by arguing the posts are true.]"
Albritton also said he was enraged to learn that Cisco was supporting the blog. (E-mails unearthed during discovery reveal that Frenkel's immediate supervisor, Cisco patent chief Mallun Yen, as well as former company PR man John Noh, both knew about his "Troll Tracker" alter ego.)
"Before this lawsuit was filed, Cisco was saying in the newspaper, in effect, that Frenkel was freelancing," said Albritton. "Only by filing this lawsuit has the world been able to find out….that Frenkel wasn't up to this on his own. Nobody in the world, until this trial got started, got to see how dirty they are."
Defense lawyer Babcock pointed out that the word "criminal" wasn’t anywhere in the two posts. He asked Albritton if his view that the Patent Troll Tracker blog had labeled him a "criminal" wasn't a matter of opinion. Albritton denied there could be any doubt.
"It does call me a criminal," said Albritton. "There's no legitimate dispute."
"That's your position," said Babcock.
"It's the truth!" said Albritton. “Truth is truth in East Texas, Mr. Babcock.”
Frenkel's lawyer, George McWilliams of Texarkana, asked Albritton whether his legal practice—hundreds of patent infringement allegations on behalf of patent-holding companies—wasn't a subject of legitimate debate. During his stint on the witness stand, Frenkel testified that he launched his blog after developing an interest in the practice, of which he was critical.
"Is there not also a part of this debate that talks about companies that sue other companies when the plaintiffs—the ones that do the suing—don't make anything?" asked McWilliams. "They don't have any employees, or any assets, they just have a patent?"
"I'm sure there are lots of people who get sued who wish they didn't get sued by anyone, including people who don't manufacture products," said Albritton.
"Isn't it true that on behalf of your clients you have sued over 100 companies in the Eastern District alone this year?" asked McWilliams.
"I don't know....that could be a possibility," Albritton said, adding that the cases he takes on are evenly split between plaintiffs and defendants. When asked about his clients, he listed IBM, Apple, and Aloft Media, which he described as a "small company owned by an inventor."
Albritton did not identify the "inventor" behind Aloft, San Jose patent lawyer Kevin Zilka. Zilka, whose "small company" has the same address as Albritton's law office, has sued more than 50 technology companies for patent infringement in East Texas since early 2008.
The jury is likely to get the case on Tuesday.
More on the trial:
- Rick Frenkel takes the stand (The Prior Art, 10/17/09)
- Opening statements (The Prior Art, 10/15/09)
- The Patent Troll Tracker posts in question
- Patently-O on the trial
- Albritton v. Cisco docket at Justia.com
- Ward v. Cisco docket at Justia.com
Photo: Wikimedia / Postdlf
I wonder if, outside of East Texas, harm to Ward and Albritton's reputations could be worth over $1 in damages?
Posted by: Scott | September 18, 2009 at 09:10 PM
Well, the filing date DID change, per my understanding. If changing it was an innocent attempt to fix a glitch, how can it also be a crime?
So far, he's the only one I've ever seen refer to the change as "criminal."
Before this, I figured he was just a crafty lawyer. Because of his lawsuit and his conduct during the lawsuit, I now believe the man is a sleazebag. And if that word has any literal meaning, please note that I mean it in the hyperbolic sense.
Frankly, there are lots of other words I want to use to describe that person, but I don't wish to drag myself down to his level.
Posted by: IDBIIP | September 19, 2009 at 03:40 AM
FYI for the readership: What appears to be left out of the discussion is the overarching PR campaign by CISCO et al to manufacture a 'crisis' in the US patent system to (a) get a venue provision into the US code to would allow patent enforcement only in the home court of the defendant and (b) create a perception that the public was hostile to US patents so that the USPTO would feel a need to respond with a more aggressive reading the of the current patent reexamination statutes. But for the suit we are commenting on - the world would have never definitively known that CISCO et al - in addition to the full court press on capital hill, the courts and the executive branch - was manufacturing and feeding the 'public outrage' ergo the need for legislative, judicial and executive intervention in the US patent system. Create a blog innuendo, engage the blog-o-sphere for comment and take the comments as 'evidence' to capital hill to demonstrate the public outrage - working like a champ until you see the party behind the blog.
Posted by: iwasthere | September 19, 2009 at 08:42 AM
Just to comment back to iwasthere, I thought I'd add a quick-devil's advocate point.
As a member of the general public, why should I care who was behind the blog? It's well known that Microsoft hires people to do "grass roots" PR campaigns for them, and that's not criminal.
Sure, now we know Cisco supported this blog - but it doesn't change the fact that the date was changed on the filing.
If there should be any public outrage, it should be against the stupidity that this case was brought in the first place, and that a blogger who was reporting on public information should be silenced (no matter who was behind him.)
Posted by: Anthony | September 19, 2009 at 09:15 AM
@iwasthere the public outrage over patents has been there a lot longer than this case. Your living in a dream world if you think people involved in the tech industries actually like patents. The fact that software developers are being told not to look at patents as that alone can pose a substantial risk to the company is proof enough to me that the system has failed.
Patents are not the repository of knowledge they were supposed to be, but just a big stick with which criminals like Ward and Albritton can extort money out of real innovators.
It didn't take Troll tracker for people to come to that conclusion. Just watching good companies being attacked by patent troll scum was enough.
Posted by: slink | September 19, 2009 at 09:51 AM
Hmmm. So it sounds like he was trying to shut down free speech that is critical of their activity as representatives of trolls. Well they seemed to have done a good job of shutting that down.
Oh, and, it looks like he’s going to make a few bucks along the way.
Hmmm, he’s a lawyer without a product (e.g. a real legal) claim and he’s going to get money out of a real company (Cisco) from an East Texas jury. Where have I heard this before?
Posted by: ItsAllAboutTheMoney | September 21, 2009 at 07:48 AM
This reminds me of The New York Times v. Sullivan ( http://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan ), a classic '60s case where the Times was sued for publishing an ad that exposed Southern institutionalized racism, and the local yokels got a biased jury decision against them; it took the Supreme Court to correct this. In this case, the plaintiff is similarly playing to local prejudices against those mean outsiders who dare to call the place a "banana republic". Will it take another landmark Supreme Court decision to vindicate the First Amendment?
Posted by: Dan Tobias | September 22, 2009 at 05:35 AM
I am curious to find out Is Mc William believes also:" Is there not a part of this debate that talks often about large companies stealing the intellectual property of tiny companies that for only assets have just a patent?"
Posted by: Morano | September 23, 2009 at 03:16 AM