Patent Litigation Weekly: Inventor from ESN v. Cisco and Troll Tracker Lawsuits Arrested on Weapons Charges

The inventor who holds the patent that was at the heart of two libel lawsuits against "Patent Troll Tracker" blogger Rick Frenkel and Cisco Systems was arrested last week, after police found an illegal stockpile of firearms, ammunition, and grenades in his home in Manchester, Massachusetts, about 30 miles from Boston. Gregory Girard, named inventor on U.S. Patent No. 7,283,519, believed he was readying himself for "Armageddon," according to police. In addition to having around 20 firearms, Girard was stockpiling food and medicine, camouflage, and body armor, and had built an indoor shooting range in the attic of his condominium, according to accounts of the arrest in the Gloucester Daily Times and the Boston Globe. Girard had a license for the guns, but his explosives, double-edged knives, and habit of shooting indoors are all illegal.

Last Wednesday, a Massachusetts superior court judge deemed Girard too dangerous to be released and ordered him held until his probable cause hearing on March 15. According to police reports, Girard recently told his wife: "It's fine to shoot people in the head because traitors deserve it," and "Don't talk to people, shoot them instead." (His wife reported concerns about his increasingly paranoid behavior to authorities the day before he was arrested.) For Girard, those "traitors" may have included most members of Congress; news blog TPM Muckraker notes that Girard has been an active poster in far-right Internet forums for the past month.

In 2007, Girard's patent was the basis of an infringement suit that his holding company, ESN, filed against Cisco Systems. For ESN, it was a hugely important suit; one of ESN's lawyers later testified that his client was seeking "potentially hundreds of millions of dollars" from an East Texas patent win against Cisco.

Frenkel, then a Cisco in-house lawyer blogging anonymously as the Patent Troll Tracker, wrote two posts about the case, ESN v. Cisco, in late 2007, criticizing ESN and two of its East Texas lawyers: Eric Albritton and T. John Ward, Jr, who do a lot of work for the kind of patent-holding companies often derided as "patent trolls"--shell companies with no products, no employees, and no business other than filing patent lawsuits. In one post, Frenkel claimed that ESN had "jumped the gun" by suing Cisco one day before its patent had even issued, and accused Albritton of improperly asking the court clerk to alter the filing date of the ESN lawsuit.

In 2008, after Frenkel was forced to reveal his identity as the Patent Troll Tracker, Albritton and Ward filed libel lawsuits against him and Cisco, claiming Frenkel's blog posts about ESN v. Cisco were defamatory. As The Prior Art has chronicled, Albritton's claims were heard in a closely-watched trial last September. (See PTT trial coverage part 1, 2, 3, 4)

Greg Girard did come up at the libel trial—but not as an Armageddon-fearing weapons hoarder. Instead, ESN's lawyers praised Girard as a brilliant individual inventor—the cornerstone of American innovation. George McAndrews, a founding partner of McAndrews, Held & Malloy and one of the lawyers representing ESN in the suit against Cisco, praised Girard in a letter to Cisco general counsel Mark Chandler: "Mr. Girard is exactly what the founding fathers had in mind when they penned the Patent Clause in the basic Article I of the U.S. Constitution." Frenkel's use of the term "Patent Troll" to describe ESN was "outrageous," wrote McAndrews. "Thomas Jefferson and Ben Franklin, both individual inventors like Mr. Girard, were also not manufacturers in the traditional sense," the letter said. "To call Mr. Girard and his company 'Patent Trolls' and to accuse him and his legal counsel of criminal activity is irresponsible, unfair and defamatory."

The Albritton trial ended with an abrupt confidential settlement before the case reached the jury. (In court, a tearful Albritton testified that his calls to the court clerk were to "correct" the docket, not to doctor the filing date.) Ward's libel case also settled on confidential terms earlier this month. 

ESN v. Cisco, meanwhile, was thrown out of an East Texas court in late December 2009, when federal district court Judge David Folsom ruled that the patent was actually owned by Girard's former employer, a small telecom company called Iperia. Last month, ESN's lawyers at the McAndrews Held firm filed a notice that they will appeal Judge Folsom's dismissal of the suit. (McAndrews Held is also the firm that prosecuted Girard's patent application; it is handling the case against Cisco on contingency.)

The co-owner of ESN, a Connecticut attorney named Brian Hollander refused to answer questions about Girard's arrest when contacted Thursday by The Prior Art. "I don't think it has anything to do with anything," he said. "I'm not going to talk about it." Hollander was equally circumspect about the Cisco suit, saying only, "It's not over—the case is not over." 

Charles Verhoeven, the Quinn Emanuel lawyer who represented Cisco in the ESN case (and has had a few big successes in East Texas lately), deposed Girard in the litigation, but said he noticed nothing unusual about the inventor's behavior. Verhoeven only found out about Girard's arrest from news reports that a colleague brought to his attention. 

Despite the sideshow of the Patent Troll Tracker blog posts and the libel suits, Verhoeven's strategy for winning the case for Cisco focused on the facts surrounding the assignment of Girard's patent. He discovered that Girard had signed an employment agreement, which included an invention-assignment clause, before starting work at Iperia, the telecom company that employed him in April 2001. That's when Girard filed a provisional patent application, which ultimately became the '059 patent.

With evidence in hand that Iperia, rather than Girard, owned the rights to the '059 patent, Cisco negotiated to purchase the patent for $500,000--which included a $200,000 "kicker" if the purchase ultimately held up in court. Iperia's former CEO, who is a friend of Girard, filed a declaration stating that he was fine with Girard's patenting activity and that it wasn't covered by the employment agreement. But Judge Folsom disagreed, finding that Girard's invention was in an area of technology quite similar to Iperia's. Any oral agreement between Girard and Iperia's CEO was ultimately less important than Girard's written agreement to give Iperia rights to his inventions, he ruled. (Here is Judge Folsom's order.)

"This is something defendants should be looking at in every NPE case," said Verhoeven, using the acronym for "non-practicing entity," a euphemism for patent troll-style companies. "Often, the patents have been transferred not once, but two or three times. There's a risk that those transfers haven't been done appropriately."

Give Girard a break. It's tough to double-check all your documents and build a weapons stockpile at the same time.

Photo: Manchester Police Department

 

Comments

[Kyle Fleming]

Hmmm, I think I might have a patent on stockpiling food, medicine, camouflage, body armor, weapons and building an indoor shooting range in preparation for Armageddon.

Of course, I am a NPE when it comes to this.

[Wesley Franklin]

Why did you fail to report that Judge Folsom found that because Verhoeven personally was responsible for "willful disobedience, gross indifference to the right of the adverse party, deliberate callousness, or gross negligence" for withholding "timely production of [Girard's] Employment Agreement", Cisco was fined $100,000. Given this description of the behavior Verhoeven will engage in to try to win a case, dare I suggest he wrote the last sentence in your story. You deserve to be fired for such irresponsible reporting. By the way you would have seen that the dismissal is on appeal to the Federal circuit if you had looked at the District Court Docket.

[Gena777]

This Patent Troll Tracker case has legs. I thought it was melodramatic before, but this latest item tops it all. Good thing they got this guy before he became the central player in another patent law murder case -- like the recent one in which a university staffer killed her colleagues to protect her IP rights. Sounds like Girard is paranoid and unhinged enough to have pulled off a similar act.
http://www.GeneralPatent.com

[Joe Mullin]

Wesley Franklin, thanks for your comment. Regarding the discovery dispute, it wasn't case dispositive and the post was long already, so I didn't get into it. But you're right, Cisco was fined for not handing over that evidence fast enough. I did post the order so anyone interested can read more about that, and now all readers of the post will also see your comment.

Regarding your second criticism, I did look at the docket, and the fact that the decision is being appealed is clearly noted in my story. Re-read the paragraph that begins "ESN v. Cisco, meanwhile..." (7th from bottom.)

[Wesley Franklin]

You are right that the appeal is mentioned in your article. But, the fact remains that your reporting is remarkably biased and inaccurate. You have convicted Girard of having an "illegal stockpile of firearms, ammunition, grenades...explosives, double-edged knives" even though the Massachusetts newspaper article you cite in your article makes it absolutely clear the weapons have not been examined as to legality and Girard has not been found guilty of anything or even of threatening anyone. What would you say to him or his 16 year old son if he were found innocent? Would you help him get his reputation back or would you just dismiss him as a lucky Patent Troll? And if he gets his patent back, would you apologize for the last sentence in your article and perhaps admit it is as inane as Verhoeven's claim about the way Patent Trolls pass patents around that appears to have prompted it? C'mon Joe, there has to be at least a small amount of decency and balance that will seep into your writing if you just allow it to happen.

[Joe Mullin]

Wesley Franklin:

I didn't "convict" Girard, or report that he was convicted. I reported, accurately, that Girard was arrested and charged with crimes, just like many other news outlets did, some of which are linked in the piece.

Second, I don't know what you mean by writing the weapons "have not been examined as to legality." The authorities did, in fact, press certain charges—making allegations of illegality—against Girard after looking at his weapons. That's what my article, and every article that I linked to, pointed out. It's also true that some of his weapons were legal and licensed, as I point out at the bottom of the first paragraph.

So again, I'm not seeing any inaccuracy here. But if you find something, please go ahead and point it out.

As to your accusations that I'm biased, you're certainly entitled to your opinion. We may have to agree to disagree.

It sounds like you may be familiar with ESN v. Cisco or Girard himself. If you think there's additional information that would add balance to the story, feel free to contact me and we can talk it over. I am opening to reporting and publishing additional info on this topic.

[Wesley Franklin]

I have no familiarity with ESN or Girard. I just happen to read your blog from time to time and was struck by the tone and content of this one. You finally got Girard's status right in your overnight post--only arrested and charged. As far as talking, you would have a hard time convincing me that this article isn't really about the NPE/patent troll debate. that you don't side with Cisco and Verhoeven and that you didn't use Girard's arrest as an opportunity to advance the case against patent trolls. That seems clear from the way you ended the article-- "Give Girard a break. It's tough to double-check all your documents and build a weapons stockpile at the same time."

[Joe Mullin]

The post has been correct the entire time. It hasn't been altered at all since publication. Thanks for finally acknowledging it's correct.

[Wesley Franklin]

The bottom line is unchanged. You are biased and inaccurate in your writing. Saying otherwise changes nothing given the record.