Patent Troll Tracker Trial: Defamation Or A Chance To Silence A Voice Some Patent Lawyers Didn't Like

from the which-do-you-think dept

As you hopefully recall, back in late 2007, a wonderful, informative and useful blog suddenly popped up on the scene, highlighting some of the worst abuses of the patent system by shell corporations suing companies that were actually innovating. This side of the patent dispute had never really received too much of a spotlight. While there were certainly complaints about "patent trolls" and about the fact that so many patent lawsuits were all being filed in eastern Texas, there was little attention actually being paid to who was behind these lawsuits and some of the sneakier tactics they used (such as a variety of shell companies to hide the true identity of who was behind the lawsuits). The anonymous Patent Troll Tracker blog did a really nice job turning a nice spotlight on some of these practices -- and that, of course, upset those who had made a nice little (actually, a huge multi-million dollar) business for themselves being involved in such lawsuits. They went crazy trying to dig up any and all information on who the anonymous blogger was, and eventually got him to reveal himself as Rick Frenkel, a Cisco lawyer, by filing a defamation lawsuit against him (Update: To clarify, Frenkel revealed himself prior to the actual defamation lawsuit being filed, but one of the lawyers had been trying to get Google to reveal the name, claiming that the posts were defamatory). The issue was a blog post where he noted that a lawsuit had been filed on October 15th, 2007, even though the patent in question had not been issued until October 16th. Yet, even though the original documents showed an October 15th date, the date later changed to the 16th, raising reasonable questions about what happened, how the original date showed up and how it was changed.

The lawyers who had filed the lawsuit claimed that this was defamation, in that the posts accused them of a crime, and claimed all sorts of damages. They added Cisco to the lawsuit and the trial finally began last week. Joe Mullin is doing an amazing job reporting live from the trial, and has detailed the opening statements, Rick Frenkel's testimony and the testimony of the lawyers accusing Frenkel of defamation.

The East Texas patent lawyers are trying to paint a picture of some conspiracy theory to make them look bad, but it's difficult to see how that's supported. So far, it appears that the factual points that Frenkel noted were accurate. The filing did originally have the earlier date on it, and the court clerk was later convinced to change it. That, alone, is pretty suspicious -- and a point worth raising, as Frenkel did. No one seems to be disputing that. Instead, they're making it out to be a big conspiracy theory against them, and are claiming all sorts of emotional damage and that they were accused of being criminals (which Frenkel did not do), but haven't shown how there was any real harm. Instead, in the lawyers' testimony, they admit that when they saw the blog post, their first thought was "Let's get this shut down." In other words, on the stand, they admit that their lawsuit wasn't about defamation or harm, but about them trying to stifle free speech.

Who knows how the trial will end up, but from the testimony so far, it certainly looks like the lawyers are admitting that the case was really about exposing and silencing Frenkel, rather than about any real "harm" done to them or their reputation.

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Rocket Docket Of East Texas Not Fast Enough For Lawsuit Against The Troll Tracker?

from the funny-how-that-works dept

Joe Mullin has all the latest details on the ongoing defamation lawsuit filed by some East Texas lawyers against Rick Frenkel (better known as the Patent Troll Tracker) and his employer Cisco. We covered the original lawsuit earlier this year, but things are getting more complicated. There are some arguments going on over the appropriate venue as well as some questions about legal fees. It seems that one of the lawyers has dropped the case against Frenkel directly to focus just on Cisco, and Frenkel would like his legal fees paid. The suing lawyer disagrees, suggesting that it was a gentlemanly move to drop Frenkel from the case in the first place.

However, perhaps the most amusing part of all of this is that the guy is trying his darndest to keep the lawsuit out of the East Texas district using the argument that the district is too slow because it's all filled up with pending lawsuits -- such as all the patent lawsuits being filed in the so-called "rocket docket." Just recently, a patent attorney who hangs out in the comments here insisted that (despite statistics showing that East Texas sided with patent holders at a much higher rate than in other districts) the real reason patent holders filed there was because of the speed with which it took care of cases. Funny how one of the patent attorneys who promotes that view is suddenly worried about just how slow those courts are.

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Blogging vs. Journalism Question A Key Point In Compelling The Troll Tracker To Testify

from the we'll-be-seeing-more-of-these dept

While it looks like the attempt to get Rick Frenkel, better known as the "Patent Troll Tracker" into court on a separate patent-related dispute has gone nowhere, there's an interesting side dispute as part of this that touches on the age-old debate concerning the border of blogging and journalism. Frenkel told the court that since the Troll Tracker blog was a side project, not an effort of Cisco, and since he was, effectively, a journalist in writing it, he could not be compelled to testify since it "would result in a serious detriment to Frenkel's future ability to gather and disseminate news."

However, Frenkel's nemesis, patent attorney Ray Niro responded by scoffing at these claims, and ticking off the reasons why Frenkel should not be considered a journalist. Unfortunately, in doing so, Niro displays a rather profound ignorance concerning what it means to be a journalist (one would hope that his work with patent hoarders is not so sloppy). In the link above, Joe Mullin does a good job picking apart Niro's points, but let's take a closer look. First, Niro says Frenkel is not a journalist because he's unqualified:

"Frenkel has no degree in journalism; no professional training as a reporter; and has never been employed as a reporter or journalist."

If that's a requirement to be a journalist these days, then an awful lot of folks doing serious journalism work wouldn't be considered journalists either. There are no professional requirements to be a journalist. Second, Niro claims that Frenkel wasn't very nice in his posts, highlighting the Troll Tracker's rather amusing "haiku" contests, that tended to make fun of patent hoarders and (sometimes) Niro. Of course, there's nothing in engaging with your readers with amusing haiku contests that makes you any less of a journalist. Third, Niro says that since Cisco was Frenkel's employer, he's clearly not a journalist but something of a corporate mouthpiece. Of course, there's little evidence to suggest that Frenkel was doing anything on behalf of Cisco, but more importantly, (as Mullin points out) biased reporting doesn't disqualify you from being a journalist. If it did, how many "journalists" would still be around? And fourth, Niro claims that Frenkel was guilty of various journalistic ethics violations, such as writing anonymously (someone better alert the Economist) and not revealing his sources (always knew that Woodward and Bernstein weren't real journalists).

The simple fact is that you don't need a degree or a certificate to be a journalist these days. You just need to report the news -- and no one can deny that Frenkel did that. In fact, he was much more of a journalist than many "official" journalists these days in that he reported on news that wasn't getting covered anywhere else and did some pretty hefty investigative work on some to try to work out the details behind some of the patent hoarding company shell games. In fact, since he took down his site, the type of news he reported has been sadly missing from the discussions on patent law and patent reform. On that note, it's probably also worth pointing out that Frenkel said in his own filing on the case that he's planning to return to blogging at some point in the future.

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More Lawyers Want To Get The Troll Tracker In Court

from the shutting-up-a-valuable-voice dept

Last month, we noted that Rick Frenkel, who for months had been the anonymous "Troll Tracker," was being sued for defamation for some of the posts on his blog. Now, it appears that another set of patent attorneys that Frenkel wrote about are trying to get him into court. This concerned the rather infamous case of a patent attorney at a large law firm who got his own patents, and then used them to sue companies who were clients of his own firm for patent infringement. The lawyer in question, Scott Harris, is represented by Niro Scavone, who was another target of Frenkel and whose named partner not only proudly claims that the term "patent troll" was based on him, but also put out a bounty to anyone who could identify the Troll Tracker.

So why is Frenkel being dragged into the Harris case? Apparently Harris and his lawyers are trying to build a big conspiracy theory around Frenkel. Because Frenkel worked at Cisco, and Harris' former employer (Fish & Richardson) did work for Cisco, Frenkel's blog posts really were just a big plot to help out Fish & Richardson while devaluing Harris' patents. That sounds pretty far-fetched by any stretch of the imagination, and would require an awful lot of proof. But, what's most likely really happening is that the folks that Frenkel helped shed some light on are now taking advantage of the situation to drag him into court whenever and however possible.

This is quite tragic for a variety of reasons. No matter what one thinks of Frenkel's anonymity while working for Cisco, you cannot deny that he brought to light many of the shadier tactics being used by patent hoarding firms, often hiding behind shell corporation names and suing many companies at once. Since Frenkel stopped blogging, many of those stories are remaining underground. No one has stepped into the void, unfortunately, perhaps afraid that they, too, will become targets in various lawsuits. The information that Frenkel was bringing to light (while potentially biased by his position at Cisco) did help point a light at some questionable activities that had been hidden for far too long.

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Troll Tracker Sued For Defamatation By Patent Attorneys In East Texas

from the you-knew-that-was-coming... dept

Just this morning we were lamenting the fact that the formerly anonymous Patent Troll Tracker had shut down his blog, but now we know why. It appears that two patent attorneys in East Texas have sued him and Cisco for defamation. One of the attorneys happens to also be the son of the judge who helped make Marshall, Texas famous as a favorite for patent holders. The details on the case suggest that this lawsuit may have been the reason that Rick Frenkel outed himself, as it was actually filed back in November and used as a way to unmask the Troll Tracker.

The defamation claim is based on a post that Frenkel put up back in October, which we wrote about. It involved the fact that the Texas lawyers in question had filed a patent lawsuit against Cisco in Texas, the day before the actual patent was issued (which you're not supposed to do). In response, Cisco (perhaps Frenkel himself) had quickly filed for a declaratory judgment in Connecticut. Later on, the date on the original filing in Texas was changed, a fact that Frenkel found quite questionable. No matter what, that case was eventually dismissed entirely -- but the lawyers in question are still suing both him and Cisco for defamation. Cisco, I'd imagine, isn't thrilled about the whole situation, but one would hope execs there are reasonable enough not to punish Frenkel for this. It would be great if lawyers could weigh in on the defamation claim. The links above have most of the text being used in the defamation claim, and I'm struggling to figure out what's actually defamatory about it. There doesn't seem to be anything that would count as defamation at all. Even if there is some defamation in there somewhere, it's also difficult to see how Cisco could be found responsible for the speech. Even though Frenkel worked at Cisco, he clearly did not post the story as a representative of Cisco, and was quite careful to point to other sources that had reported the news first (i.e., not using internal Cisco info). Anyone know if Texas has a SLAPP law in place?

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Patent Office Agrees To Review Infamous JPEG Patent

from the well,-that's-good dept

Last month, we noted that there was some effort being made to get the Patent Office to do a re-exam of a patent that attorney Ray Niro had been using to go after any site that had a JPEG image. While the patent itself had been re-examed before, one claim had been left intact, which Niro has said covers anyone using JPEG compression. It appears that the effort to get the USPTO to look into the patent once again has succeeded, though it's a long and rather involved process that won't come to fruition for quite a long time. The request includes a long list of prior art on that one particular claim, which the Patent Office admits it did not look at earlier and that raise substantial questions about the patentability of the remaining claim in the patent. This is rather good news.

On a side note, we first came across the story of this patent thanks to the then-anonymous Patent Troll Tracker blog. A few weeks back, the author of that blog revealed himself (after being told anonymously that the news was about to leak in an unflattering manner) as a lawyer working on IP issues at Cisco. It's too bad that he felt the need to reveal himself, but it's even worse that he has since taken down the blog entirely. It had a lot of excellent background information, which is all gone now, and the lack of updates is a real loss. It was the only source that was providing insight into some of the shadier activities of certain patent holders and patent attorneys. It's a world that needed more light shined upon, not less. It's a true shame that it's been lost to the world, much to the detriment of those trying to show how the patent system is being regularly abused.

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Patent Attorney Ups Bounty On Troll Tracker, Apparently Doesn't Like Anonymous Speech

from the thin-skinned-patent-attorneys dept

Last week we had the bizarre story of how a bigshot patent attorney, Raymond Niro, was so disturbed by the anonymous Patent Troll Tracker shining some light on Niro and some of Niro's clients, that he was offering a $5000 bounty to anyone who could identify the Tracker. Niro has now responded to some of the stories about the bounty, where he tries to "correct a few misconceptions" about the story. On one point, he is quite accurate -- the patent he's been accusing the Troll Tracker of infringing is not owned by Acacia, but by another firm, Global Patent Holdings. Of course, the Tracker had already corrected that story a few days ago, so Niro wasn't actually adding anything there. Also, Niro states that Global Patent Holdings "has no connection to Acacia" which is a bit misleading. It may not currently have any connection, but three years ago Acacia bought most of Global Patent Holdings' assets -- and it was even misreported by the NY Times that Acacia had bought the entire company. So, it was a pretty easy mistake to make -- especially since these patent hoarding firms use so many shell companies to hide their identities.

More importantly, Niro first raises the bounty to $10,000 for information identifying the Tracker, and then states that the Tracker needs to be exposed to be "held accountable for what he says." He also notes "if you really have anything truthful to say, you are not afraid of identifying yourself." You would think that Niro, as an intellectual property lawyer, would be well aware of both the historical importance of anonymity and the US courts repeated decisions pointing out that anonymity is part of our free speech rights. As for not "being afraid" to identify yourself, would Niro have said the same thing of the authors of The Federalist Papers? There's often a good reason to be anonymous -- which is why the courts protect it as free speech. Niro also insists that he's not trying to identify the Tracker in order to sue over the patent in question, but that would be much more believable if Niro hadn't used that same patent against another critic and also sent the Tracker an email telling him that he was infringing on that patent. As for the patent itself, Niro makes it clear that: "Anyone that operates a website runs the risk of infringing Global's patent if (as we believe) that patent covers the manner in which JPEG images are displayed on a website." There are some people who can make reasonable claims that they're trying to use the patent system to further the cause of innovation. But when someone claims that he can sue any website that has a JPEG image in it, you have to wonder how that could possibly "promote the progress of science and useful arts."

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Patent Attorney Offers $5k For Identity Of Anonymous Patent Troll Tracker

from the getting-under-people's-skin-apparently... dept

A few months back, we discovered the blog of an anonymous IP lawyer called The Patent Troll Tracker. It had great info, and you've probably noticed that we're now linking to stories from that site on a fairly regular basis. Sometime before we became aware of the site however, the Troll Tracker got into a little scuffle with a bigshot patent attorney, Raymond Niro of the law firm Niro, Scavone. The Mises Institute has a recap of the situation, but basically the Troll Tracker had mentioned Niro in a way that Niro felt was unflattering, and Niro asked the Troll Tracker to identify himself -- not, apparently, for a defamation charge, but for patent infringement. How could a blog post (unflattering or not) be considered patent infringement? Apparently, the patent in question, owned by Acacia (who, you may recall is considered the worst patent system offender by the EFF), can be interpreted to mean that posting a JPG image to your site is infringement. It also happens that Niro is the patent attorney who has filed some of Acacia's patent infringement lawsuits, including against the Green Bay Packers for violating this same patent. Apparently, Niro also used the same claim of patent infringement against well-known patent critic Gregory Aharonian. It's an interesting twist on patent infringement cases to use an incredibly broad patent that covers "posting a JPEG to a website" to basically go after anyone you don't like. Somehow, I doubt that's what the founders of the patent system had in mind. Hell, I'd guess that it's not what anyone who had any part in writing patent laws had in mind.

Of course, Niro has run into something of a problem in trying to sue the anonymous Troll Tracker. It's that anonymity bit. So, apparently, he's now put out a $5,000 bounty to anyone who can identify the Troll Tracker. Law.com has more details on this as well as some other odd moves by Niro. Who knows if he will actually sue (though, the earlier stories suggest it's not out of the realm of possibility), but it's stunning that a bigshot patent attorney would be so afraid of an anonymous critic of patent system misuse that he not only would threaten him with patent infringement claims on such an incredibly broad patent, but also is willing to put up $5,000 just to find out the guy's identity. Yes, this is what our patent system has been reduced to. Thomas Jefferson is rolling in his grave.

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