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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Comments on “Troll Tracker Sued For Defamatation By Patent Attorneys In East Texas”

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MLS (profile) says:


A false statement that calls into question one’s professional character, fitness to practice and integrity is a long recognized basis for alleging defamation. In this case the question is whether or not the statement by TT asserting that the Texas attorneys had the filing date of the suit altered is true or false.

Of course, the defenses to such a suit are far too numerous to mention.

Anonymous Coward says:

When was the complaint filed?

This seems to be the best explanation for what might have happened with the filing date (the “shell” for the electronic case was set up the 15th, but the complaint actually filed the 16th), and why truth would not be a defense —

Mike (profile) says:

Re: When was the complaint filed?

This seems to be the best explanation for what might have happened with the filing date (the “shell” for the electronic case was set up the 15th, but the complaint actually filed the 16th), and why truth would not be a defense

Ah! Very interesting. Though, other sites had reported on the same story and it seems completely reasonable to question the filing date based on the original facts that were laid out. Certainly, the troll tracker was not the only one to question it. But, that at least does explain the defamation charge.

Willton says:

Re: Re: When was the complaint filed?

Ah! Very interesting. Though, other sites had reported on the same story and it seems completely reasonable to question the filing date based on the original facts that were laid out. Certainly, the troll tracker was not the only one to question it. But, that at least does explain the defamation charge.

Perhaps, but being a lawyer himself, Frenkel should have had the better sense to not out-and-out question the integrity of the litigators, especially when he didn’t know the whole story.

Willton says:

Re: Re: Re:2 When was the complaint filed?

I’m not a lawyer, but This Article notes that the civil cover sheet attached to the filing also had the Oct 15th date. That sounds kind of damning to me.

That’s not damning at all. It’s just evidence of either possible carelessness or a client that’s overly eager. But that does not mean that Ward and Albritton (the two lawyers in question) were the ones who subsequently alterred the filing date on the docket. It was not a good idea to accuse them of doing so, especially with the “anonymous emails” as his source.

Me says:

Re: Re: Re: When was the complaint filed?

Some time back I used to work for an R&D company. We entered numerous litigation after companies refused to take a license of our patents. The patent lawyers from the “other” side would regularly LIE to the court and mis represent facts. We found numerous mis-representations and out and out lies that the court should have sanctioned the lawyers. However, courts are reluctant to do this as they tend to give the benefit of
doubt that they were just mistaken.

Courts should penalize lawyers when they lie to the court and it would cause lawyers to rethink thier stratigies when entering in to a patent case.


angry dude says:

cisco, nabisco, huisko

“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”

Don’t hold you breath, Mikey

That’s what your KOrporate buddies usually do – find a scapegoat to cover their fat asses

Rick was just a tool for executing Cisco’s patent “deform” PR agenda
The real guy behind this Cisco’s PR fiasco was Mark Chandler, their senior legal VP, and perhaps Chambers himself…
Those fellas should go first…

DanC says:

Re: cisco, nabisco, huisko

Rick was just a tool for executing Cisco’s patent “deform” PR agenda
The real guy behind this Cisco’s PR fiasco was Mark Chandler, their senior legal VP, and perhaps Chambers himself…

And you have indisputable proof of this, of course. Oh, wait….you’re angry dude…sorry. I forgot that pesky details such as facts or proof aren’t required in your case.

Mike (profile) says:

Re: Re: cisco, nabisco, huisko

And you have indisputable proof of this, of course. Oh, wait….you’re angry dude…sorry. I forgot that pesky details such as facts or proof aren’t required in your case.

Hmmm. Out of curiosity, if Angry Dude is wrong, and Cisco execs had nothing to do with this, would that be defamation on Angry Dude’s part?

angry dude says:

Re: Re: Re: cisco, nabisco, huisko

tough luck mikey

Rick himself admitted in his shitty blog that his boss was aware of his blogging activity

And judging from the vast amount of information in his blog and all the associated extensive “research”, it was all carried out during regular work hours, possibly from his Cisco office, NOT as a side activity…
Just give me a break
The whole thing stinks badly
The corporate legal councel SHOULD NOT make false statements in anonymous blog on the subject of ongoing litigation against his company. Period.

DanC says:

Re: Re: Re:2 cisco, nabisco, huisko

Rick himself admitted in his shitty blog that his boss was aware of his blogging activity

And that, of course, automatically means that his boss is personally responsible for everything Rick posted, and agreed with everything he posted. And by extension, Cisco therefore must endorse every single post that Frenkel ever made concerning patents.

You’re posting speculation, plain and simple.

angry dude says:

Re: Re: Re:7 cisco, nabisco

Hah, you are an ENGINEER ?

So when did you check last time ?

Gotta dissapoint you dude
Engineering, especially sofware engineering, is quckly becoming blue collar work in US (or worse – no work at all) unable to sustain middle class existence… thanks to guys like Rick Frenkel and his KOrporate bosses who outsource US jobs to India and China while bringing in more and more cheap H1B slaves

Keep defending them dude

P.S. Perhaps you don’t know, but I made a disclosure here some time ago: I am also an engineer with one issued patent
And right now I am mad as hell
And you should be too, buddy
Enough is enough

BTR1701 (profile) says:

Re: Truth?

> Is truth an absolute defense against defamation
> charges, just like it is against slander and
> libel?

Slander and libel *are* defamation. They’re two different causes of action that fall under the broad category of “defamation”, much like carrots and potatoes are two different foods that fall under the broad category of “vegetables”.

Tom (profile) says:

A Texas SLAPP law

I’m not a lawyer so I’m not sure what with SLAPPs and SLAPPbacks and so on, but I followed your link to Wikipedia, and further down on that page they have a link (Under SLAPPs by location, United States, Other States to to a page that lists Texas as having something to do with SLAPPS. Give that a read and maybe you will have your answer.

Willton says:

Re: Re:

WTF, you can’t say, hmm I wonder if something fishy is going on here, if the person you are wondering about is a judge, or lawyer. We really need to make the practice of law punishable by death, if they have perverted the freedoms of this nation to that point.

Feel free to tell your Congressman, then. I’m sure he’ll listen.

angry dude says:

For all of you, techdirt retards

Last comment before I go for today…

This guy, Rick Frenkel, could blog about anything in the world he wanted to blog about, except ONE thing:

as a high-profile in-house legal counsel at a company involved in ongoing litigation with another party,
he should NEVER EVER make any defamatory or simply false statements about opposing party’s legal counsels

That’s a big NO-NO
Now let’s see what happens
Somebody’s gonna be spanked

Anon says:

The personal attacks aside, Angry Dude is absolutely right. What Frenkel did was wrong for 2 reasons.

First, he used his anonymous platform to give what his readers were to believe was a supposedly objective, third party opinion when he was not an objective, third party. At the least, this was deceitful to his readers.

Second, as a lawyer, he is paid to spot issues and avoid trouble for his client. I don’t know the internal workings of Cisco, but I’m guessing part of his job responsibilities were to develop policy intended to keep Cisco from getting sued. His not seeing that speaking out as he did could get Cisco in trouble was ignorance, arrogance or both.

The same applies to his manager. Once his manager knew he was the Troll Tracker, his manager had an obligation to Cisco to at least put a policy in place where Frenkel would not act in a way that could get Cisco in hot water. If such a policy was in place, and the manager didn’t know of Frenkel’s speaking out against attorney Ward, then I agree Cisco should have no liability. Otherwise, the manager is culpable as well.

Anonymous Coward says:

I do not understand your struggle to understand what is defamatory about the Troll Tracker posting in question. TT accused the attorneys filing a case against his own employer of either by themselves, or in concert with the Clerk’s office, fabricating court records in gain advantage in litigation. Not only is that a serious, serious charge, but it was made apparently without checking the facts (I didn’t see any reference to him contacting the attorneys in question or the clerk’s office to find out exactly what happened) and while hiding the fact that he, as Cisco’s counsel, had significant bias on the whole matter.

Place yourself in the shoes of the attorney accused of gross misconduct and then ask if you would have felt defamed.

Junho yang says:

US Patent Office Made False Illegal Patent

Pirates in the U.S

The U.S Patent and Trademark Office, USPTO, has been believed to engage in the counterfeit patent.

1. The First Patent for Puzzle Applied in Korea
The sudden financial crisis of Korea made it difficult for me to find a job, so I had no choice but to walk on the street, thinking what I had to do. However, no matter how hard I thought about it, I had no idea to address such circumstance facing me. All of the sudden, I hit an idea which I had learned from a lecture given by an inventor when I was a child. He said that we all needed to think how to invent something out of a brick. I began to reflect on my memories and they were reflected in bricks of streets that I walked on. Then, I hit an idea, ‘Would it be a good idea if I made a picture puzzle from such bricks?’ At that same time, I thought that if I made it with simple triangular, rectangular or hexagonal bricks, there would be no fun at all.
In addition, I imagined that children played together, jumping across lines drawn on bricks. By doing so, I tried to make a puzzle in which bricks were connected. The problem was that a shape of chains should be specialized to make bricks attach, detach and move around one other. After having conducted several researches to make it happen, I finally developed a structure of triangular, rectangular or hexagonal brick chains.
On March 21, 2001, I applied for a patent on my idea to the Korean Intellectual Property Office for the first time.

2. Contract with OOO Company
Since I did not have any financial resource to apply for a patent abroad, or develop puzzle products or build a new company, I soon started to look for domestic and overseas firms which might show their interest in my puzzle. To this end, I did web searching, directly visited companies at home and consulted them. As a result, I signed a contract with a U.S company, OOO Company, but a contract condition was not satisfactory due to a lack of asset. Since I had contacted OOO Company, 10 month has passed until the contract was completely concluded. Therefore, in that process, I had applied for the PCT patent at my own expense and then had turned over all the rights for patent and sales to OOO Company. That means that OOO Company became obligated to apply for the patent on my puzzle overseas, produce products and sell them on behalf of me.

3. Process for Prototype Puzzle Products and Application for a Patent in the U.S
The president of OOO Company continuously sent me emails through which he said he would develop products and display them in toy fairs as soon as possible. Unlike his promises, the pace of work was too slow from a point when the contract was forged. I had a bickering with him given that he often lied to me that such project would be quickly implemented. OOO Company applied for a patent on my puzzle only in the States at a time when the PCT patent was expired. Since then, in February 2004, OOO Company showcased a sample of the products at the New York Toy Fair. Since the contract was concluded, it was so hard and time consuming to showcase samples of my puzzle due mainly to the dishonest president. Samples were not put on a test until 2 years had passed. Until then, I rejected several job offers which had been given to me in a difficult situation to find a job and thought that I should give other people a chance to work as a regular worker. Meanwhile, I was doing part-time jobs and adding further ideas to the initial one. All of that resulted from a lie of the president. Under such circumstances, my puzzle product appeared to yield a fruitful outcome at the Fair. Considering the contract forged with a renowned Japanese puzzle company, the result was somewhat satisfactory.

4. Patent Found in the U.S
Despite a success at the New York Toy Fair in 2004, Steven Wong, a U.S patent administrator, refused to accept my claim to the puzzle in the U.S. on June 24 in 2004. The reason was that Lynn Spitzer, a patentee of puzzle, had applied for a patent similar to mine in the U.S. earlier than I did, and that all of my claims could infringe on the patent owned by Lynn Spitzer.
Patent No: US 6,536,764 B1 Date Of Patent: Mar. 25, 2003 Inventor: Lynn Spitzer, Philadelphia, PA(US) Assignee: The Toy Hatchery, Inc., Philadelphia, PA(US)
Appl.No:09/496,483 Filed: Feb. 2, 2000 Primary Examiner -Steven Wong
Attorney, Agent, or Firm- Grimes & Battersby, LLP

5. The Forceful Demand of OOO Company
The president said that Spitzer’s patent was applied in the States one year earlier than mine in Korea and it was so similar to my patent that mine was no longer valuable for another application. Consequently, he forced me to make a contract which would be absolutely unfavorable for me. I responded to his claim by demanding that since the U.S patent administration considered a similar patent as a technology if it had even a little difference, he should revive my patent and negotiate with Lynn Spitzer, or he should terminate my U.S patent after making compromise with Spitzer by insisting on technological difference of my patent. However, the president reiterated that my patent did not have specialty more than Spitzer’s. He added that he would have permission from Spitzer if he wanted to sell products in the U.S. For these reasons, he said he would not spend unnecessary money. As a result, my U.S patent was expired after the correction period had passed. Unfortunately, I did not have enough money to revive the patent. To make matters worse, I gave OOO Company all of my rights and responsibility for the patent in conformity to the contract. Nonetheless, failing to enroll my patent in the U.S. did not mean that the contract between OOO Company and me was no longer valid. In accordance with the contract, when the last patent was expired, the contract became invalid. Of course, there was a condition that when OOO Company did not want to renew the contract, it could declare the termination of the contract, but since I had turned over my Korean patent to OOO Company, the contract continued to remain valid. Then, the president, however, gave me an irrational document for contract renewal. According to it, the loyalty for my puzzle would be cut in half, contract might be expired whenever the president wanted and my products would not sell in the U.S. Additionally, he said only if I signed on for the contract, he would negotiate with Spitzer. I did not want to agree on the contract suggested by him. It was because OOO Company had already terminated my patent and did not faithfully engage in the application for my puzzle in other countries, so if OOO Company had declared the expiration of the contract, there would have been no way for me to receive the loyalty in accordance with such a contract. Furthermore, even if I had established a toy company, I would have been ineligible to sell products in the States. He did not deliberate on my situation, but consistently called on me to sign on for the contract renewal.

6. The Similar U.S. Patent Proved Faked
Since then, I sent Lynn Spitzer a great deal of emails. At first, she told me she was on vacation. Afterward, she sent me an e-mail through which she said she was not interested in OOO Company and me. Nevertheless, I emailed her in a bid to persuade her as often as I could. But, she replied “I got some plans,” warning of infringement on her patent. If I counted the number of email sent to her, it might be over 1,000.
Increasingly, I wonder if her patent would be faked.
The first reason was that Spitzer had not done anything about her patent for 8 years. In order to make money, she should have produced goods or sold products by importing such goods from somewhere else, or had someone sell products to receive loyalty if a right for the patent had been expected to last for 20 years. Taking King Solomon’ judgment as a good example, I concluded that she was not attached to her patent and I confirmed that she was not a real patentee.
The second reason was that although someone had received my call at Spitzer’s company, The Toy Hachery. LLC, she had never put me though to Spitzer. Considering her attitude to receive a call, she was not an employee for that company. She had just received a phone call for 2 years.
The third reason was Spitzer said she would work with FarSight Innovations.LLC, but that company’s homepage had only one page. The owner of the domain was a database company, not a manufacturer. I had a strong belief that she was hiding something. Subsequently, I started to examine externally into what the Spitzer’s patent was and what the U.S. Patent and Trademark Office (USPTO) did. Finally, I found out something.
For Americans who apply for a patent in the U.S., the file repository date (the repository is located in Virginia) comes before the issued date. Of course, a patentee’s address should be the U.S. one. From an application to a correction, a patent is not unveiled until it is stored at the repository in Virginia. There are some patents that can be belatedly stored. Usually, a patent goes public 2 to 3 years after the first application is completed.
File Repository Date (=Location Date) > (ABOUT WITHIN 5 DAYS) > Issued Date = US Mark or US Address
Foreigners must apply for a patent in their countries first and then apply to the U.S. When they do so, they must reveal a patent. Therefore, an issued date comes first. In many cases, after the patent administration office confirms that there is nothing wrong in a patent, it restores the patent at the Virginia-based repository.
Issued Date > (ABOUT 0 MONTH ~ 2YEAR) > File Repository Date (=Location Date) = KR, JP, DE or other national Mark except US mark
However, in spite of the fact that the Lynn Spitzer’s patent was publicized on March 25, 2003 (an issued date), it was stored on June 15, 2004 (a file repository date) and the address was registered in the U.S. Unlike other patents applied by Americans, her patent’s issued date came before the file repository date. Furthermore, it was put at the repository even after 15 months although Spitzer’s patent had been applied by an expensive patent agency and correction of the patent had taken place several times during a closed period.
Why was Lynn Spitzer’s patent applied in reverse order? In order to use a fabricated date of application, Spitzer exploited the way foreigners apply for a patent in the U.S. It is because her patent did not exist in 2000 even though Spitzer insisted that her patent was issued for the first time at that time. Put it once again, although Spitzer was an American, for concoction, she took advantage of the way a patent of foreigners is applied in the States. That is why an issued date and a file repository were reversed and files were put at the repository 15 months later. How did she make a fabricated date despite the fact that serial numbers are set for each application document? To find an answer, I examined into application numbers. I confirmed, to my surprise, a lot of vacant application numbers. Why, on earth, does the U.S Patent and Trademark Office make vacant application numbers? Anyway, I obtained sufficient evidences that indicated she fabricated her patent.

7. Response from the President of OOO Company
I had not realized for 3 years that Spitzer’s patent was faked. During that period, the president continuously pushed me to sign on for an unreasonable contract while failing to take issue with Spitzer. Spitzer’s patent was about to prove to be faked 3 years after OOO Company found Spitzer’s patent. At that time, a lawyer from OOO Company sent her an email through which he said the company wanted to receive a license from her, but she rejected that offer. After I discovered that Spitzer’s patent was fabricated in 2007, I informed the president of it. According to the contract, he should legally respond to, along with me, an infringement on my patent if there is any. Instead, soon after he had been notified that Spitzer’s patent was faked, he terminated the contract. As a matter of fact, I had asked him to annul the contract, arguing that I would do this business on my own. However, no matter what reason, he wanted to continue the contract so that I could not do anything. Then, when there was the evidence to show that her patent was faked, he terminated the contract. Now, he has stepped down from the presidency.

8. Talks to Lynn Spitzer on the Phone
Although I sent the related information to the U.S agencies, they did not take up a positive attitude. They wanted me to give a chance to those associated with the fake patent for an apology and to settle the issue in a good way. Since I had notified many related agencies of the information, every patent agent at Grimes & Bettersby, LLP rejected my emails. Grimes & Bettersby was the company which took care of Spitzer’s patent as I mentioned earlier. Spitzer no longer insisted that she had some plans and just sent emails which she had previously written at her patent agency. In that email, just a few words were corrected. All she did was giving me a few of official answers. I sent her an email through which I said “You just lent your name. It was your patent agency and an examiner of USPTO who fabricated the patent.” I recognized that a patent agency was necessary to fabricate a patent, so I decided to take issue with Grimes & Bettersby on my own. There was a women employee who was in charge of taking a phone and patent agents there did not directly answer a phone. As indicated by telephone counselor, I recorded several voice messages. I asked her if she knew her company was an illegal one. She repeated ILLEGAL, a word I said to her, in order to understand my intention. Then, I talked about file repository date and asked her name. She murmured, “Spit…, Spit…” and she said her name was Spitzer. I became curious about her full name and I asked her if her name was Lynn Spitzer. She said, “Yes” and started to blubber. I was greatly surprised. She said that no one but her was there at office. I did not understand why such a tender-hearted woman was engaged in this matter. However, now, another person receives a phone and soon hangs up the phone. Considering her, I decided to settle this issue in a way to forgive all concerned, but she has yet to provide any solution as if an external pressure prohibits her to do so. Making an illegal patent requires a patent agent and an examiner at USPTO, let alone Lynn Spitzer. Although I tried to forgive them at first, I have made up my mind to file a lawsuit in a bid to find the truth as well as the reason that they have repeatedly avoided. After I wrestled against this adversity, so to speak, I have come to know there would many more fabricated patents in the U.S.

9. Information for Support Fund to Assist a Lawsuit
I made a decision for a transparent management for an intellectual property right in every nation.
I hope that my lawsuit will prevent such a fabrication from reoccurring.
Bank: Hana Bank in Korea. Depositor: June-ho Yang. Account Number: 365-810015-69907
I highly recommend you to confirm whether there are problems on your patent applied in the U.S

10. How to Contact

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