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.