Patent Law

Rick Frenkel – who until recently was known only as the Patent Troll Tracker – has now been sued for defamation by two Eastern District of Texas lawyers: Johnny Ward, Jr. and Eric Albritton.  Frenkel recently revealed himself as an IP Director at Cisco Systems. Cisco is also a named defendant in the lawsuit. Ward has represented many plaintiffs in E.D. Texas patent cases and is the son of Federal Judge John Ward of the Eastern District of Texas.

The whole case seemingly stems from a Patently-O posting on October 16, 2007. That post, titled “Patent Office Has Stopped Examining Patents with 25+ Claims,” included a short blurb about a seeming “preemptive strike” by the patent holder ESN:

From Patently-O: In another preemptive strike, on October 15^th, ESN sued Cisco for infringing Patent No. 7,283,519.  Unfortunately, the patent did not issue until the 16^th of October. [Link] 

Of course, a patentee has no standing to sue until after the patent issues, even if you know that the patent will issue the next day. The Patently-O post included a link to ESN’s complaint that had an October 15 electronic time-stamp and a civil cover sheet dated October 15.  Ward and Albritton were involved in this case, apparently serving as local counsel for the McAndrews firm.

By October 18, the PACER filing information still reflected that the case had been originally filed on the 15th, but the PACER complaint filing date now indicated October 16. (See thumbnail screenshots.)  This date became potentially important because, in the meantime, Cisco had filed a declaratory judgment action against ESN in Connecticut.  (First-to-file with standing usually wins venue.)

On October 18, the Troll Tracker posted what are seemingly his most pointed comments about the case:

“I got a couple of anonymous emails this morning, pointing out that the docket in ESN v. Cisco . . . had been altered. One email suggested that ESN’s local counsel called the EDTX court clerk and convinced him/her to change the docket to reflect an October 16 filing date, rather than the October 15 filing date. I checked, and sure enough, that’s exactly what happened – the docket was altered to reflect an October 16 filing date and the complaint was altered to change the filing date stamp from October 15 to October 16. Only the EDTX Court Clerk could have made such changes. . . . This is yet another example of the abusive nature of litigating patent cases in the Banana Republic of East Texas.”

In a different post, PTT mentioned that Ward and Albritton represented ESN and that they might not “play well” in a Connecticut court.

Moot Point?: Since then, ESN v. Cisco has been dismissed by agreement of the parties, and the original filing dates have become meaningless and moot. However, Ward and Albritton remembered Frenkel’s comments. Within three days of Frenkel’s “outing” a defamation lawsuit had been filed in Texas state court. At this point, none of the parties are discussing either case in public except that Cisco “continue[s] to have high regard for the judiciary of the Eastern District of Texas and confidence in the integrity of its judges." 

Seeing an opportunity, the Howrey firm has now declared that it “absolutely won't represent trolls.”  Is the patent bar in the midst of a split? [Joe Mullin has the Howrey Advert]

Notes:

• Although I have not always agreed with Frenkel’s opinions, he has been a great addition to the public debate over patents and patent reforms. His analysis has always been fresh. On several occasions, I double-checked the factual basis of his reports, and each time found them spot-on.  I do hope that he’ll be back with more caustic analysis. I’ve been sitting on this story for a while now. Although not a named party, my name appears in the filings. Craig Anderson (DailyJournal) apparently broke the story in a hardcopy version.
• This case may serve as a caution to Patently-O “anonymous” commentors. A defamed individual may have ways to figure out your identity.
• ESN has explained that it actually filed the complaint at 12:01 am on October 16.
• File Attachment: Defamation Complaint filed by WARD (383 KB)
• File Attachment: Defamation Complaint filed by ALBRITTON (452 KB)
• Original ESN v. CISCO complaint
• Joe Mullin Reports on the Case
• Legal Blog Watch
• Legal Pad reports on the Case
• Forbes has a quite flippant view
• Zura Reports
• Mark Randazza
• Robert Ambrogi