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

Mon, Sep 21st 2009 2:20pm — Mike Masnick

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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Filed Under: eric albritton, johnny ward, patents, rick frankel, troll tracker
Companies: cisco

14 Comments

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Anonymous Coward, 21 Sep 2009 @ 2:50pm

If memory serves me correctly, none of the trial lawyers who practice before the ED Texas Federal District Court are in fact patent lawyers. I believe they are general pracitioners who have carved out a practice litigating patent lawsuits.
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Dark Helmet (profile), 21 Sep 2009 @ 2:53pm

Sigh
"Instead, they're making it out to be a big conspiracy theory against them"

God I hate conspiracy theories....
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- :Lobo Santo (profile), 21 Sep 2009 @ 2:58pm
  
  Re: Sigh
  I LOVE conspiracy theories--they're my favorite form of fiction!
  
  In reality; when a "conspiracy" gets beyond a certain number of people ("one?") it falls apart due to that whole 'it's not a secret if more than one person knows about it' thing--and by their very definition conspiracies are secret.
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  - Dark Helmet (profile), 21 Sep 2009 @ 3:00pm
    
    Re: Re: Sigh
    Most conspiracy theories are fiction, some are not.
    
    BTW, by definition the AGREEMENT between two or more parties to act must be secret, NOT the act itself.
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SJSCollege@gmail.com, 21 Sep 2009 @ 3:18pm

...rather than about any real "harm" done to them or their reputation.

I don't think they need any help with that one...
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DMM, 21 Sep 2009 @ 3:55pm

Spelling
Rick's last name is spelled Frenkel, with two e's. I hate to seem like a troll and point this out, but I worked with Rick in the past, and respect him. You spelled correctly 3 times, incorrectly 4 times.

I hope he is successful at trial.
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- Mike Masnick (profile), 21 Sep 2009 @ 5:33pm
  
  Re: Spelling
  Rick's last name is spelled Frenkel, with two e's. I hate to seem like a troll and point this out, but I worked with Rick in the past, and respect him. You spelled correctly 3 times, incorrectly 4 times.
  
  Oops. Fixing... Sorry.
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shirish, 21 Sep 2009 @ 6:50pm

I want to read the blog
I want to read the blog any idea how can I do that?
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- Josh (profile), 22 Sep 2009 @ 8:26am
  
  Re: I want to read the blog
  As mentioned in the links to the testimony, the Patent Troll Tracker blog is shut down, and only a few lawyers involved in the case have access to it now. After the case is over, it will
  
  I've tried the wayback machine from the Internet Archive without any luck.
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Anonymous Coward, 21 Sep 2009 @ 7:32pm

"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."

If you do something that people consider wrong you deserve to have your reputation hurt. Even if what you're doing is perfectly legal (legal != ethical), if the majority of people will disagree with your actions then perhaps your reputation deserves to be destroyed.
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- Anonymous Coward, 21 Sep 2009 @ 7:35pm
  
  Re:
  and this is mostly true if your actions affect others. Ie: in the case of patents (government granted monopolies) patent abuse, even if legal, has a widespread effect on people and people have a right to know what that effect is and how patents are being used. The government grants these patents as representatives of society, the fact that the government grants these patents does have an impact on society and society has a right to know exactly what that impact is, how the patents are used, etc... Society owes no one a monopoly and if it is to grant monopolies it has a right to know how they're being used and by whom and what they're being used for.
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Oh noes, 21 Sep 2009 @ 10:45pm

Oh noes
Oh dear Techdirt confused by an apostrophe again!
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Gene Cavanaugh, 22 Sep 2009 @ 10:26am

Frenkel's case
So why isn't someone forming a Frenkel defense fund; covering the costs of appeal, etc.? I would, if I knew more about it.

This is war on our society (just as in world war twice, and definitely more so than Iraq et al!).
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patenthitman, 13 Mar 2010 @ 4:55am

I'd like to suggest a defense to patent trolls and frivolous patent lawsuits!

http://patenthitman.com/
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