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March 12, 2008

Down & Outed

Rick Frenkel had a juvenile impulse to blog anonymously. The juvenility was not so much anonymity per se, it was blogging as he did - trying to out others while staying masked. The inevitable occurred - Frenkel pissed off attorneys, including the legendary Ray Niro, who put a bounty out for Frenkel's identity after Niro took umbrage. Frenkel outed himself just before being outed. Niro wasn't the only one displeased.

Two east Texas attorneys: T. John "Johnny" Ward, Jr. and Eric Albritton, have sued Frenkel for defamation; you don't get three guesses where. Ward is the son of the amazing Eastern District of Texas Judge T. John Ward, who put the district on the map as a premier patent litigation venue.

Frenkel works for Cisco, at least for now. Cisco first let freedom ring: "Cisco does not interfere with their expression of free speech whatsoever;" but, in light of the lawsuits, has now released tepid rebuke: "Comments made in the employee's personal blog represented his own opinions and several of his comments are not consistent with Cisco's views."

It likely would have been a lot easier, and a lot more fun, to have just hired high-priced hookers on out-of-town trips, like another crusader who wished he could have remained anonymous. Blogging is a rough game, whereas hookers can be downright delightful, not that I'd know anything about that. We patent bloggers are a chaste lot.

Belatedly deciding that discretion is the better part of valor, Frenkel's blog, Patent Troll Tracker, is now by invitation only.

Other coverage: Patently-O; 271; The Prior Art; Forbes.

Posted by Patent Hawk at March 12, 2008 1:11 AM | The Patent System


I don't think it was a "juvenile impulse" on Rick's part

Looks more like a carefully planned and executed (but ultimately failed) corporate assignment handed to Rick by his Cisco boss - Mark Chandler.

Smart move, Mark...

Now poor Rick gets all the blame and even gets sued and you stay untouched
Now that's called "fairness" !

Posted by: angry dude at March 12, 2008 7:08 AM

Yeah, right. Go read the Ward complaint and get back to us on whether you see any merits. It is an embarrassment -- nothing but a bald face SLAPP suit, which Texas courts are well known for - i.e. Cattlemen v. Winfrey.

And if those filing dates in the underlying ESN were fudged or modified, then someone ought to lose a law license.

As a rather loose-lipped blogger you ought to be a bit more sensitive about First Amendment rights. Some litigious nematode with a law degree could crawl up your butt and try to strangle you, too.

I have not seen Albritton's complaint yet, but on the basis of Ward's and what I've read about this situation, I support TT 100%.

Posted by: Sofa King Anti-fascist at March 12, 2008 7:54 AM

Check out The Prior Art entry today: http://thepriorart.typepad.com/the_prior_art/2008/03/ward-jr-may-hav.html
I don’t pretend to know the merits on this complaint.

There can be a fine line between First Amendment rights and defamation. I was threatened with a defamation lawsuit for an entry, and decided to back down. If I’d had more money, the luxury to defend myself, I would have told them to stick it where the sun don’t shine, because I had just reported a court ruling, but that wasn’t a rational option. I was craven. It was sheer intimidation, and it worked. That does not appear to be what is going on in Frenkel’s case.

As far as defamation goes, willfully trying to damage someone’s reputation without basis in fact is egregious. Otherwise, the first sign of mental illness is taking oneself seriously. Sticks and stones... Personally, I take my work seriously, helping my clients is done with the utmost seriousness, but my own self-regard is real to the point of laughing at myself most every day.

I don’t know who knew that Rick Frenkel was blogging at PTT. Rick Frenkel is an attorney, supposedly well trained in the prudence requisite of attorneys, as if that means diddly. I recall Frenkel writing (the blog entry has been expunged) that his boss knew of his blogging. It’s a bit hard to imagine that bit of info didn’t make it up the chain of management as the months rolled on of his blogging.

But that’s rather beside the point.

Children always try to see what they can get away with; human self-interest is bounded in maturity by recognition of reciprocity; a evolving sense of the ideal of fairness. Lacking that is essentially juvenile behavior: lacking a sense that actions have consequence, that you can keep being a sneak and get away with it indefinitely.

I don’t think that what Frenkel was doing was inherently bad; nominally, it was just information; I wasn’t entertained and didn’t read PTT much, because it was boring to me, but PTT was popular, so I’ve read.

Given his situation: knowing Frenkel’s identity, and his corporate master, would have tainted his credibility; so he chose anonymity. Then he purposely chose to grind his axe about “patent trolls” who prefer anonymity; the pot calling the kettle black.

The point of the hooker analogy to a recently resigned politician was that hypocrisy is a hoot. As Elvis Costello once wrote: “I used to be disgusted, but now I’m just amused.”

Posted by: Patent Hawk at March 12, 2008 2:09 PM

Yer, sounding jaded, Hawk.

I got SLAPPed by a crooked lawyer working with a crooked judge in Virginia back in the '80's and refused to back down. Yep, the ole' defamation suit. 15 years later I won it in the Va. Supreme Court after almost going to jail for contempt for refusing to reveal my assets. It's no fun, and I can identify with TT.

But I'll tell you what, it was worth it for just that 1 hour in oral arguments before the Va. Supreme Court when one of the Va. justices get so mad at the opposing attorney that I thought he was was going to jump over the bench and "slapp" her. He kept asking her "How can this be due process??" And she kept ignoring the question. I realized then that a lot of these judges really do care.

I figure 20% of the lawyers and judges are skunks (like Spitzer) stinking up the system with their dishonesty; 10% are really honest and are going to do whatever is necessary to keep the skunks in line (like we thought Spitzer was); and the remaining 70% are just mules doing their jobs and not intentionally causing any messes but certainly not going to any special trouble to face off with the skunks. The system is slowly rotting with that kind of distribution, but the skunks and mules are doing just fine.

Posted by: Sofa King at March 12, 2008 3:01 PM

"I don’t think that what Frenkel was doing was inherently bad"

You still don't get it, patent hawk ?

Rick Frenkel could blog about just about anything in the world, anonymously or not, except ONE thing:

as an in-house legal counsel for a corporation involved in ongoing litigation he should NEVER EVER make any defamatory or simply false statements about opposing party's legal counsels.
Don't you see, the whole situation stinks badly:
in-house legal counsel for defendant anonymously (and very publicly) making false accusations against plaintiff attorneys...
Sure enough, he gets sued

Posted by: angry dude at March 12, 2008 4:58 PM

To the degree that defamatory or false statements were made, absolutely you are right, angry dude. I absolutely do get it. If you read between the lines of what I wrote, instead of just what was spelled out, my sentiments are clear.

Posted by: Patent Hawk at March 12, 2008 5:32 PM

Yer sharper than me, Hawk. I don't get it at all. I've read Ward's complaint and I've litigated my share of defamation cases, and I don't see anything in that complaint worth getting. Haven't seen the Albritton complaint yet. If it's no better than Ward's, somebody better get ready to defend against sanctions motions.

So where's the "false accusations" angry dude alludes to. To what do you allude, dude-in-a-bad-mood?

But one thing is for sure -- somebody is lying, and it doesn't look like TT to me.

The court documents say the ESN suit was filed Oct15.07. Albritton's Cover Sheet has the date Oct15.07. The ECF docket I saw today says there was a modification in the filing papers but doesn't say what the modification was. Dennis Couch is saying the ESN lawyers are now saying the complaint was filed 12:01AM on Oct16.07. Well, if it was filed on Oct16 why is the complaint ECF date-stamped Oct15? Why does Albritton's signature appear on a cover sheet dated Oct15?

I personally have a hard time believing that any wonderfully brilliant ego-bloated Texas lawyer could have lapsed into a state of rapacious stoopidity of such magnitude that they would file a patent infringement action before the patent ever issued. So there must be some other explanation for the complaint being marked Oct15, the day before the patent issued. God did it.

Posted by: Sofa King at March 12, 2008 6:53 PM

Hey, Sofa King

Read this comment and relax, before you get a severe migraine trying to think up some impossible explanations...


Posted by: angry dude at March 13, 2008 10:50 AM

Angry Dude, abide, man. Abide.

Here's the TT statement that's generating all the heat (copied from PatObv). I'll break it down for you [with my comments in brackets] and then compare it to Michael Smith's blog.

“I got a couple of anonymous emails this morning, pointing out that the docket in ESN v. Cisco . . . had been altered. [Absolutely true -- the ECF docket was altered and it says so.]

"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. [This is exactly what Smith's blog says happened. Somebody called the clerk and said "Hey, the date's wrong," and the clerk changed it.]

"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. [I saw exactly the same thing when I checked the electronic docket. There is no dispute over whether the date was changed from Oct15 to Oct16.]

"Only the EDTX Court Clerk could have made such changes. . . . [Absolutely true, at least as I understand the electronic filing system.]

"This is yet another example of the abusive nature of litigating patent cases in the Banana Republic of East Texas. [Un-actionable First Amendment opinion. "Banana Republic" is, of course, hyperbole and not actionable because it is not a verifiable fact. It also does not reflect on the plaintiffs. I don't think the USDC or Texas are plaintiffs in the defamation cases.]

Michael Smith's blog, which looks like a great blog, and which you kindly directed me to tends to confirm everything TT said except for the Banana Republic comment. According to Smith, there was an Oct15 filing date on the ECF copy of the complaint (I've seen it with my own baby blues), somebody (and it wasn't TT or Cisco) called up somebody else, presumably the clerk, and said "Hey, the date's wrong." And the clerk changed it.

OK, so -- again I'm askin' ya' -- where's the actionable falsehood? "Banana Republic?" Ha! If the defamation suits make it past demurrer, then that would absolutely confirm the Banana Republic opinion.

Posted by: Sofa King at March 13, 2008 1:30 PM