Troll Tracker defamation trial underway in Tyler

Michelle Massey, East Texas Bureau Sep. 16, 2009, 7:50am


A trial is underway in Tyler that pits one of East Texas' most prolific filers of patent infringement suits against one of the world's biggest Internet networking companies and a mysterious blogger.

Attorney Eric Albritton claims a former Cisco Systems employee posted untrue statements about him on a patent litigation blog. Albritton filed a defamation suit against the company and its blogging employee last year.

The trial began in the Tyler Division of the Eastern District of Texas on Sept. 14. U.S. District Judge Richard A. Schell is presiding.

At issue are the contents of blog posts written by Patent Troll Tracker, who identified himself as "just a lawyer, interested in patent cases, but not interested in publicity." The blogger regularly wrote about companies and attorneys he considered patent trolls.

A "patent troll" is considered a somewhat derogatory term for companies that allegedly buy patents for the sole purpose of suing other companies for infringing the patents. The Patent Troll Tracker reported on those companies and their current patent infringement litigation.

The identity of the blogger was a mystery until a Chicago plaintiff's lawyer offered a $15,000 bounty to uncover the Patent Troll Tracker. At that point, Richard Frenkel, then the director of intellectual property for Cisco Systems, revealed that he was behind the blog.

Albritton filed the lawsuit on March 3, 2008, against Frenkel and Cisco Systems Inc., after Frenkel wrote that Albritton and another lawyer conspired with the district clerk's office for the Eastern District of Texas to alter the date of a lawsuit filing in an attempt to manufacture subject matter jurisdiction.

The other attorney named in the blog posts was T. John Ward Jr., son of U.S. District Judge T. John Ward of Marshall, who is known for his "rocket docket" of patent infringement cases. Ward Jr. and Albritton frequently work together as co-counsel representing plaintiffs in patent infringement suits.

The attorneys each filed suits against Frenkel and Cisco in state district courts in Texas, but Cisco removed Albritton's case to federal court. Ward non-suited his state case, and re-filed it in the U.S. District Court for the Western District of Arkansas.

Albritton claims Frenkel wrote the blog during the course and scope of his employment at Cisco.

However, Ward dismissed Frenkel from his case, which is set for trial against Cisco in February 2010.

Case background

The suits stem from posts by the Patent Troll Tracker in October 2007.

Frenkel wrote about a lawsuit against his employer Cisco by ESN, a patent-holding company. He claimed that the filing date of the lawsuit had been altered.

Frenkel contended that whoever was able to file the patent lawsuit first would likely be able to retain their chosen venue. ESN was seeking to get venue in East Texas and Cisco was hoping for Connecticut, where ESN is based.

More importantly, Frenkel wrote that original filing date of Oct. 15, 2007, was significant because ESN's attorney filed the infringement lawsuit a day before the patent was approved on Oct. 16.

The blog posts at issue state, in part, "One e-mail suggested that ESN's local counsel called the EDTX court clerk, and convinced him/her to change the docket to reflect an Oct. 16 filing date, rather than the Oct. 15 filing date."

"...That's exactly what happened – the docket was altered to reflect an Oct. 16 filing date and the complaint was altered to change the filing date stamp from Oct. 15 to Oct. 16. Only the EDTX Court Clerk could have made such changes," Frenkel wrote.

A few days after posting the comment, Frenkel rewrote the last line of the blog but the amended version is not included with either of the lawsuits:

"Even if this was a 'mistake,' which I can't see how it could be, given that someone e-mailed me a printout of the docket from Monday showing the case, the proper course of action should be a motion to correct the docket. "

Albritton claims there was nothing unusual about the filing date of ESN v Cisco. In the Eastern District, the district clerk's office will set up a shell case file and assign a case number and judge 24 hours before the complaint is filed.

Cisco filed a motion for summary judgment that argued that Frenkel's comments were essentially true, and therefore not defamatory. The company claimed that without notifying them, Albritton made several phone calls to the clerk's office to correct the date instead of filing a motion to correct the filing date.

Taking responsibility for the content of the blog, Cisco stated that Frenkel's comments were his own and that no one required him to write on any specific topic, but because of his employment, he should have made his relationship with Cisco clear.

A Cisco spokesperson stated, "We continue to have high regard for the judiciary of the Eastern District of Texas and confidence in the integrity of its judges."

The defendants assert that the articles did not accuse the plaintiff of engaging in criminal or unethical conduct and that the articles are afforded full constitutional protection.

They argue that Albritton is a limited public figure, holds himself as an expert in patent litigation and has met with public officials to discuss patent venue reform legislation.

Albritton is seeking damages for shame, embarrassment, humiliation, mental pain and anguish. He claims he has suffered injuries to his "business reputation, good name, and standing in the community, and will be exposed to the hatred, contempt, and ridicule of the public in general as well has of his business associates, clients, friends, and relatives."

Albritton is represented by Texarkana attorney Nicholas H. Patton of Patton, Tidwell and Schroeder LLP; Henderson attorney James A. Holmes; and Emeryville, Calif., attorney Patricia L. Peden.

Charles "Chip" Babcock, a partner in Jackson Walker in Houston is representing Cisco. George McWilliams, a solo practitioner in Texarkana, is defending Frenkel, who is now of counsel at Wilson Sonsini Goodrich & Rosati in Palo Alto, Calif.

Albritton v. Cisco et al, Case No 6:08cv00089

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