The Daily Journal's Tuesday edition (not linkable) reports that Troll Tracker author Rick Frenkel, and his employer Cisco, have been sued for defamation by two East Texas attorneys who are players in that district's patent litigation scene, Eric Albritton and T. John Ward, Jr.

T. John "Johnny" Ward, Jr. is a Texas lawyer who has filed a large number of patent infringement lawsuits in recent years. Between January and mid-October of 2007, his name was attached to 54 separate lawsuits by my count; in all but four, he represented the plaintiff. He is also, as I reported in October, the son of Judge T. John Ward, the judge who is largely responsible for making the Eastern District of Texas a hotspot for patent litigation.

I haven't yet read the complaints. But I did re-read a copy of the Oct. 17, 2007 post two October posts that apparently inspired the lawsuits. (that's a small assumption on my part--but it's one of only a few posts that mentions Cisco and the only one I know of that mentions both Cisco and Ward & Albritton, and Craig Anderson's DJ story says the post is from October.) The Oct. 17 post is titled "Troll Jumps the Gun, Sues Cisco Too Early," and alleges that Ward & Albritton filed an amended complaint solely to change the filing date on a lawsuit where Cisco was a defendant.

The 10/17/08 Troll Tracker post begins:

Well, I knew the day would come. I'm getting my troll news from Dennis Crouch now. According to Dennis, a company called ESN sued Cisco for patent infringement on October 15th, while the patent did not issue until October 16th. I looked, and ESN appears to be a shell entity managed by the President and CEO of DirectAdvice, an online financial website. And, yes, he's a lawyer. He clerked for a federal judge in Connecticut, and was an attorney at Day, Berry & Howard. Now he's suing Cisco on behalf of a non-practicing entity.



I asked myself, can ESN do this? I would think that the court would lack subject matter jurisdiction, since ESN owned no property right at the time of the lawsuit, and the passage of time should not cure that. And, in fact, I was right:

(he goes on..)

Of course, Frenkel works for Cisco, as we now all know. So it's unlikely that he was actually, as he says, "getting [his] troll news from Dennis Crouch now." I'd guess he was well aware of the ESN lawsuit. Still, he was careful to write about it after Patently-O author Crouch, who reported the same basic facts: that the ESN v. Cisco patent infringement lawsuit was filed on 10/15/2007, a day before the patent in question was actually issued, thus "jumping the gun." Crouch didn't mention the amended complaint, which hadn't yet been filed.

In this subsequent motion, Ward and Albritton say they filed the ESN v. Cisco lawsuit at 12:01am Central Time on 10/16, and that Cisco filed suit in Connecticut ten and a half hours later, at 11:32am EST 10/16. They insisted the case should be kept in Texas. , but then apparently changed their minds--they stipulated to dismissal on Nov. 2.

The PACER entry does list 10/15/07 as the date he lawsuit was filed, but the first document--the complaint--is listed as being filed on 10/16.

Back to the Troll Tracker 10/17 post:

One other interesting tidbit: Cisco appeared to pick up on this, very quickly. Cisco filed a declaratory judgment action (in Connecticut) yesterday, the day after ESN filed its null complaint. Since Cisco's lawsuit was filed after the patent issued, it should stick in Connecticut. Perhaps realizing their fatal flaw (as a couple of other bloggers/news items have pointed out), ESN (represented by Chicago firm McAndrews Held & Malloy and local counsel Eric Albritton and T. Johnny Ward) filed an amended complaint in Texarkana today - amending to change absolutely nothing at all, by the way, except the filing date of the complaint. Survey says? XXXXXX (insert "Family Feud" sound here). Sorry, ESN. You're on your way to New Haven. Wonder how Johnny Ward will play there?

And how will a Silicon Valley lawyer who referred to East Texas as a "Banana Republic" play in Longview? Albritton and Ward Jr. have probably hauled enough Californians into court to know the answer to that one.

UPDATE: A Cisco spokesperson asked me to add their statement on this issue:

"The parties have mutually agreed to make no comment on the lawsuit in question at this time. That said, we would like to underscore that the comments made in the employee's personal blog represented his own opinions and several of his comments are not consistent with Cisco's views. We continue to have high regard for the judiciary of the Eastern District of Texas and confidence in the integrity of its judges."

I should also add that the only place I have seen the "Banana Republic" comment thus far is in today's Daily Journal. Craig Anderson writes: "In the October posts at issue in the complaints, Frenkel accused the court of conspiring with the company, on whose behalf the Texas lawyers had filed the patent infringement lawsuit at issue, and referred to the court as 'the Banana Republic of East Texas.'"

It does not appear in my version of the TT posts, which were saved on Feb. 25. But there is a notation that indicates the October 18 post was edited later. I may post up relevant portions of other posts at a later date, but I'm going to hold off until I'm clear on what the accusations are.

UPDATE again: This post has gotten a lot of attention. (Can't read Troll Tracker, work sucks, what're you going to do?) I'll write more on this soon. Meanwhile my colleague Zusha Elinson at The Recorder has a bit more on Cisco and Troll Tracker here.