Chicago IP Attorney & Lawyer : R. David Donoghue : Chicago IP Litigation Blog

Niro Scavone's Joe Hosteny recently responded to my John Marshall Review of Intellectual Property article, The Uneven Application of Twombly in Patent Cases: An Argument for Leveling the Playing Field (click here to read it).  In the article, I argued that Twombly's increased pleading standard should be applied to patent cases, but that it was being applied unevenly to patent plaintiffs and defendants.  To fix that, I argued that plaintiffs should be required to identify the asserted claims and the products accused of infringing those claims in their complaints. 

Hosteny responded in his February 2009 IP Today column, the Litigator's Corner -- click here to read it -- contending that increasing pleading standards, in his experience, has either wrongly streamlined cases, where a defendant attempted to limit plaintiff to its original complaint regardless of what discovery later showed, or has increased the cost of discovery when plaintiff was required to move to compel after defendant unreasonably limited the scope of discovery defendant would provide based upon a more detailed complaint.

Hosteny admits his argument is based upon anecdotal evidence, and I do not fault him for that.  As litigators, we constantly rely upon our own anecdotal evidence to make decisions about our cases.  But I do disagree with Hosteny's conclusion.  If the Federal Circuit adopted rules requiring more detailed pleadings, or even if just an individual district court did it, just like with other rules a body of law would be created guiding litigants in future cases.  Over time Hosteny's anecdotal examples would stop recurring as defendants relied upon prior opinions telling them how much discovery beyond the claims was required.  And plaintiffs would learn how long they generally had to amend their complaints to add new claims or products.  So, while increased patent pleading standards might briefly increase the scope of discovery in patent cases, over time increased pleading standards would significantly reduce the cost and scope of patent cases.

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There has been a lot of coverage of Troll Tracker's recently disclosed identity.* Troll Tracker ended his anonymity a few weeks ago and now faces a libel law suit along with his employer, Cisco, based upon statements he made about a case involving Cisco -- this is one of the many reasons I do not write about cases that my firm or I are involved in.

I did not intend to weigh in on this story because there was not much to add (see below for links to some of the best coverage). But then I read Joe Hosteny's March 2008 IP Today article – click here for the article -- about anonymous blogging and anonymous commenting. Hosteny is a partner in the Niro Scavone firm, a firm that was often a focus of Troll Tracker's posts. I have not always seen eye to eye with Hosteny in the courtroom, but I found his article both very good and thought provoking.

Hosteny raises real concerns about how the anger surrounding the non-practicing entity dispute has gotten out of hand. Death threats over patent litigation (even assuming they are idle threats) cannot be tolerated. These threats make me question whether the patent litigation bar is maintaining the levels of civility and sanity required by our professional standards.

Violent threats and, more broadly, incivility have no more place in the realm of legal blogs than in the legal system. But it does not follow that anonymous blogging and commenting are inherently bad – the issue is more complex than that. Lots of electrons have been spilled over the pros and cons of anonymous blogging – blog guru Kevin O'Keefe is no fan of anonymous blogging, whereas the anonymous editor of Blawg Review provides a great service to both the legal and the blogging communities with the weekly Blawg Review, despite his anonymity.

Anonymous blogging is not the problem. The problem is with anonymous bloggers who believe that anonymity allows them to comment on cases involving themselves or their clients , or to post threatening comments (Troll Tracker, of course, never posted any threats that I am aware of). If Troll Tracker had not blogged about his client's case and if he had stuck to the verifiable facts, he likely would not have gotten sued.

Similarly, anonymous commenting is not the problem if legal bloggers, including Troll Tracker, monitored and approved comments before** they went live, the death threats against Niro never would have been published. I moderate the comments to this Blog and, as a result, angry rants against a judge or an attorney (none have been violent) do not make it on the Blog. And that anonymity may have provided the writer with false courage. But I prevent that, and so can any blogger, by acting as a gatekeeper.

Hosteny argued that anonymity is cowardly and not in the tradition of the First Amendment because the Declaration of Independence was signed by the Continental Congress. But he leaves out that the Federalist Papers were signed with aliases. Anonymity can be useful in that it can provide courage to voice ideas that otherwise might not be interjected into public discourse. For that reason, I think there is a place for anonymous blogging and commenting, as long as anonymous bloggers do not use anonymity as an excuse to avoid the rules of our profession and of common sense.

As promised above, for more coverage of Troll Tracker and the defamation suit, see:

E.D. Texas Blog

IP Law360 (subscription required, but a very thorough history)

Patently O -- discussing a related federal suit filed in the District of Arkansas, including a link to the complaint.

Prior Art Blog -- detailing the history of the suit and here and here on other aspects of the story as well.

WSJ Law Blog

[Update]:  Blawg Review #151 at Lex Ferenda was just updated discussing this post.

* There are no Troll Tracker links because the site is currently either down or subscriber only.

**  Troll Tracker did remove violent and offensive comments, but only after they were posted and he became aware of them.

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