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

1. Harris has dropped his subpoena for a deposition of Rick Frenkel, the previously anonymous creator and author of the Patent Troll Tracker -- click here for the post.  The post includes detailed analysis of each party's declaratioins and allegations about the other. 
   
   
2. Frenkel, in a declaration related to the subpoena for his deposition, stated that his Patent Troll Tracker blog will return -- click here for the post.  Unfortunately, Frenkel did not give a date for his blog's return.  While I have not always agreed with the Troll Tracker (for example, I  am not a fan of the "Troll" name), Frenkel researches and writes very well and it will be good to have his voice back as part of the blog conversation.
   
   
3. Mullin's third post is a detailed analysis of whether Frenkel is a reporter, including an analysis of Harris's arguments, through the Niro Scavone firm, that he is not -- click here for Mullin's post.  Mullin concludes that Frenkel is a reporter.  The facts that he wrote anonymously, did not reveal his sources and was advocating a position (which Harris argued meant Frenkel was not a reporter) do not mean Frenkel could not be reporting.  Mullin explains that there is a long history of both advocacy in reporting and anonymous reporting, and that reporters generally do not reveal anonymous sources.
   
   
4. Mullin promised a fourth post this week about anonymous blogging, a subject I have weighed in on several times -- click here for the Blog's anonymous blogging posts.  I will likely comment on Mullin's post once it is up.  But I think he previewed his position when he posted over the weekend that he was discontinuing moderation of comments and welcomed anonymous comments.

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I thought I was done discussing anonymous blogging -- click here for my posts about Troll Tracker and anonymous blogging.  But the Legal Talk Network's Lawyer 2 Lawyer podcast has just published an edition about Troll Tracker and anonymous blogging featuring Ray Niro Sr. of Niro Scavone (who offered $15,000 for anyone who revealed Troll Tracker's identity) and Dennis Crouch of Patently-O.  It is a very interesting set of interviews.  I only wish that Niro and Crouch had been on together, instead of in separate interviews.  Here are some highlights:

• Niro stated that no one has claimed the $15,000 reward for identifying Troll Tracker.
  
• Niro emailed Troll Tracker and offered to donate the reward to charity (at that time it was $10,000) and fly Troll Tracker to Chicago to meet with Niro and see his firm.

• Niro went back and forth between saying that anonymous blogging was wrong and that it was harmful and should not be allowed because you could not judge the author's credibility.
  
• Crouch supported anonymous blogging, done correctly, but acknowledged that anonymous comments on his site tended to be more aggressive than those with identified authors.
  
• Crouch offered Troll Tracker an opportunity to contribute to Patently-O.
  
• Crouch sees much of this as a generational change.  Among other things, those under thirty have no expectation of privacy or concern at revealing their identity on the internet.  Those over thirty are careful with their privacy and identity, making anonymity more enticing.  That suggests that anonymous blogs will become less prevalent with time.  Troll Tracker is likely mid-thirties, putting him right on the cusp of Crouch's dividing line.
  
• Crouch's generation-split argument may have been displayed when Niro and Crouch were asked for their contact information.  Crouch told people to go to Patently-O.  Niro was uncomfortable providing his contact information and, when gently prodded, explained that he could be contacted through his firm, Niro Scavone.  Of course, Niro's reluctance could also be explained by the anonymous threats made against him in the recent past.

Finally, Business Week has a good article detailing the Troll Tracker story -- click here to read it.

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Dennis Crouch at Patently-O is reporting that Cisco has amended its employee blogging policy to require that any Cisco employee blogging about issues involving or related to Cisco identify themselves as a Cisco employee and provide a disclaimer that the opinions are those of the employee alone and not necessarily Cisco.  This is a reasonable policy.  It provides Cisco's employees the freedom to blog while protecting both Cisco and its employees.  And it prevents future occurences of the mistake Troll Tracker made (anonymously commenting on cases his employer was involved in), as I discussed in my post on anonymous blogging last week, click here for the post.

Cisco also told Crouch that Troll Tracker would be free to continue blogging, presumably as long as he follows the policy.  Hopefully, that means that Troll Tracker will return to the patent litigation conversation soon, although it is easy to believe that this experience may have soured him on blogging or changed his voice substantially.  Here is Cisco's explanation of Troll Tracker's status from Cisco's official blog, The Platform:

As an employee, Rick is free to continue his personal blog, Patent Troll Tracker, in compliance with the revised policy. Rick has many fans who appreciate the information he collects and disseminates on patent litigation trends and recognize his blog as an important voice in the on-going national dialogue on patent issues.

IP Law360 (subscription required) has a detailed article this morning outlining Troll Tracker's history, including several quotes from Ray Niro of Niro Scavone who received substantial media attention after offering a reward for Troll Tracker's identity.  Niro reportedly likened Cisco's policy to "repairing a sidewalk after someone was hurt" and said that some of Troll Tracker's statements were "hurtful, harmful and, in many cases, 100% inaccurate."  According to the article, Niro plans to depose Troll Tracker in Illinois Computer Research, LLC v. Fish & Richardson, No. 07 C 5081 (N.D. Ill.) (Pallmeyer, J.) -- click here to read more about the case in the Blog's archives.

Another note on anonymous blogging and commenting, Rob LaGatta at LexBlog addressed the Troll Tracker situation and my anonymous blogging post last week with an important point, click here for Rob's post.  Anonymous blogging and commenting is a relatively small part of legal blogging and most anonymous material is not problematic.  It is easy to get side-tracked by the occasional offensive anonymous content.  But the vast majority of legal blogs operate without problems with either unprofessional or anonymous content.

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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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Several unrelated legal stories that are worth a read:

• An excellent Illinois Business Law Journal article regarding whether Google is losing its trademark to genericide.  It concludes that Google's mark is relatively safe, partly because Google's trademark is identical to its domain name.*
  
• Patent Troll Tracker has been unmasked.  The unmasking was based, at least in part, on Ray Niro's bounty for Troll Tracker's name.  As would be expected, Troll Tracker unmasked himself with class and a sense of humor.  He is taking a few weeks off from blogging to decide whether to continue.  I hope he decides to continue.  Troll Tracker is a powerful voice on some complex issues, and he is right that it is great to see another inhouse legal blogger.  Plus, it would be a shame for Troll Tracker to disappear just after Ron Coleman finally discovered him. 
  
• Blawg Review #148 is up at Blawg IT.  In addition to the usual links to law blog posts, Brett helps us smell the electronic roses with numerous non-legal video clips.

*  Hat tip to Michael Atkins at the Seattle Trademark Blog for pointing out the article during his Trademark Dilution Weekend.

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I have run across a couple of items that fall outside of the Blog's Northern District IP focus, but that are useful for all of us focused on resolving IP disputes in the courts:

• An Idaho Business Review* article about a patent trial between Rambus and Micron reminded me of the importance of viewing trial proceedings through the eyes of the jury.   The reporter explained that after a week and a half of proceedings, much of them under seal, the Court has issued an order requiring that the jury be provided daily refreshments paid for by the United States.  That was the extent of what the reporter knew about the proceedings.  Of course, the Court likely decided numerous complex issues during the week and a half, but all the reporter, and likely the jury, saw was mysterious and sometimes frustrating delay.  Lawyers often forget how juries see repeated sidebars and morning or mid-day motion hearings.  Do your best to fill in or at least explain the gaps and delays for your jury, otherwise they will do it themselves. 
  
• Patent Troll Tracker identified this blog by E.D. Texas patent defendant Desire2Learn chronicling its ongoing patent infringement trial.  This is dangerous territory for a litigant, but it could be a fascinating look at the trial process from the corporate litigant's vantage point.

*  Why do I read the Idaho Business Review?  I don't.  I found the article through the wonders of RSS feeds and content searches.  Thank you Kevin O'Keefe and LexBlog for teaching me the power of RSS.

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The Tribune ran a story in its weekly legal industry column yesterday about Ray Niro, senior partner in local patent litigation firm Niro Scavone and a very accomplished trial attorney. Niro is in a dispute with anonymous blogger Troll Tracker. Troll Tracker focuses his blog on cases brought by patent licensing companies or non-practicing entities,* a number of whom are represented by Niro and the Niro Scavone firm. Because of the firm’s prominence in plaintiff-side patent work, Troll Tracker has also discussed both Niro and the firm. That drew Niro’s attention. Niro sent the anonymous Troll Tracker a letter accusing him of infringing a patent held by client Global Patent Holdings which the Tribune described as “covering the compression of data over the Internet, a technology that allows, for instance, Web sites to display JPEG images.” Niro then offered a $5,000 “bounty” for unmasking Troll Tracker’s identity, which he later increased to $10,000. Here is how Niro explained the bounty in the Tribune article:

I want to find out who this person is . . . . Is he an employee with Intel or Microsoft? Does he have a connection with serial infringers? I think that would color what he has to say."

I have generally stayed away from this story because it is closer to patent gossip than the Northern District IP litigation that is the focus of this blog. But I felt that I should cover it since it ran in the Tribune. 

* I have posted before about my dislike of the patent troll name – click here for a post which discussed the Troll Tracker blog and here for a post about Ray Niro’s article calling for an end to the use of patent troll. I think it carries unnecessary baggage and creates unnecessary animosity in legal proceedings that tend to generate plenty without injecting more. So, I was glad to see last week that Troll Tracker is pulling away from the use of the name – click here for Troll Tracker’s post about the term.

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The blogs are full of commentary about yesterday's Supreme Court patent exhaustion argument.  But no one is declaring a winner.  Instead, like my earlier post, people are focusing on trends in the Justices questions.  Here are some of the best commentaries:

• Amster, Rothstein & Ebenstein has a guest post all over the blogs -- read it at Patently-O, 271 Patent Blog, and Philip Brooks' Patent Infringement Updates.
  
• Anticipate This!
  
• I/P Updates -- quoting Chief Judge Roberts:  "We've had experience with the Patent Office where it tends to grant patents a lot more liberally than we would enforce under the patent law."  Ouch.
• ScotusWiki -- This is a companion to the well-known SCOTUSblog (which does not have any commentary about the argument posted yet).  ScotusWiki does not provide any commentary, but it is a great resource for information about this case, and any other Supreme Court case.
  
• Troll Tracker -- predicting a 5-4 or 6-3 reversal of the Federal Circuit (although only "leaning" that way and only predicting a "slight" reversal) and, similar to my post, picking up on Justice Breyer's cycling theme, but without professing a love for the sport.

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There were 140 patent cases filed in the Northern District during 2007, an 11% increase from the 126 patent cases filed in 2006. This maintains the Northern District’s status as the fifth largest patent district. According to TrollTracker (click here for TrollTracker’s year end filing analysis), the Eastern District of Texas was first with 364 filings, more than 2.5 times the Northern District’s filings. The Central District of California came in a distant second with 272 patent filings, followed by the District of New Jersey at 187, the District of Delaware at 147 and then the Northern District. Of the Northern Districts 140* filings, 49 or 35% were disposed of during 2007.

A list of each case, the case number, the filing date and, where appropriate, the date the case was resolved are provided after the jump. In the next week or two, I will be doing similar posts for trademark and copyright cases filed during 2007.

A hat tip to the Maryland Intellectual Property Law Blog for its 2007 IP review series that pushed me to start my own review of 2007 IP cases.

* TrollTracker reports 137 patent cases. The discrepancy may be explained by several cases filed during the last few days of the year that did not make it to Pacer until after January 1.

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