If you cannot make the Applied Discovery roundtable discussion about the new Local Patent Rules that I am participating in this Wednesday, November 11, from 11:30 until 2:00pm (click here for more information and click here to register by email, but move quickly because space is running out), or if you just cannot get enough analysis of the Rules, check out what looks like it will be a great teleseminar by Law Seminars International, tomorrow from 2:00 until 3:00pm.* Law Seminars promises to address:
The background and history of the Rules;
What the Court is trying to achieve with the Rules; and
The Rules’ implications for plaintiffs and defendants.
The scheduled speakers include:
Allan J. Sternstein, Dykema Gossett PLLC
Edward D. Manzo, Cook Alex Ltd.
Paul K. Vickrey, Niro, Scavone, Haller & Niro, Ltd.
For registration information, click here.
* In the interest of full disclosure, I plan to attend using a media pass generously provided to me by Law Seminars.

Continue Reading N.D. Illinois Local Patent Rules: More CLE Opportunities

DePaul Law is hosting an impressive CLE program (11 hours of credit) this Thursday and Friday, October 15-16 at its downtown Chicago campus titled Cyberlaw 2.1: Legal Challenges of an Evolving Internet. The panels are largely academic and very impressive. Here is how DePaul describes the program:
[The conference] contemplates the changing role of the internet in society. These developments bring, as technological advances often do, both opportunities and risks. Correspondingly, cyberlaw doctrine now confronts challenges resulting from the increasing importance of social networking applications and cloud computing, the drive toward “personalization” of search, advertising, and other internet experiences, and, as life is lived more and more online, the related threats to private life caused by the potential to store more and more complete records of individuals’ experiences. Our speakers will explore the ways in which Web 2.0 and beyond affects a wide spectrum of legal issues, ranging from privacy and freedom of expression through intellectual property.
In connection with the program, DePaul is also hosting the 12th Annual Niro Distinguished Intellectual Property Lecture and Luncheon. The speaker will be Stanford’s Mark Lemley presenting his paper, “Irrelevant Confusion.” Click here to register and here for more information on either program.

Continue Reading CLE: Legal Challenges of an Evolving Internet

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.

Continue Reading Patent Pleading Standards: A Response

The Seventh Circuit’s Judge Posner is scheduled to begin a bench trial this morning on the issue of inequitable conduct in New Medium Technologies LLC v. Barco NV, No. 05 C 5620. The trial is scheduled to last today and tomorrow, but could go as long as Wednesday. I represented a party that was in the case, but settled and was dismissed from the case last year. As a result, I have not covered any opinions from the case, previously before Judge St. Eve. But I am going to observe some of the trial, and I may blog about the trial if I find some interesting things to say that relate more to the trial techniques of counsel or Judge Posner’s courtroom than the facts of the case.
But if you are interested in watching Judge Posner hear a patent case or what I expect to be some excellent advocacy from the Niro firm, for plaintiffs, and Baker & McKenzie, for defendants, the bench trial is being heard in Judge St. Eve’s courtroom.

Continue Reading Seventh Circuit’s Judge Posner Hears Northern District Bench Trial

Joe Mullin, an IP Law & Business reporter, has an excellent series of posts on his The Prior Art blog discussing the Harris v. Fish & Richardson case and the Patent Troll Tracker — click here for this blog’s coverage of the Harris case. Mullin has three posts with lots of details and has promised a fourth:
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.

Continue Reading Harris v. Fish & Richardson Update: Patent Troll Tracker Returning

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.

Continue Reading Ray Niro & Dennis Crouch on Anonymous Blogging

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.

Continue Reading Troll Tracker Allowed to Blog

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 the . 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
* 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.

Continue Reading Anonymous Bloggers Carry on Tradition of the Federalist Papers

Illinois Computer Research, LLC v. Google Inc., No. 07 C 5081 (N.D. Ill.) (Pallmeyer, J.).
Judge Pallmeyer is presiding over this case, which began as a standard case of a patent holding company, Illinois Computer Research (“ICR”) suing a large defendant, in this case Google, for patent infringement. The complaint was a standard three page notice pleading complaint alleging that Google infringed ICR’s patents based upon its Book Search functionality – click here for the original complaint. But the case quickly morphed into a dispute between a law firm, Fish & Richardson (“Fish”), and its former partner, the inventor and former owner of the patents in suit Scott Harris. ICR amended its complaint adding Fish and turning it in to a speaking complaint alleging that Fish forced Harris to resign because of the suit against Google and seeking a declaratory judgment that Harris, not Fish, owned the patent in suit – click here for the amended complaint.
Fish answered the amended complaint – click here for the answer – and filed speaking counterclaims alleging that Harris breached his partnership contract and fiduciary duties, and seeking a declaratory judgment that Fish owned the patents – click here for the counterclaims. Harris responded with his own speaking counterclaims alleging tortious interference and defamation – click here for Harris’s counterclaims and click here for Fish’s answer. Shortly after Fish’s second answer, Google was voluntarily dismissed with prejudice, but the case regarding Harris and Fish continued.
Fish filed a motion for expedited discovery, which the Court granted in court, without an opinion detailing the discovery allowed. Fish also filed a Fed. R. Civ. P. 12(c) motion for judgment on the pleadings seeking to dismiss plaintiffs’ tortious interference and defamation claims. That motion has been briefed, but not decided yet. And last week, Fish filed a motion to amend its counterclaims and third-party complaint naming six additional entities – click here for the motion. The motion does not identify the new parties specifically except to say that some are unnamed Doe defendants and that they are all related or believed to be related to Harris’s and ICR’s law firm Niro Scavone. Fish appears to be making a Propat-style argument that some or all of the additional defendants have or had an interest in the patent in suit and, therefore, are necessary parties. I will cover these opinions as they come out, but in light of all of the coverage this case has been getting – for example, see this recent Troll Tracker post and this case timeline at Joe Mullin’s The Prior Art Blog which Mullin promises to update periodically – I thought readers would be interested in some detailed background of the case. More to come as the Court issues opinions.

Continue Reading ICR v. Fish & Richardson: Patent Infringement Gets Personal

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.

Continue Reading Tribune on Patent Bounties