Anyone who has followed the patent blogs since last year is familiar with the now-defunct "Patent Troll Tracker Blog", penned by Rick Frenkel, who, at the time, was in-house patent counsel for Cisco. When commenting on patent holding company ESN and it's lawsuit against Cisco, Frenkel alleged on the blog that the filing date for that patent suit was changed after ESN's local counsel "called the EDTX court clerk, and convinced him/her to change the docket to reflect an October 16 filing date, rather than the October 15 filing date." This change was made, according to Frenkel, in order to "try to manufacture subject matter jurisdiction."
ESN's counsel Eric Albritton claims that Frenkel's remarks were defamatory and sued Frenkel together with his employer Cisco, alleging that the company was complicit in posting the allegedly defamatory remarks.
On Monday, the "Patent Troll Tracker" lawsuit began with jury selection and opening arguments. Joe Mullin, who is a reporter at IP Law and Business magazine and author of the Prior Art Blog, is sitting in on the trial and is providing blow-by-blow reporting from the courtroom. From Mullin's post:
- James Holmes [for plaintiff Albritton] said his team will show that Frenkel's posts accused Albritton of a felonious "conspiracy" and were "hurtful, painful, [and] disturbing" to Albritton. Cisco, a $33 billion company, should be taught a lesson by being forced to pay punitive damages, the lawyers said.
- Holmes showed e-mails exchanged between Frenkel, former Cisco patent chief Mallun Yen, and former PR man John Noh--who told his boss he liked to 'play a game' with journalists by pretending he didn't know that the Patent Troll Tracker was actually a Cisco employee.
- Defense lawyers Babcock and McWilliams said Frenkel's post about the changed docket date was dead-on true, noting that no court clerk in the Eastern District could remember ever having changed a docket before. In any case, they maintain Albritton hasn't suffered any financial harm, and he has no real evidence to support his claim of "mental anguish."
- Babcock also argues the defamation lawsuit is intended to gain some leverage against Cisco in ongoing patent lawsuits—and, not coincidentally, squashing Frenkel's attempt to shine a light on the murky world of patent trolls.
See also Texas Lawyer, "Trial to Begin in Suit Against Cisco, Patent Troll Tracker Blogger" (link)