Read our latest coverage of patent law and intellectual property issues, from Silicon Valley to the U.S. Supreme Court.



Frenkel identified the local counsel on his blog, and called it “outrageous” that the Eastern District was apparently conspiring with ESN to “try to manufacture subject matter jurisdiction.”

Filing an infringement suit like ESN after the stroke of midnight on the day the U.S. Patent and Trademark Office issues a patent gives a plaintiff the opportunity to choose jurisdiction.

“This is yet another example of the abusive nature of litigating patent cases in the Banana Republic of East Texas,” Frenkel wrote in an Oct. 18 post.

The Eastern District is a nationally known forum for patent litigation because of rules that allow suits to progress speedily through the court system.

On Feb. 23, Frenkel, director of IP at Cisco, revealed his identity as the blogger.

Now, Frenkel and Cisco are defendants in two separate defamation suits filed by the two East Texas lawyers who are local plaintiffs counsel in ESN. The suits are attracting attention in Texas and in the IP blogosphere, not only because of the popularity of the Patent Troll Tracker blog, but because one of the lawyers suing Frenkel and Cisco is John Ward Jr., a son of U.S. District Judge T. John Ward who sits in the Eastern District.

John Ward Jr., a partner in Ward & Smith in Longview, filed his amended defamation petition against Cisco and Frenkel on Feb. 27 in Gregg County, but refiled in Arkansas federal court Thursday. Eric Albritton of the Albritton Law Firm in Longview filed a similar defamation suit on March 3 against Cisco and Frenkel in County Court-at-Law No. 2.

Albritton claims in his original petition that Frenkel published statements on the Internet alleging Albritton had conspired with the “Clerk of the U.S. District Court for the Eastern District of Texas” to “alter documents to try to manufacture subject matter jurisdiction where none existed.” Similarly, in his first amended petition, Ward alleges that Frenkel made “statements to the effect that plaintiff had conspired with others to alter the filing date on a civil complaint” Ward filed in the Eastern District of Texas on behalf of a client.

Lawyers for Albritton and Ward say their clients allege that Frenkel’s assertions on the blog are untrue and defamatory and that he wrote the blog during the course and scope of his employment at Cisco.

Ward’s lawyer, Nicholas Patton, a partner in Patton, Tidwell & Schroeder in Texarkana, says Frenkel’s postings about his client on Patent Troll Tracker are a “horrible thing,” and Ward had no choice but to sue to protect his reputation.

MEANWHILE, IN SAN JOSE �

Frenkel, who remains at Cisco, did not return a telephone message left at his office at Cisco, and a computer-generated reply to a message sent to his work e-mail indicated he was out of the office.

But Cisco’s and Frenkel’s lawyer, Charles Babcock of Houston’s Jackson Walker, wrote in an answer to Albritton’s suit that his clients deny “each and every substantive allegation.”

John Earnhardt, a senior manager of media relations at Cisco, says Frenkel wrote the blog independently of his job at Cisco.

“He was doing it on his own. Cisco didn’t set it up,” Earnhardt says. “My understanding is at some point, there were people … aware of it, after he had started it.”

Earnhardt declines to discuss Cisco’s policy on employee blogs. However, James Holmes, a Henderson solo who represents Albritton, says the issue of Cisco’s alleged involvement with Frenkel’s blog will be examined in discovery.

Frenkel posted the blog during Cisco work hours, Holmes alleges. “He posted about his own area of responsibility. In fact, ESN is his case. And he did it all with the knowledge of his direct supervisor,” Holmes alleges. “There are lessons to be learned there.”

“You’ve got the Cisco folks out there citing Troll Tracker as some sort of independent source on litigation, and it’s their own guy,” Holmes alleges. “That’s going to be a source of discovery.”

In his Feb. 23 posting in which he identified himself as the writer of the blog, Frenkel wrote that he might continue writing the blog but would take some time off. Patent Troll Tracker is now viewable by invitation only.

In a statement regarding the defamation suits, Cisco writes:

“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.”

DEFAMATION SUIT TRACKER

The state court litigation dates back to Nov. 7, 2007, when Ward filed John Ward Jr. v. John Doe, et al. in the 188th District Court in Gregg County. Ward initially filed a petition to conduct a deposition under Texas Rule of Civil Procedure 202, which says a party may conduct depositions prior to filing suit.

In January, 188th District Judge David Brabham granted a motion allowing Ward to take a deposition of an individual at Google Inc. Patton says he hoped the Google deposition would reveal who was writing the Patent Troll Tracker blog. However, Patton never took that deposition, because Frenkel revealed his identity as the blogger on Feb. 23.

Two days later, Ward filed an amended petition in the suit and changed the style to John Ward Jr. v. Cisco Systems Inc., et al . In the amended petition, Ward brings a defamation cause of action and alleges Frenkel knew that many people were reading the defamatory statements in the blog and Cisco was aware of Frenkel’s blogging.

Ward and Albritton each seek unspecified actual and punitive damages.

Patton says Frenkel’s allegations in the blog are not “protected speech” under First Amendment law. Additionally, Patton notes, nothing about the filing of ESN v. Cisco was out of the ordinary.

“Anybody that knows the rules in the Eastern District knows that what happened here is exactly how business is conducted in the Eastern District,” Patton says. In the Eastern District, Patton says, the clerk’s office will assign a case number and a judge to a suit 24 hours before it is filed when a lawyer calls the clerk’s office with the request and sends in a cover sheet for a civil suit.

“On the 15th they sent in the civil cover sheet after they had called the clerk’s office, requesting a number. That patent was to issue on the next day, the 16th, so they filed at 12:01 on Oct. 16. There was a mistake by the clerk’s office as to dates that was corrected by the clerk to show what had happened,” Patton says. “Nobody made any attempt to alter a government record.”

He says an amended complaint in ESN v. Cisco was filed on Oct. 16, 2007, simply to allow the plaintiff to attach a copy of the patent. Patton says Frenkel could have determined the suit was filed properly by calling the clerk’s office, but instead the Cisco lawyer “just made the accusation” in the blog.

Eastern District Clerk David Maland says there was no conspiracy. However, he says the clerk’s office did make a “correcting entry” to the filing date of the original petition.

Patton, who does IP litigation and has read the Patent Troll Tracker blog on occasion, says he was upset by Frenkel’s comment calling the Eastern District the “Banana Republic of Texas.”

“It offended the hell out of me,” says Patton. “This is not a Banana Republic up here. I’ve practiced in the district for years and years, and I’ve never seen anything up here but superb judges.”

Recorder reporter Zusha Elinson contributed to this story.