Rick Frenkel – who until recently was known only as the Patent Troll Tracker – has now been sued for defamation by two Eastern District of Texas lawyers: Johnny Ward, Jr. and Eric Albritton. Frenkel recently revealed himself as an IP Director at Cisco Systems. Cisco is also a named defendant in the lawsuit. Ward has represented many plaintiffs in E.D. Texas patent cases and is the son of Federal Judge John Ward of the Eastern District of Texas.
The whole case seemingly stems from a Patently-O posting on October 16, 2007. That post, titled “Patent Office Has Stopped Examining Patents with 25+ Claims,” included a short blurb about a seeming “preemptive strike” by the patent holder ESN:
From Patently-O: In another preemptive strike, on October 15th, ESN sued Cisco for infringing Patent No. 7,283,519. Unfortunately, the patent did not issue until the 16th of October. [Link]
Of course, a patentee has no standing to sue until after the patent issues, even if you know that the patent will issue the next day. The Patently-O post included a link to ESN’s complaint that had an October 15 electronic time-stamp and a civil cover sheet dated October 15. Ward and Albritton were involved in this case, apparently serving as local counsel for the McAndrews firm.
By October 18, the PACER filing information still reflected that the case had been originally filed on the 15th, but the PACER complaint filing date now indicated October 16. (See thumbnail screenshots.) This date became potentially important because, in the meantime, Cisco had filed a declaratory judgment action against ESN in Connecticut. (First-to-file with standing usually wins venue.)
On October 18, the Troll Tracker posted what are seemingly his most pointed comments about the case:
“I got a couple of anonymous emails this morning, pointing out that the docket in ESN v. Cisco . . . had been altered. One email suggested that 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. I checked, and sure enough, that’s exactly what happened – the docket was altered to reflect an October 16 filing date and the complaint was altered to change the filing date stamp from October 15 to October 16. Only the EDTX Court Clerk could have made such changes. . . . This is yet another example of the abusive nature of litigating patent cases in the Banana Republic of East Texas.”
In a different post, PTT mentioned that Ward and Albritton represented ESN and that they might not “play well” in a Connecticut court.
Moot Point?: Since then, ESN v. Cisco has been dismissed by agreement of the parties, and the original filing dates have become meaningless and moot. However, Ward and Albritton remembered Frenkel’s comments. Within three days of Frenkel’s “outing” a defamation lawsuit had been filed in Texas state court. At this point, none of the parties are discussing either case in public except that Cisco “continue[s] to have high regard for the judiciary of the Eastern District of Texas and confidence in the integrity of its judges.”
Seeing an opportunity, the Howrey firm has now declared that it “absolutely won’t represent trolls.” Is the patent bar in the midst of a split? [Joe Mullin has the Howrey Advert]
Documents:
Notes:
- Although I have not always agreed with Frenkel’s opinions, he has been a great addition to the public debate over patents and patent reforms. His analysis has always been fresh. On several occasions, I double-checked the factual basis of his reports, and each time found them spot-on. I do hope that he’ll be back with more caustic analysis. I’ve been sitting on this story for a while now. Although not a named party, my name appears in the filings. Craig Anderson (DailyJournal) apparently broke the story in a hardcopy version.
- This case may serve as a caution to Patently-O “anonymous” commentors. A defamed individual may have ways to figure out your identity.
- ESN has explained that it actually filed the complaint at 12:01 am on October 16.
- A couple of days after posting the comment above, PTT deleted the above quoted material and replaced it with the following: “You can’t change history, and it’s outrageous that the Eastern District of Texas may have, wittingly or unwittingly, helped a non-practicing entity to try to manufacture subject matter jurisdiction. Even if this was a “mistake,” which I can’t see how it could be, given that someone emailed me a printout of the docket from Monday showing the case, the proper course of action should be a motion to correct the docket. (n.b.: don’t be surprised if the docket changes back once the higher-ups in the Court get wind of this, making this post completely irrelevant). EDIT: You can’t change history, but you can change a blog entry based on information emailed to you from a helpful reader.” [Mullin]
- Reporter, Joe Mullin has more background — According to his report, Ward filed the complaint in November and had been in the process of unmasking the troll.
- Joe Mullin Reports on the Case
- Legal Blog Watch
- Legal Pad reports on the Case
- Forbes has a quite flippant view
- Zura Reports
- Mark Randazza
- Robert Ambrogi
But I do know one thing:
Vigilantibus non dormientibus æquitas subvenit.
…or much of a speller for that matter. Practitioner that is.
Sorry sofa king, I am not an EDTX practioner or a Texas attorney for that matter, I am telling you what is posted on the EDTX blog. But can you tell me what is so backward about conducting administrative preparation for a substantial filing in advance? If anything, to me, it shows a certain amount of diligence. Sort of the opposite of laches don’t you think?
Greetings Citizens of the IP community et al.,
Hear Ye, Hear Ye Here’s the Thing:
YES, it makes a material difference WHO is saying WHAT.
It almost can go without saying that one must, of course, Consider the Source:
link to springerlink.com
The very purpose behind of the passing of THE LOBBYING DISCLOSURE ACT OF 1995 was —
DISCLOSURE of WHO is LOBBYING for WHAT.
When executives, comprising the IP Director et al., of a Fortune 100 public company like CISCO SYSTEMS Inc. (“CISCO”) email their biased corporate lobbying agenda, i.e., Pejorative Patent Propaganda,* in the guise of “Patent Troll Tracker blog” anonymously and repeatedly to one or more executive branch or legislative branch official(s) for years, all the while purposely promoting the public perception of Patent Troll Tracker as presenting a “public service,” I say, PUBLIC et al. BEWARE.
As discussed in detail in this comment (above) on this link,
link to patentlyo.com
———————————————————
— AMERICA’S STRONG PATENT SYSTEM (“our System”) has been on Public Trial for years, and to date our System has suffered dramatic and fundamental loses:
(i) Traditional strengths of patents previously issued by the PTO have been eroded.
(ii) Currently, the PTO is rejecting more patent applications than ever in its history.
This much damage has been done. These are FACTS, and they are not in dispute —
———————————————————
To me, Jaoi, it has become clear, unmistakable, unambiguous and even self-evident that, by operating Patent Troll Tracker blog anonymously for years, CISCO accomplished its lobbying mission (I wonder if Rick got a bonus last year {;-?) —
CISCO effectively poisoned the jury pool trying, and those sitting in judgment of, America’s Strong Prestigious Premier Patent system – historically, our System had been the envy of all the world’s self-employed independent inventors and entrepreneurs.
Who can now deny that CISCO materially contributed to the major deconstruction of the American patent system in violation of the LOBBYING DISCLOSURE ACT OF 1995, and that CISCO should be held accountable to We the American People, and that that is a large part of why CISCO took down the blog after it was discovered who was anonymously operating that now-defunct blasphemous blog.
——————–
* CaveMan’s definition of propaganda tells it like it is:
“‘Propaganda is a concerted set of messages aimed at influencing the opinions or behavior of large numbers of people. Instead of impartially providing information, propaganda in its most basic sense presents information in order to influence its audience.’”
“‘…propaganda presents facts selectively to encourage a particular synthesis, or gives loaded messages in order to produce an emotional rather than rational response to the information presented. The desired result is a change of the cognitive narrative of the subject in the target audience.’”
* * * * *
This is Jaoi(TM) and I approved this message, and my religious advisor for the past thirty-seven years has been a saint-like Jamaican lady with a heart of gold who has been an integral part of my family raising my two children teaching family values, love and forgiveness to all.
“Also to Sofa King Appalled, I am sofa king happy to direct you to Michael Smiths EDTX blog who has explained the date issues in the context of routine EDTX practice.”
The link is:
link to mcsmith.blogs.com
Cave
What were those routine EDTX procedures again?
Pre-file the civil cover sheet before midnight, then wait until 1 minute after midnight to file the infringement complaint, then wait for the patent you are enforcing to issue sometime later in the day, then call the clerk and tell him to adjust the filing date. Then, if anyone complains or questions what happened, SLAPP them.
This is “routine EDTX practice?”
I refer you back to TT’s comment about a Banana Republic.
Rick, Dennis, Smith, Gary Odom and others have provided a valuable public service in throwing light on these “routine practices.” Your assistance is appreciated, too.
Also to Sofa King Appalled, I am sofa king happy to direct you to Michael Smiths EDTX blog who has explained the date issues in the context of routine EDTX practice. Truth apparently will not be a defense here.
Dear Sofa King & Malcolm Mooney,
Nice picture postcard photo of youse two together, only I’m confused – you can’t both be on the right?
link to howappealing.law.com
Who of youse two is holding the reins?
Happy Saint Patrick’s Day
link to history.com
Well, the statistics I was referring to will work out something like the following — with wild numbers here.
The proportion of lawyers who have a parent on the bench — say, 1:50,000? — times the proportion of lawyers sanctioned per year — say, 1:1000? — equals a probability of 1 in 50 million. Slim.
“What’s the chances of getting sanctioned in a district where your daddy is a judge? I’d like to see the statistics on that.”
Be careful!!!!! According to JAOI and Co., this disturbing inuendo regarding a conspiracy between a judge and his son could cause one or both of the two men to rend his garment as he imagines a mild stain upon his otherwise gleaming reputation.
Sewing that ripped fabric could cost upwards of twenty five bucks, even more if its satin underwear.
Seems to me that Just Another Troll and Cave, and apparently Ward, are having trouble grasping one basic but important issue: truth is an absolute defense to defamation.
Everything TT said in that post is verifiably true except for the Banana Republic slam, which is non-actionable opinion. The documents were marked Oct15 and the clerk changed the date to Oct16. End of story. End of liability.
Unfortunately, not the end of SLAPP, because the purpose of SLAPP is to shut up honest comment and criticism.
Now that Ward has filed in daddy’s court, the SLAPP effect is multiplied, probably without risk of sanctions. What’s the chances of getting sanctioned in a district where your daddy is a judge? I’d like to see the statistics on that.
This is disgusting. It should also be sufficient reason to transfer venue to Calif. or wherever the defendants are.
Here’s the Thing:
AMERICA’S STRONG PATENT SYSTEM (“our System”) has been on Public Trial for years, and to date our System has suffered dramatic and fundamental loses:
(i) Traditional strengths of patents previously issued by the PTO have been eroded.
(ii) Currently, the PTO is rejecting more patent applications than ever in its history.
This much damage has been done. These are FACTS, and they are not in dispute.
——————————————————-
The “JURY POOL” and those SITTING ON THE BENCH IN JUDGMENT of America’s Strong Patent System have been / are comprised of:
(i) We the People; especially We IP People;
(ii) Executive Branch People (e.g., PTO) (and their staffs);
(iii) House and Senate People (and their staffs);
(iv) Judges of the Supreme Court, Federal Circuit and District Courts (and their staffs);
(v) Government wannabe People, those running for office and vying for government positions; and
(vi) News media People, comprised of reporters publishing on the Internet, TV, Newspapers (e.g., the NYT and Washington Post) and books.
——————————————————-
Our System’s jury pool had been tampered with, and those sitting on the Bench have been anonymously influenced by conjured-up pejorative patent troll talk propaganda*. Hill & Knowlton or Burson-Marsteller could not have done a better job at rigging the outcome.
Under The Lobbying Disclosure Act of 1995 ALL American People were/are entitled to know WHO was/is LOBBYING for WHAT.
To suggest otherwise is to ignore our nation’s Lobbying DISCLOSURE Act of 1995 (“LDA”), to wit, this statement is from the United States Senate:
link to senate.gov
“LOBBYING
“Lobbying is the practice of trying to persuade legislators to propose, pass, or defeat legislation or to change existing laws. A lobbyist may work for a group, organization, or industry, and presents information on legislative proposals to support his or her clients’ interests.
THE LOBBYING DISCLOSURE ACT OF 1995 establishes criteria for determining WHEN AN ORGANIZATION OR FIRM SHOULD REGISTER THEIR EMPLOYEES AS LOBBYISTS. Lobbyists register with the Senate Office of Public Records.” (emphasis added) This is a FACT, and it is not in dispute.
In CONCLUSION:
Anyone in Violation of the LDA should be investigated.
Anyone contributing to tampering with the jury pool and anonymously influencing those sitting in judgment should be held accountable to We the American People.
——————————————————-
* CaveMan’s definition of propaganda hits the mark:
“‘Propaganda is a concerted set of messages aimed at influencing the opinions or behavior of large numbers of people. Instead of impartially providing information, propaganda in its most basic sense presents information in order to influence its audience.’”
“‘…propaganda presents facts selectively to encourage a particular synthesis, or gives loaded messages in order to produce an emotional rather than rational response to the information presented. The desired result is a change of the cognitive narrative of the subject in the target audience.’”
Isn’t there a link here, between Patent Reform (apportionment of damages) and the frivolous law suits against the Troll Tracker, namely, the task of disposing of law suits justly? Damages should be proportionate, and those who bring frivolous law suits should suffer some sanction. There should be a mechanism that tries to ensure that 1) precious court resources are used judiciously and 2) the law should minimise in aggregate the harm that people do to each other. Innocent victims of the popular press do suffer huge damages. That’s not fair. Otherwise, I’m with Mooney. I don’t see why the court should award Ward any damages at all. The only individuals interested in the Ward suit are other hard-bitten lawyers, who are quite capable of assessing the TT blog content with the appropriate degree of worldly-wise scepticism.
Mooney you still seem to have some kind of preoccupation with smackdowns and steam rollers. These issues are far from slam dunks. If everything was so self evident, as you would have us all believe it is to you, then why are you even reading this blog, much less posting on it. Why don’t you just take your place at the exalted Throne of all Mankind and for that matter Rule of the Cosmos? Oh wait, because you are just another bag of flesh and bones with a pulse and a few ideas bouncing around in your head, with access to a keyboard and the Internet like the rest of us. Get over yourself.
“If every defendant’s legal counsel gets anonymous web blog and starts making public suggestions and false allegations about the gross misconduct of the opposing party’s councel, then this whole trial thing becomes a mess…”
It’s the end of civilization as we know it!!!!!!!!!!!!! HANG RICK FRENKEL!!!!! SAVE THE RULE OF LAW AS WE KNOW IT!!!!
/ridiculous chicken little freak off
“publicly suggesting that opposing counsel engaged in a conspiracy with a court clerk to alter a court record for opposing counsel’s benefit.”
Oooooh, that’s like the worst thing evah!!! Mommy, mommy, that anonymous blog guy suggested something and I got a tummy ache because of it!!!! Waaaahh!!!!! Waaaah!!!!!!!
Judge, please make me whole again.
/whining SLAPP suit filer off
“That’s not, to paraphrase, “merely noting dates on a filing”. That is publicly suggesting that opposing counsel engaged in a conspiracy with a court clerk to alter a court record for opposing counsel’s benefit.”
Exactly
If every defendant’s legal counsel gets anonymous web blog and starts making public suggestions and false allegations about the gross misconduct of the opposing party’s councel, then this whole trial thing becomes a mess…
Such behaviour must be penalized, maybe by disbarring Frenkel..
But then again, he’s just a little puppet, a scapegoat for Mark Chandler & Co.
The first page of the Electronic Copy from ECF, as originally posted, shows the following header:
Case 5:07-cv-00156-DF-CMC Document 1-1 Filed 10/15/2007 Page 1 of 6
OK, if someone is changing dates on the court’s computer system, the appropriate law enforcement investigators should be figuring out why, and also determining if anyone was provided anything of value to effect such a change. Even if the issue is moot as between the parties in the original filing.
Daylight savings time didn’t end until November 2007, and provides no excuse for a change between 10/15 and 10/16.
On the other hand, if I file a case in Denver at 10:01 PM on Monday night, the patent HAS actually already issued at 12:01 AM on Tuesday in the time zone of the USPTO. Why, as a plaintiff, should I be prejudiced as to forum possibility if I live in Hawaii or Alaska….??? Shouldn’t the LOCAL court ACCEPT my filing as TIMELY, i.e., accept that such a filing IS after ISSUE of the US Patent ?
“I got a couple of anonymous emails this morning, pointing out that the docket in ESN v. Cisco . . . had been altered. One email suggested that 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. I checked, and sure enough, that’s exactly what happened – the docket was altered to reflect an October 16 filing date and the complaint was altered to change the filing date stamp from October 15 to October 16. Only the EDTX Court Clerk could have made such changes. . . . This is yet another example of the abusive nature of litigating patent cases in the Banana Republic of East Texas.”
That’s not, to paraphrase, “merely noting dates on a filing”. That is publicly suggesting that opposing counsel engaged in a conspiracy with a court clerk to alter a court record for opposing counsel’s benefit.
“There is no ethical issue in TT’s post, and there is no defamation. The ethical issue arises in filing complaints for defamation (i.e. SLAPP suits) that are unfounded in fact and law.”
Yup.
But let’s all watch together as facts and history once again steamroll CaveMan and JAOI into whining pancakes, with extreme prejudice.
Dear Cisco IP Director Rick Frenkel, Esq:
To be fair, before responding or not responding, you may want to consider this:
link to lobbyingdisclosure.house.gov
Here’re some excerpts for your convenience:
“SEC. 2. FINDINGS.
The Congress finds that—
…
(3) the effective public disclosure of the identity and extent of the efforts of paid lobbyists to influence Federal officials in the conduct of Government actions will increase public confidence in the integrity of Government.
…
SEC. 3. DEFINITIONS.
…
(8) LOBBYING CONTACT.—
(A) DEFINITION.—The term ‘‘lobbying contact’’ means any oral or written communication (including an electronic communication) to a covered executive branch official or a covered legislative branch official that is made on behalf of a client with regard to—
(i) the formulation, modification, or adoption of Federal legislation (including legislative proposals);
(ii) the formulation, modification, or adoption of a Federal rule, regulation, Executive order, or any other program, policy, or position of the United States Government;
…
(B) EXCEPTIONS.—The term ‘‘lobbying contact’’ does not include a communication that is—
…
(ii) made by a representative of a media organization if the purpose of the communication is gathering and disseminating news and information to the public;
(iii) made in a speech, article, publication or other material that is distributed and made available to the public, or through radio, television, cable television, or other medium of mass communication;”
—————
Please note that Congress Found and articulated with particularity in their Findings that
“the effective public disclosure of the IDENTITY and extent of the efforts of paid lobbyists to influence Federal officials in the conduct of Government actions” (emphasis added)
was an inherent function of their Lobbying Disclosure Act of 1995.
On a personal note, please understand that I take no pleasure whatsoever in being the bearer of ill tidings, to the contrary – my heart goes out to you and your family. When I am troubled, I recall my Confirmation Psalm, Psalm 23, and I remember that tomorrow is another day.
per se verboten.
Guys,
I think “an attorney posting improper statements” anywhere is verboten.
Do you think it fair to say a given posting may be improper in one venue but not another?
I’m not sure this pertains to anything specific at hand.
* * * * *
Dear Cisco IP Director Rick Frenkel, Esq:
If memory serves, before you made Cisco’s (blasphemous) Patent Troll Tracker blog (PTT) essentially defunct, it was available for free to readers who made an email subscription request (in similar manner as other blogs do).
Please confirm the following:
In the past, after receiving such requests, you emailed PTT directly to those readers on a regular basis (I will take your confirmation to confirm only this one sentence and not my characterizations above).
If you do not respond on this thread to my request for confirmation, I will take your lack-of-response for a YES.
* * * * *
Dear Barney Rumble,
I believe you are multiple mistaken or disingenuous or both. That may be understandable if you are actually Rick or are Rick’s friend and or are defending Rick. Of course, it is Just possible that you are Just a regular guy named Barney Rumble.
Rick is in my opinion, for what it may be worth, guilty of more than one tort, and he ought to confess and own up to his and Cisco’s predicament; let’s face it, they (Rick & Cisco) are in, as Everett (George Clooney) said in “O Brother, Where Art Thou?,” “We’re in a tight spot.”
I’d suggest that you click and read (or re-read) the Complaint link on this:
link to patentlyo.com
This is Jaoi(TM) and I approved this message and, God willing, I’ll have more.
Cave Man and Just Another Troll are trying to make mud stick to the wall when it won’t.
If I’m defending a client in a law suit, there is absolutely no ethical prohibition against me publishing on the web, in the New York Times, or on Oprah the fact that the complaint was first marked as filed on one date and then marked as filed on a later, critical date, so long as that allegation is true. And it was true in this case.
There is no ethical issue in TT’s post, and there is no defamation. The ethical issue arises in filing complaints for defamation (i.e. SLAPP suits) that are unfounded in fact and law.
I don’t know Dennis, I think there is a big difference. An anonymous poster and a blog sponsor, like you, who is not actively engaged in any particular case can only be providing commentary.
…or something… What I mean is that why apologize for TT? This blog is different from TT in that the author is not director of IP for a large corporation and, in any case, does not discuss particular cases.
CaveMan – A agree with you that as lawyers (and patent agents) we have a duty, inter alia, to avoid any appearance of impropriety.
However, I don’t think we have a regime that sees a difference between an attorney posting improper statements on his own blog versus an attorney posting improper statements as comments to a blog hosted by another person.
Sorry Lionel,
You rationalization doesn’t mask the reality of the fact that Frenkel’s anonymous shenanigans, which would have been acceptable if he had been a mere poster on a blog such as this one, rose to a whole nutha level (HNL) when he sponsored a blog that denigrated his opponents in litigation. Remember, every lawyer has a duty to avoid an appearance of impropriety. Frenkel has miserably failed at upholding that duty.
I’m not sure why you are apologizing for TT unless you are Dennis.
“If Cisco’s Director’s Troll Tracker Blob was OK while it was anonymous (at least in the view of some following this thread), why did they have to take it down when it was discovered that Cisco was behind it?”
Simple answer – They didn’t. They took it down voluntarily. Why? For any of the reasons cited by gauntlet guy or because of simple negative press that would not be good for business.
Fear of frivolous lawsuits is probably large. Particularly fear of being sued (again) for libel (whether actual libel was committed or not) is probably a large reason behind their decision.
Thank you CaveMan, I needed that. You are too kind.
And I thank others as well for their courtesies and patience. It’s back to decaf for me.
It reminds me of a fable told to me by a renowned inventor, one of my mentors, back in the 70s, about flying off the handle – stop me if you heard it:
A new psychiatrist, Dr. Fried, is assigned to a mental hospital to do periodic examinations of patients to evaluate whether or not they have recovered and are ready for release.
On his first rounds he examines a patient, Mr. Smyth, who has been committed for many years. Mr. Smyth passes with flying colors – Dr. Fried can find no reason Smyth has been institutionalized for so long and he tells Smyth it will take him a week to arrange for his discharge.
As Dr. Fried is walking to the parking lot to leave for the day, he gets hit in the back of his head with a brick. Lying on the ground, barely conscious, Dr. Fried looks up to see Smyth leaning out a window – Mr. Smyth yells, “You won’t forget, will you (;o?).”
* * * * *
Dear gauntlet picker-upper et al.,
Thanks for addressing my questions, and your word of caution.
I think our patent world would be in a better place today if Cisco’s Director’s Blog had been upfront even if 1995’s Lobbying Disclosure Act did not require it to do so. I’d like to think you and others agree about being upfront. Further, I think we are in a better place today now that it is effectively defunct.
I’ll add one further thought as to why Cisco took down its Patent Troll Tracker Blog – having been exposed for what it really is, it makes Cisco look bad.
And, by the way, thanks for the compliment. I am truly flattered.
Go with it JAOI, you’re on a roll my friend. Just watch the gasket pressure. Remember, sometimes saying less is saying more ~ especially in a forum like this where most people are more than capable of picking up what you’re puttin’ down. Plus, you don’t want to come off as being part of the lunatic fringe.
I’m not really picking up the gauntlet again, JAOI.
In response to your questions of 1:06pm, though, I see no suggestion that they HAD to take it down (i.e., involuntarily). If you click on the link to PTT, it says it’s only open to invited readers now.
If patent infringement was a concern, though, taking down the blog would limit any damages he might have to pay if he was found liable because he’s not infringing anymore.
If defamation were a concern, again, taking down the blog might limit damages since the defamatory text is no longer out there.
This is what the chilling effect is about. Now, even though PTT may not actually infringe and may not actually be defamatory, he’s been silenced because he’s justifably afraid of being SLAPPed. Look up the definition of SLAPP; it goes hand-in-hand with chilling effect. There’s something for you to be worried about.
Dear Lionel,
Thanks for your comment. Perhaps you can help me find an answer to this question:
If Cisco’s Director’s Troll Tracker Blob was OK while it was anonymous (at least in the view of some following this thread), why did they have to take it down when it was discovered that Cisco was behind it?
On February 23rd, Cisco’s Director Frenkel said this:
“Why blog anonymously? … I feared that someone would claim to have the patent on blogging, and I might face a retaliatory lawsuit.”
If Cisco Director Frenkel’s statement were truthful, why would there be any need to take down the Blob?
I mean, whatever the consequences of running Cisco’s Blob anonymously may or mayn’t be, the damage had already been done. I don’t see how the cat being out of the bag could have hurt anything further?
So why did Cisco take down the Blob?
JAOI wrote
“Here’s another BIG thing: If you or I worked for a $35,000,000,000 corporate giant pushing a well-known anti-American patent system agenda, and you or I set up a Blob specifically for the purpose of disparaging and defaming a particular class of inventors while lobbying for his or her $35,000,000,000 employer’s patent reform agenda, then yes, of &*%#ing course, we should register under the LDA because to do so anonymously would be unlawful.”
WHY? Are you saying you anyone who works for a coporation is not entitled to free speech? (Which is not to say, that I believe corporations themselves should be able to fully avail themselves of the First Amendment – I personally believe treating corporations as persons entitled to Constitutional rights was a huge mistake of the SC)
You seem hung up on who the speaker is and it should not matter if it was the CEO of Cisco. It was an anonymous blog. Even if Cisco had an official Cisco blog that expressed all the same beliefs as PTT’s, Cisco would not be acting as a lobbyist based upon its blog posts.
Mr. DudeAbides,
What no 50 cent words this time? Do you get paid to advance such drivel? Is your real name Rick? No, but you got his back? Which is it? Come on, you can tell the truth, we all know.
JAOI is a hacker paid by the USPTO dogs to screw up this blog.
He’s doing a great job. Unless you ignore his pre-pubescent, mono-neuronal diatribes it’ll just get worse. He hasn’t said anything worth responding to anyway.
Dear gauntlet picker-upper,
Thanks again for your input. I sensed from the beginning you were patriotic and sincere.
I am quite flattered that you picked my comments to make you “finally want to post comments” on Patently-O. I feel special and I will glow happily all day.
You ask:
“I would ask you again, because I don’t think you’ve ever answered directly, did knowing PTT’s identity change whether or not you agreed with him? If you don’t want to answer, that’s fine too.”
I would happily answer that question if I could, but I cannot as such because I did not read Cisco’s Tricky Rick’s Patent Troll Tracker blob before Dennis outed the scoundrel. I confess, I am loyal to Patently-O – I read no other. However, I read enough comments on Patently-O to figure out that if I had been reading the now defunct PTT blob I would have puked over and over again.
But by asking your question, you reveal to me that we have been talking at cross purposes – you missed my point.
What Cisco and its henchmen led by Tricky Rick did was DESPICABLE and UNLAWFUL in my opinion.
Public Corporations have responsibilities that We the People do not have. Public corporations do not have the same rights as do We the People or private entities. While
CaveMan was blasting James Bessen’s and Michael J. Meurer’s new book “Patent Failure” published by Princeton University Press on another thread
link to patentlyo.com
CaveMan provided a definition of propaganda which I will reprint in a minute.
Being me I must say that, judging from what I browsed on that thread, Messieurs Bessen & Meurer would have done well to read Philosophy Professor Harry G. Frankfurt’s book also published by Princeton University Press titled, “ON BULLSH-T” (which I cited above) before they piled it in their book. Some people who write books want to write inflammatory stuff that sells into the current politically correct atmosphere. Such writers tend to be myopic and wittingly or unwittingly miss the bigger picture. If you read “ON BULLLSH-T” you’ll see what I mean.
link to press.princeton.edu
Be that as it may, I believe what Cisco did was even worst than Anonymous Lobbying –
WHAT CISCO DID WAS PROPAGANDIZED ANONYMOUS LOBBYING PRESENTED UNDER THE GUISE OF A “PUBLIC SERVICE.”
CaveMan’s definition of propaganda makes the point elegantly:
————————-
“‘Propaganda is a concerted set of messages aimed at influencing the opinions or behavior of large numbers of people. Instead of impartially providing information, propaganda in its most basic sense presents information in order to influence its audience.’”
“‘…propaganda presents facts selectively to encourage a particular synthesis, or gives loaded messages in order to produce an emotional rather than rational response to the information presented. The desired result is a change of the cognitive narrative of the subject in the target audience.’”
“Posted by: CaveMan | Mar 12, 2008 at 10:16 PM ”
————————-
To answer your
“Question three: is PTT someone Congress wants to be registered as a lobbyist?”
Absolutely – for all the reasons I’ve presented.
I can also respond to your last question
“… did knowing PTT’s identity change whether or not you agreed with him?”
this way: I don’t cotton to anyone who fans the patent troll inflammatory atmosphere. When I found out truth, the whole truth, I became increasingly livid as the fraud of what Cisco had perpetrated sunk in – I believe
WHAT CISCO DID WAS PROPAGANDIZED ANONYMOUS LOBBYING PRESENTED UNDER THE GUISE OF “PUBLIC SERVICE.”
I must admit, however, that when I first read the LOBBYING DISCLOSURE ACT OF 1995 I did not think I could make the case that PTT should have registered in accordance therewith.
But I put pen to paper nonetheless, and as I picked away at it, it eventually became clear as a bell, that YES,
Congress wants Cisco’s propaganda-spreading PTT Tricky Rick to be registered as a lobbyist.
Don’t get me wrong, Cisco’s Tricky Rick is entitled to say what he wants on Cisco’s PTT blob whether I like it or not, after all this is America, but it is not entitled to anonymously spread propaganda under the guise of a public service – to do that Cisco would have had to comply with the LDA.
Like a good patent claim, Congress drafted the LOBBYING DISCLOSURE ACT OF 1995 broadly enough to cover what it wanted to cover to protect We the People from Propagandized Anonymous Lobbying presented under the guise of a “Public Service.”
The language of the ACT itself puts it this way:
“Section 2 (3) the effective public disclosure of the IDENTITY and extent of the efforts of paid lobbyists to influence Federal officials in the conduct of Government actions will increase public confidence in the integrity of Government.” (emphasis added).
cc: CaveMan
Dear CaveMan,
I hope you approve of my reprinting some of your material.
Thank you for all your posts – you are one of the best commenters on Patently-O.
Dear Lowly,
With all due respect, which part of this, which I posted above, do you feel is misguided:
Here’s another BIG thing: If you or I worked for a $35,000,000,000 corporate giant pushing a well-known anti-American patent system agenda, and you or I set up a Blob specifically for the purpose of disparaging and defaming a particular class of inventors while lobbying for his or her $35,000,000,000 employer’s patent reform agenda, then yes, of &*%#ing course, we should register under the LDA because to do so anonymously would be unlawful.
Here’s yet another thing:
I believe Cisco’s Tricky Rick is entitled to say what he wants on Cisco’s PTT blob whether I like it or not, after all this is America, but it is not entitled to anonymously spread propaganda under the guise of a public service – to do that Cisco would have had to comply with the LDA.
What is misguided about that?
JAOI,
You are so misguided it almost hurts. What you fail to realize is that you, basically, want to end free speech. You misunderstand not only the letter of the law but also the intent of the law. It’s been explained many times to you in this discussion, but you ignore it each time.
Under your formulation of the law, anybody who publicly expresses an opinion is a lobbyist and should have to register, including yourself with your agenda to “reconstitute” the constitution. (which, as far as i can tell, means to get rid of the 1st amendment)
“It’s all crystal clear now:”
Yep, perhaps this gives new meaning to TT’s “live by the sword, die by the sword” reference.
(I had previously thought that being outed, by itself, could not be construed as dying by the sword/anonymity. Fare thee well, Rick. Perhaps you could use a little Bounty(R) of your own to take care of the mess.)
JAOI,
I think both you and I should step back a bit and start from the beginning.
Question one: Would you agree with me that Congress wants the LDA to force some people to register as lobbyists, but not others?
If your answer to question one is yes, then Question two: can you accept that your idea of who should be forced to register as a lobbyist might be different from Congress’ idea of who should be forced to register as a lobbyist?
If your answer to question two is yes, then Question three: is PTT someone Congress wants to be registered as a lobbyist?
This is the path I wanted to lead you down by looking at the definition of “lobbyist” and “lobbying contact.” Never mind the exceptions, which I believe others have pointed to and which would definitely exclude PTT. (I prefer not to rely on exceptions if I don’t have to.)
I don’t think there’s much more to analyze about the LDA. Sure, you can call me a friend, since I’m a patriotic pro-patent American who thinks the little guy gets unfairly picked on in this patent system of ours (except for paying lower fees). Plus, I make my living helping people navigate it.
I think you may have missed the point of chillingeffects.org. Or else I am remembering the wrong website address. My point is that free speech should have, and hopefully does have, wide boundaries and latitude for actions which are disagreeable to us. If you’re not being offended by someone’s speech or actions here in the US, I would submit that the US is not the place that we the people want it to be. Anonymity is a key part of that free speech, precisely because it is intended to prevent the consequences of the speech from coming back on the speaker.
I would ask you again, because I don’t think you’ve ever answered directly, did knowing PTT’s identity change whether or not you agreed with him? If you don’t want to answer, that’s fine too.
And with that, I think I shall retire from the topic. Patently-O is the blog that made me finally want to post comments.
Dear Lionel,
With all due respect, remarkably and ironically, you said:
“(1) You completely ignore the intent of the law and rely upon the letter of the law”
That statement alone bolsters my viewpoint; I had been thinking all along that it is YOU (and my new-found friend, gauntlet picker-upper – may I call you a friend?) who ignore the intent of the law, and it is YOU who rely upon the letter of the law. (That alone makes the area pretty gray, at least for me.)
It is in my opinion absurd to agrue that Cisco’s Director Tricky Rick was not purposely acting as a lobbyer for his employer Cisco. If it looks like a duck, quacks, poops, stinks, waddles and has webbed feet Just like a &*#^ing duck, why would you stand there and pee in my face insisting to me that Cisco’s Patent Director Tricky Rick wasn’t lobbying for his employer? Really, That just don’t make sense. Admit it, we all know the truth, you’ll feel much better.
You then said:
“(2) Your interpretation of the letter is flat-out incorrect. I was trying to avoid being so blunt.”
With all due respect, remarkably and ironically, your first comment was this:
“Rick is not in violation of the LDA for anything he blogged. Period. Any such argument would be thrown out immediately. There is no gray area here.”
Your first comment is even blunter than your second comment! Not to worry, I’m not inclined to easily take offense, and I’m sure your meant none, but please, come on, gimme a even break.
Please, be more open minded while you read my comments, and then follow the dots, e.g, my continuing comment below addressed to “gauntlet picker-upper” directly addresses your this part of your second comment:
“As Raoul pointed out. None of the Troll trackers blogging actions establish him as a lobbying contact.”
* * * * *
Dear gauntlet picker-upper,
Thanks for picking the gauntlet upper yet again.
My point is is, it all depends on what the meaning of what “TO” is, and that is is a lawyer’s argument if I ever saw one (just like Billery’s argument was was when he lied about getting his jollies in the oval orifice).
Please read my response addressed to Raoul at 12:26PM – objectively speaking, your and Raoul’s argument, and Lionel’s as well, is is unavailing, as explained at 12:26 above.
I will also address your (gauntlet picker-upper’s) specific thought about Tricky Rick
“… writing specifically TO the official …”
THE LOBBYING DISCLOSURE ACT OF 1995 specifically says “to”, not “specifically to”:
Please reread the definition of Lobbying Contact; it does not say “specifically TO”; it simply says “to”, to wit:
“(8) LOBBYING CONTACT.—
(A) DEFINITION.—The term ‘‘lobbying contact’’ means any oral or written communication (INCLUDING AN ELECTRONIC COMMUNICATION) TO a covered executive branch official or a covered legislative branch official that is made on behalf of a client with regard to—
(i) the formulation, modification, or adoption of Federal legislation (including legislative proposals);” (emphasis added)
Just like you cannot add words to a patent claim to change its meaning, you cannot add words to an Act to change its meaning.
Lionel, with all due respect, please note that my argument is solidly and soundly based upon THE INTENT OF THE LAW, upon THE LETTER OF THE LAW and upon THE SPIRIT OF THE LAW (does the “intent” and “spirit” go hand-in-hand?)
As I said above, don’cha wanna know WHO IS LOBBYING FOR WHAT to increase public confidence in the integrity of Government? If our government is broken, how else are We the American People gonna have a prayer to fix it?
By enacting THE LOBBYING DISCLOSURE ACT OF 1995, Congress intended for We the People to know WHO IS LOBBYING FOR WHAT. It is not credible to argue otherwise.
Furthermore, you suggest that,
“As for lawyer’s argument, that doesn’t make the argument wrong. It means you have no response to it.”
No, with all due respect, I disagree – that isn’t the intent or meaning of a “lawyer’s argument” (unless you mean the argument is so absurd as to not warrant a reply other than “that’s bullsh-t”).
Your erroneous meaning, for example, is in tension with Judge Bryson’s use of the term “a lawyer’s argument” (as I pointed out earlier) during the oral argument in Gillespie v Dywidag (I hope this info goes directly to the audio link – if not, it is easy to find):
12/6/2006 2006-1382 Gillespie v Dywidag Systems 2006-1382.mp3
You may disagree with me and His Honor Federal Circuit Judge Bryson but you would be incorrect; His Honor used the term “lawyer’s argument” pejoratively (but did not want to be disrespectful or too blunt to an Officer of the Court in open Court) –
His Honor used the term to mean an unavailing bull sh-t argument (let’s call a spade a spade) (before attacking me for another, separate reason, please see:
link to phrases.org.uk )
(Some of the commenters here (I won’t name names but you know who you are) might benefit by reading an under $10 small book on a big subject titled: “ON BULLSH-T” by Harry G. Frankfurt, Professor of Philosophy Emeritus at Princeton University.)
link to press.princeton.edu
Here’s another BIG thing: If you or I worked for a $35,000,000,000 corporate giant pushing a well-known anti-American patent system agenda, and you or I set up a Blob specifically for the purpose of disparaging and defaming a particular class of inventors while lobbying for his or her $35,000,000,000 employer’s patent reform agenda, then yes, of &*%#ing course, we should register under the LDA because to do so anonymously would be unlawful.
Ironically, the website you directed me to http://www.chillingeffects.org tends to (a) refute your suggestion in this regard and (b) support my opinion in spades (please see above); for example, the website you yourself directed me talks about PEOPLE WITH WEBSITES!, your link says this on the first page (verbatim but with emphasis):
“… offers background material and explanations of the law FOR PEOPLE WHOSE WEBSITES deal with topics such as Fan Fiction, Copyright, Domain Names and Trademarks, Anonymous Speech, and Defamation.”
I for one do not have a website. However, I am most thankful Professor Crouch does, and that he allows me to air my passionate patriotic and pro-patent comments in my effort to
RECONSTITUTE THE CONSTITUTION OF THE UNITED STATES OF AMERICA.
For this I should register in accordance with the LOBBYING DISCLOSURE ACT OF 1995?? Maybe so, maybe so. As everyone knows, I am trying passionately to protect my patented and patent pending inventions, and I would like to see the status quo maintained. It doesn’t seem American to take the wind out of my patent sails after the fact – that is not justice. Do I make sense? (That is a rhetorical question – of course I do, and you my friend know I make sense.)
Am I getting through to anybody?, anybody?, Bueller?
This is Jaoi(TM) and I approved this message and, God willing, I have more.
Totally awesome.
A frivolous suit, but awesome nonetheless.
You have got to love the way the U.S. court system can be used to attack your enemies.
Elfin Magic, I don’t think Google is feeling very chilled right now. They probably put a junior paralegal on this case, and even this person barely gives it a thought.
It’s all crystal clear now:
Rick makes false and defamatory statements in his anonymous blog about plaintiff’s attorneys.
Attorneys get pissed off and file a lawsuit against John Doe and Google in order to subpoena somebody at Google to reveal blogger’s registration info.
Subpoena was granted by the judge
Next thing Rick gets an email from one of those guys asking him to publicly unmask himself before judge takes care of it…
Next thing Rick and Cisco get sued
The bounty was never paid
Nobody has mentioned that two additional parties are named as Defendants on one of the suits: Google and “John Doe”. Google, of course, owns Blogger.com — host of the TT site. Without seeing the original complaint (filed in Nov. 2007), it’s tough to know why, but I suspect that it was to force Google to reveal “John Doe’s” identity. But if it somehow implicated Google as responsibile with respect to the speech itself, it would be a true attack on the forum. Talk about chilling…
Imagine if you mixed the color of the sky on planet #6K with that of Planet Ornery – probably some amazing mystic hue to which the normal human eye is insensitive, and probably for very good reason
> takes JAOI by the hand…
Jaoi (sounds ~like Joey?) – no-none here, and no sane person anywhere who understood anything about the concepts of invention and patents and patent trolling, would ever, ever accuse an honest-to-goodness independent inventor of being a patent troll. There are, of course, other kinds of troll.
With the indulgence of the commuunity, I will hereby declare and claim copyright in a dramatic scenario comprising:
a weblog
a preponderance of honest-to-goodness professional folk seeking comfort/companionship/help/validation therein
a plurality of potentially/borderline obsessive/psychotic participants thereamong
a spiral into madness and violence
Who’s(/re)re the perp(s)?
So many obvious candidates – but what about mild mannered DC himveryself?!?
– coming soon to pollute your mind via every available medium
!!
Mr Scorcese!.. a moment please. Mr. Lynch! Gus! Messrs Coen!!
Anybody…
OK, guess I’ll just have to do it myself.
“Niggardly” may have been MM’s finest moment, but that was a whole different thread, with swastikas and everything.
}note to self: get a grip
anon :: loser to whom? david needs goliath … or he does not become king … the relevance of TT can be measured by the reasons they shut it down (the fuiture value? if the patent reform act does not go through because this makes the senate feel uneasy … what is the worth then?) … but now that the coalition has decided it will not compromise on damages calculations; and the 15 minutes of fame is turning into consequences for TT and cisco (presumably without any detailed statement that has come to light); TT’s accounting credentials have been undermined (what is the cost of the shindig on the enterprise value of cisco? goodwill? political capital spent? how about the lawyers famous for taking on the TT?) …
i dont see the hair on this deal coming off to quick given the number of people who are connecting dots …
the relevance of the TT Blog has now moved on … money you want those carnie tix? the site is inaccessible without subscription – easy to prove the blog had 15K of value to niro (he presumably paid it) to out the TT? the cost to others? as yet to be determined …
This one is spreading fast: From the IPO Daily news:
IP SUITS — Compiled from newswire reports and other sources:
Two lawyers practicing in the Eastern District of Texas, Johnny Ward, Jr. and Eric Albritton, have filed a defamation suit against Cisco Systems, Inc. and Rick Frenkel, an employee of Cisco. Until recently, Frenkel operated an anonymous web site known as Patent Troll Tracker. (Dennis Crouch, Patently-O web site.)
Some of the cases in this area have the Plaintiff (1) suing “Doe” defendant in an effort to compel the internet blog site to reveal the name of the poster and (2) suing the internet blog site itself. The Doe defendant (or Does 1-100 defendant) route seems like a pain in the behind ’cause the pre-name disclosure litigation gets bogged down in whether a particular communication is actionable as defamation and, once that is resolved, it still is a far ways away from actually finding out the name of the person behind the “Doe”. And if the name finally is determined, that defendant now has a road map to the Plaintiff’s defamation case even before being brought into the lawsuit. The lawsuits against the internet blog site itself don’t seem to work ’cause the Communications Decency Act of 1996 offers Web hosters some protection.
It appears they sued Richard Frenkel, not Rick Frenkel. The two cases were filed February 27, 2008 (case number 2007-2502-A) and March 3, 2008 (case number 2008-481-CCL2). The February 27, 2008 case was filed in the 188th District Court, Gregg County, Texas and the March 3, 2008 case was filed in the County Court at Law #2, Gregg County, Texas.
The dockets for these two courts can be found at
link to co.gregg.tx.us
It is interesting that two lawsuits were files in separate courts.
Out of curiosity, is there a jurisdictional issue is this case? Does the Banana Republic of the Eastern District of Texas have jurisdiction over a California resident for blogging? I noticed the complaint cited a Texas code mandating venue but that doesn’t address the jurisdictional issue. Alternaticely, would TT’s role as IP counsel in that previous case meet the “minimum contacts” requirement?
“Although I have not always agreed with Frenkel’s opinions, he has been a great addition to the public debate over patents and patent reforms.”
Frenkel would have to be completely out of his mind to start up the blog on a public basis again. One voice in an important debate has been silenced.
Looking at the complaints filed by Ward and Albritton, I note that they have alleged actual damage. Discovery and cross-examination on that should be fun.
JAOI,
I realize I screwed up the acronym in my last few posts. My bad.
To All,
If he did actually accuse the law firm of having their papers redated by the Texas Court and they did not, couldn’t that be libel if it is not in fact true? Granted, it may be debateable whether it was a reckless disregard for the truth and their damages are nonexistent, but TT may have committed libel in that instance.
JAIO,
(1) You completely ignore the intent of the law and rely upon the letter of the law
(2) Your interpretation of the letter is flat-out incorrect. I was trying to avoid being so blunt.
As Raoul pointed out. None of the Troll trackers blogging actions establish him as a lobbying contact.
In court, “I would simply say, the plaintiff has not established his case your honor” and move for dismissal of that count (or whatever you all the separate charges in a trial) and as a good defense attorney I would not bother making any positive argument unless I had too.
Hey, Why doesn’t Blogmaster delete Troll Tracker’s defamatory post the way he deletes my ocasional offensive post? I am being chilled
Obviously this is having the desired chilling effect. Someone should mention that this suit is a dead loser and, therefore, borders on the frivolous. Two lawyers filing complaints in federal court are limited public figures, and Troll Tracker made reasonable inferences about a serious matter of public concern (i.e. possible alteration of judicial records). There is no plausible case of actual malice as required under NY Times v. Sullivan.
Now the thing to do is to remove to federal court on the basis of diversity, and the disqualify all the judges there based on the fact that the subject-matter of the case is an insult to each and every one of them, so obviously it would be inappropriate for them to sit on a case of whether E.D. Tex. is a “Banana Republic.”
Dear Lionel Hutz,
With all due respect, unless you point out some rational, how am I to respond?
I believe Congress intended the LDA of 1995 to afford We the American People public disclosure of who is lobbying for what. That’s a good thing; why do you suggest cutting it short of its intended purpose?
* * * * *
Dear gauntlet picker-upper,
Thanks again for your input. Yes, I agree – you raise some legitimate concerns.
However, my “boss” (my wife) insisted I turn my attention to another matter for the moment, but I will respond eventually. (Our son is home from college for the week.)
“If anything tends to “expose [Ward]to public hatred, contempt or ridicule” it’s being the named plaintiff on this SLAPP suit.”
Yup. It takes a certain kind of, um, personality not to recognize such basic facts.
Like everyone else on earth, I barely noticed and immediately forgot the initial incident. But, hey, let’s talk about these doofusses some more, by all means.
Working requirements in other countries lead to licences of right if the invention is not worked, NOT loss of the patent. I am all for licences of right, but suggesting invalidation instead of that is frankly outrageous, and displays a transparent pro-large corporation agenda.
I am a patent agent, not a small inventor, but I have done work for many of the former, and I feel the system is stacked against them enough without such a flagrant attempt to gut their rights.
JAIO,
Rick is not in violation of the LDA for anything he blogged. Period. Any such argument would be thrown out immediately. There is no gray area here.
JAOI,
“If Cisco’s Tricky Rick wrote a lobbying letter or sent a lobbying email TO a covered government official, he still couldn’t control whether or not that official would read the lobbying letter or open the lobbying email. So, materially speaking, what’s the diff?”
The material difference is that if PTT writes a letter TO the covered official, he is writing specifically TO the official. When the official reads a letter written to nobody in particular that expresses an opinion, he is not writing specifically to the official. It’s like collateral damage; I mean to hit a particular building, not the ones next to it.
“After checking with Cisco’s counsel, Tricky Rick should have registered to be compliant with THE LOBBYING DISCLOSURE ACT OF 1995.”
As I’m sure you realize, this action does not keep PTT from falling outside of the LDA. Perhaps you and I should register as well, just to be safe? After all, we may be trying to influence a covered official to bring federal criminal charges against PTT for not registering as required by the LDA. You never know who’s reading this blog.
As for lawyer’s argument, that doesn’t make the argument wrong. It means you have no response to it.
I agree that the spirit of the law and the letter of the law are two different things, as you seem to as well. In the realm of the First Amendment, the letter of the law matters because we the people don’t want chilling effects where people are afraid to speak because they don’t know if what they say will cause them to get sued. Take a look at http://www.chillingeffects.org .
Dear Raoul,
Please read the whole LOBBYING DISCLOSURE ACT OF 1995.
By taking a part of the Act out of context, you skew its interpretation.
In context, Congress passed an Act that mandates We the American People are entitled to Public Disclosure of WHO is Lobbying for what.
In context, the Act first articulates and then presupposes Public Disclosure of the WHO, i.e., PUBLIC DISCLOSURE OF THE IDENTITY. Here is what the Act says (verbatim but with emphasis):
“… the effective PUBLIC DISCLOSURE OF THE IDENTITY and extent of the efforts of paid lobbyists to influence Federal officials in the conduct of Government actions will increase public confidence in the integrity of Government.
…
made in a speech, article, publication or other material that is distributed and made available to the public, or through radio, television, cable television, or other medium of mass communication;”
By lobbying anonymously, Cisco violated that Act in a rather contemptible in-your-face way.
With all due respect, your “lawyer’s argument” begs the question.
Thank you Rauol for allowing me another opportunity to voice my opinions. The more views I see the more able I will be to help our nation
RECONSTITUTE THE CONSTITUTION OF THE UNITED STATES OF AMERICA.
Have you seen link to youtube.com
Please wish me luck & success on my Quixotic journey.
Robert :: “Also, I’m just throwing out the idea of the working requirement as a seed to spur further discussion. I do see it as a good way of distinguishing small biotech inventors from small EE inventors. Biotech inventors typically seek to start companies and commercialize the technology, while small EE inventors prefer to sell their inventions to trolls who will line the pockets of patent plaintiffs’ lawyers.” and KSR was about pedals …
drug companies have a ready market with little to no price competition … and certain guarantees that the us govt will not purchase cheaper manufactures from other countries, even as they are the biggest “client” … with price competition from, say, canada would your theory still hold true? or, could it be that the fda is a gateway to commercialization and big pharma has the muscle to get the approvals (they still fight tooth-and-nail against generics — lining the defendants bar quite nicely) … but without real price competition or even network effects … how can you generalize about a specific inventors intentions or even their passion?
however, what is a “small ee inventor”? there have been several threads about gilbert hyatt — does he qualify? what about steve pearlman? (webtv, quicktime – at apple) have you ever been to an “ee”-type industry standards meeting? have you counted the number of small inventors?
but the leap between the two businesses should have nothing to do with the preferred exit by either “type” of inventor … least of all driven without regards to a tangible return … big pharma is in favor of patents and is able to collect perhaps better rent under their existing model (that may not hold true as you can see in foreign countries that reject patent protection for certain drugs — see thai govt response recently to drug patents) …
ee-types have a very competitive market for which the exits are not as clear … and monopsonist purchasers versus a troll? a negotiation in the ee-type world is not too often unlike the following “hi, we’re interested in your house” “well, i dont want to sell at that price” “okay, well we just burned your car so are you willing to sell now?”
would it not also be the case that ee-type inventions (presumably the ones that go to trolls – but that is hardly clear – the market in IT is so large why wouldn’t there be more legal activity?) get better returns than from a vulture capitalist or a private– pay me 20% no matter what –equity firm … what companies in the ee-type world are engaged in active m&a? what are their stances vis-a-vis patent reform? what about biotech? overly simplified and for example only :: vioxx is expensive aspirin — how do we price it? what “incremental value” is measured versus the demands of the ee-type patent reform proponents?
the patent system should be industry-neutral … if ksr can apply to any invention in determining obviousness … ee-types and biotech-types can hardly be hived into pro-troll or anti-troll camps …
Dear iwasthere,
It’s as if you are reading my tea leaves in some regard.
Thank you, you too have made my day++.
You too (i.e., you & Phil) are brilliant. It is a shame not everyone sees the bigger picture, and the extreme value a strong patent system affords We the American People.
Just to add to the silly LDA argument because I have some spare time. The act specifically states that:
(B) Exceptions
The term “lobbying contact” does not include a communication that is—
…
(iii) made in a speech, article, publication or other material that is distributed and made available to the public, or through radio, television, cable television, or other medium of mass communication;
I’m fairly certain a blog would fall under this. Also ths shows that the intent of the act was mainly disclosure of personal contacts.
Good for Ward. The patent troll term itself – as now used – is a defamatory term designed to incite bias and prejudice legal proceedings. As the invective in the pleadings of the serial infringers heats up, the people involved are forgetting that creating or repeating the invective outside a pleading (immunity) could subject them to defamation suits – i think the term of art is drinking your own bath water. All this IMO is double bad in that TT was employing subterfuge – feigning disinterest in the outcome of the case – and yet as we now know hoping to advance an agenda (venue selection in patent reform perhaps?)
As to some of the other comments – American law, with of course some huge black eyes of the past – at its best – seeks to afford all citizens equal protection under the law – it’s not just an amendment but a philosophy and practically hardcoded in our societal DNA . I respect that fact that the globalization (AKA Chinese military-industrial agenda) are acting in there own economic self interest to demolish IP rights in the US. They need to respect the fact, that people are going to call out not just the extremely damaging effects of their agenda to the US but also their tactics to influence public and unfortunately some judicial opinions as well.
Dear gauntlet picker-upper,
Please allow me to add this:
In regard to controlling what others may or mayn’t read, in Cisco’s Tricky Rick’s case, he specifically said that:
“I have received 30,000 visits … My readers include those from the Senate and House of Representatives, the Patent and Trademark Office”
Thus, it would seem an otherwise conceivable “he-had-no-control” argument is of no present moment.
Also, you ask:
“What actions can he affirmatively take to prevent himself from falling under the LDA, besides not posting at all?”
After checking with Cisco’s counsel, Tricky Rick should have registered to be compliant with THE LOBBYING DISCLOSURE ACT OF 1995. The essence of that Act is THAT the WHAT without the WHO is not in compliance.
In sum, Congress passed an Act that mandates We the American People are entitled to PUBLIC DISCLOSURE OF WHO IS LOBBYING FOR WHAT. Cisco violated that Act in a rather contemptible in-your-face way, and I’m “Mad As … [HECK] and I’m Not Going TO Take It Anymore.”
Dear gauntlet picker-upper,
Thanks for picking the gauntlet upper again.
Re: “I think that your reasoning is flawed in at least one respect.”
Your argument is again sound in one respect, however, with all due respect, another, less flawed interpretation is even more sound and persuasive.
A lot depends on what the meaning of “to” is is in THE LOBBYING DISCLOSURE ACT OF 1995:
“(8) LOBBYING CONTACT.—
(A) DEFINITION.—The term ‘‘lobbying contact’’ means any oral or written communication (including an electronic communication) TO a covered executive branch official or a covered legislative branch official that is made on behalf of a client with regard to— (emphasis added)
(i) the formulation, modification, or adoption of Federal legislation (including legislative proposals);”
You say: “That’s not fair, to say that PTT falls under the LDA if he can’t control the other person’s actions”
If Cisco’s Tricky Rick wrote a lobbying letter or sent a lobbying email TO a covered government official, he still couldn’t control whether or not that official would read the lobbying letter or open the lobbying email. So, materially speaking, what’s the diff?
With all due respect, your other arguments beg the question and begin to sound like “lawyer’s arguments” (a pejorative used be Judge Bryson during the oral argument in Gillespie v Dywidag).
For example, journalists don’t set up Blobs for the purpose of disparaging and defaming a particular class of inventors while lobbying for their employer’s patent reform agenda.
Anon,
What you’ve described does not appear to occur within the chem/bio fields where I practice. If a small entity develops a new drug delivery method, Big Pharma companies usually fall over themselves to strike a deal with the small inventor. Competition among the drug companies drives the process, not the threat of litigation.
Besides, if a so-called inventor’s contribution is so marginal that it garners the interest of only 1-2 potential licensees, then I dare say that he/she has probably not come up with something that’s worthy of statutory protection.
Also, I’m just throwing out the idea of the working requirement as a seed to spur further discussion. I do see it as a good way of distinguishing small biotech inventors from small EE inventors. Biotech inventors typically seek to start companies and commercialize the technology, while small EE inventors prefer to sell their inventions to trolls who will line the pockets of patent plaintiffs’ lawyers.
Further, the comparisons to common law real property interests are inapposite. Under the common law, ideas receive no protection! The Patent Act is nothing more than a limited, narrow statutory estoppel scheme that carves out an exception to the common law’s default rule of no protection. Therefore, trolls might more aptly be compared to squatters than to fee simple owners.
I don’t know that hiring Ward, Jr. would keep you out of Ward’s courtroom. Perhaps the Canon of Avoiding the Appearance of Impropriety would help, but I don’t know that there’s another bar that would keep the two Wards apart.
“Does Ward Jr. practice before Ward Sr.? Conflict?”
He practices in the same district, but not before his father. I’ve seen him before Judge Folsom, in Texarkana. If you want to be in the ED Texas, but don’t want Judge Ward, then hire Ward Jr.
LOL – Howrey wont represent trolls! I guess trolls cant afford their fees and I kinda doubt they take cases on contingency.
Dear Phil (if I may be so familiar),
So elegantly and compellingly put. Dr. Phil himself counld’t have said it any better. Thank you, you’ve made my day++.
Besides being an uncivilized basis of debate, derogatory references to “patent trolls” are a one-sided attempt by users of technology to avoid paying fair and equitable economic rent.
No-one would suggest the owner of an apartment building be forced to stop charging rent because she does not live there, but holds the building for investment. Yet in economically identical situations those like this fellow from Cisco, and many others with similar axes to grind avoid meeting issues by labeling technology investors with a disparaging epithet.
Although the context is of course different, the procedure is as intellectually dishonest as when some people with unpopular ideas were called “communist” decades ago, so those with opposite views could avoid debate on any merits.
I think disparagements like “troll” should be banned from this forum. If there are economic or legal matters that arise from entities investing in patents, let us debate them on the merits like ladies and gentlemen.
Thank you.
Does Ward Jr. practice before Ward Sr.? Conflict?
JAOI,
I think that your reasoning is flawed in at least one respect. I agree, PTT may know that covered officials are reading his blog. But, you’re assuming he made them read the blog, versus their voluntarily reading it. Under your reasoning, he became a lobbyist because a covered official read the blog. In other words, he falls under the LDA because of someone else’s actions, not his own. That’s not fair, to say that PTT falls under the LDA if he can’t control the other person’s actions to ensure he doesn’t fall under the LDA. If you say, “he didn’t have to write what he wrote,” well, now you’re taking away his right to free speech and his freedom to publish. That is known as a chilling effect, and I don’t think you want to go there.
Think to before PTT makes his blogpost. What actions can he affirmatively take to prevent himself from falling under the LDA, besides not posting at all? Let me know what actions you think of and we can go on from there if you like. Something that might be related would be caselaw on personal jurisdiction based on the Internet. The same actions taken to limit personal jurisdiction might help with analogous actions for PTT to take to not fall under the LDA. The only thing that comes to the top of my mind is a disclaimer that says, “this website is intended only for residents of Missouri” is a good argument for personal jurisdiction only in Missouri. A disclaimer that says, “this blog is not intended for covered officials to read” might help, but it doesn’t prevent such officials from reading, which act would presumably be the trigger that makes him fall under the LDA, and then we’re back to the problem described above.
As to the 20% test, I think it means that Congress only wants the LDA to apply to certain people. For example, Congress does not want it to apply to ordinary people like you and me who might call their representative’s office multiple times a year expressing their views on abortion, taxes, patent reform, crime bills, etc. I don’t think you or I want it to apply to those kinds of conversation either. I think under the LDA those telephone calls would be considered lobbying contacts (not sure; are you your own client when representing yourself?). Congress may not want it to apply to groups who spend time on only one issue, e.g. the AIPLA writing a position paper on patent reform, but only once and the position paper gets sent to all 535 Congressional members.
As to your distinction between PTT and a journalist, I submit that your distinction is based on whether or not you agree with the agenda/purpose. That would be a content-based distinction, which I admit is different from identity, but does not go to the heart of deciding who should be registered as a lobbyist and who shouldn’t. For example, again, certain newspapers / magazines are regarded as being conservative or liberal. Does this mean all of their writers / editors should be forced to register as a lobbyist? If you review First Amendment law, you’ll see that content-based restrictions on speech are very disfavored.
Dear BadMoonRisin’,
I hope I haven’t disappointed you with my views above. BTW, FYI, by most all definitions of “troll” I’ve read, I am not a troll. If that fact disappoints anyone, they can take a flying kite.
From my vantage point, far, far more self-employed inventors have been screwed by OBB compared to those few who have abused our strong American patent system. The patent reform that has been proposed is like using a nuke to kill a mosquito.
This comment responds to “gauntlet picker-upper’s” comment on this thread:
link to patentlyo.com
Posting here seems more appropriate and I wouldn’t want to disappoint BadMoonRisin’ (by the way, how did you know about my toes?).
———————————
Dear gauntlet picker-upper,
Thanks for picking the gauntlet upper.
Your arguments are sound.
With all due respect however, logically, here’s the thing:
Essential to THE LOBBYING DISCLOSURE ACT OF 1995 is THAT
the WHAT without the WHO is not in compliance. I am not saying you are wrong, but, I see another sound interpretation of the Act:
link to lobbyingdisclosure.house.gov
Is it not reasonable to argue that the WHAT without the WHO is unlawful? –
THE LOBBYING DISCLOSURE ACT OF 1995 is crystal clear about its purpose, i.e., in simple terms, the Act mandates PUBLIC DISCLOSURE OF WHO IS LOBBYING FOR WHAT.
The language of the ACT itself puts it this way:
“Section 2 (3) the effective public disclosure of the IDENTITY and extent of the efforts of paid lobbyists to influence Federal officials in the conduct of Government actions will increase public confidence in the integrity of Government.” (emphasis added).
When Cisco’s Director Tricky Rick publicly admitted on Cisco’s Troll Tracker Blob that:
“I have received 30,000 visits … My readers include those from the Senate and House of Representatives, the Patent and Trademark Office”
Tricky Rick KNEW that Cisco’s
“electronic communication” was getting TO “a covered executive branch official or a covered legislative branch official … on behalf of … [Cisco] with regard to the formulation, modification, or adoption of Federal legislation (including legislative proposals)”
THE LOBBYING DISCLOSURE ACT OF 1995 specifically says this about that:
“(8) LOBBYING CONTACT.—
(A) DEFINITION.—The term ‘‘lobbying contact’’ means any oral or written communication (including an electronic communication) to a covered executive branch official or a covered legislative branch official that is made on behalf of a client with regard to—
(i) the formulation, modification, or adoption of Federal legislation (including legislative proposals);”
* * * * *
Next, regarding the definition you discuss in “(10) LOBBYIST.—” that seems to quite clearly say, if you don’t lobby more than 20% of your time, you are not a ‘‘lobbyist,’’ and therefore (the implication is), you don’t need to comply with the THE LOBBYING DISCLOSURE ACT OF 1995.
I’m at a loss – I don’t know how to figure this. Assuming this “lobbyist” definition in the Act is controlling and not in tension with another part(s) of the Act (there may in fact be such conflicts), Cisco, or anybody else for that matter, could do all the anonymous lobbying it wants to do if it uses only part-time lobbyists. On the face of it, this Act would therefore have built in means to skirt the Act and thereby subvert its crystal clear purpose, PUBLIC DISCLOSURE OF WHO IS LOBBYING FOR WHAT.
“That don’t make no sense,” as Pete (John Turturro) might say, or, “That would be dumber than a bag of hammers” as Everett (George Clooney) might say in “O Brother, Where Art Thou?,” a very funny movie with enchanting music and fascinating dialogue, and with a tagline, “They have a plan, but not a clue.”
In the occasional business patent licensing contract I have entered, I recall seeing something to this effect – if parts of this Agreement don’t hold water the rest still stands. Could this be what is in part meant by the Spirit of the Law? I mean, don’cha wanna know WHO IS LOBBYING FOR WHAT to increase public confidence in the integrity of Government? If our government is broken, how else are We the American People gonna have a prayer to fix it?
More importantly, who’s to say that Cisco Director Tricky Rick’s other IP duties at Cisco don’t directly and or indirectly relate to his anonymous lobbying for Cisco’s patent reform agenda?— Cisco got their patents now Cisco wants to close the patent barn door behind them, leaving many of us self-employed inventors in a lurch. “’Tain’t fair,” I say, “’tain’t fair.”
* * * * *
Next, again with all due respect, you asked about a distinction between Cisco’s Tricky Rick and a journalist:
“Unless you have found a distinction between PTT and other writers that is not based on the fact that PTT hid his identity?”
What do you think of this distinction?: An honest-to-God Journalist doesn’t go around lobbying for a particular corporate agenda while steadily disparaging and defaming a particular class of inventors on a Blob set up for that corporate lobbying purpose. If s/he did do that, shouldn’t s/he register (and thus reveal his or her identity) in accordance with THE LOBBYING DISCLOSURE ACT OF 1995?
To a demonstrable extent, our three branches of government have been hijacked by Organized Big Business, OBB – lobbying is a favorite and effective tool to accomplish such hijacking. Our government dances too much to the tune of OBB. In accordance with the United States Constitution, our three branches of government are meant to serve We the American People. The problem, as I see it, is that OBB has lobbied our government away from the Constitution – we are to a large extent off our Constitutional Standard.
The preamble of the Declaration of Independence says:
“Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.”
Fortunately, We the American People do not need new government – all we really need is to go back on the Constitutional Standard. I could be wrong now, but I don’t think so.
* * * * *
And lastly, I want to say Thank You Mr/s. “GAUNTLET PICKER-UPPER” for your astute analysis with which I respectfully disagree. The more views I see the more armed I will be to pursue for me and We the People of the United States a more perfect Union, the reestablishment of Justice and the promotion of the general Welfare, and to secure the Blessings of Liberty to ourselves and our Posterity, and, mostly, to
RECONSTITUTE THE CONSTITUTION OF THE UNITED STATES OF AMERICA.
I wonder which way Attorney General Michael B. Mukasey will lean? Anybody? Anybody? Bueller?
Please watch link to youtube.com
and wish me luck & success on my Quixotic journey.
PS:
As memory serves, O’Henry’s legendary Cisco Kid was a good guy & wore a big white hat, Just like the Lone Ranger. Tricky Rick, in my humble opinion, is a Dirty Rick (rhymes with Dirty Dick), and this Dirty Rick sold out We the American People and our strong patent system for Cisco’s shameful agenda, “greed-at-all-cost.” It makes me, a Red, White & Blue American through & through, who remembers Pledging my Allegiance to America every day in school, wanna’ puke.
More PS:
My personal advice to Tricky Rick – Find lawyer, discuss Sarbanes-Oxley Act of 2002, goto DA ASAP and cut a deal. Do it anonymously (you have experience at that) – do not tell anybody, do not risk Cisco finding out prematurely. Mortgage your house if you have to but get the best attorney extant for your dilemma.
This is Jaoi(TM) and I (holding my breath on bended knees with head raised, hands folded) approved this message; heck, I wrote this message, and, God willing, I will write more.