Albritton v. Cisco Systems, Inc. [1]

Richard Frenkel authors the Patent Troll Tracker [2] blog, where he comments on lawsuits that in his view abuse the patent system. Eric M. Albritton, a patent lawyer practicing in Texas, sued Frenkel and his employer, Cisco Systems, for defamation. Albritton alleges that Frenkel's post of October 18, 2007 [3] falsely implied that Albritton and a colleague, John Ward, Jr., had conspired with a federal court official to illegally alter court documents.

Frenkel's October 18, 2007 post [3] focused on ESN, LLC v. Cisco Systems [4], a patent lawsuit brought in the United States District Court of the Eastern District of Texas. He implied that ESN, LLC ("ESN") was a patent troll and claimed that when ESN filed its patent infringement suit against Cisco on October 15, 2007, the patent in question had not yet been issued. If this was the case, the post [3] contended, ESN would have no standing to sue because it had not been injured at the time of the filing. Frenkel identified Eric Albritton and T. John Ward as ESN's local counsel responsible for filing the suit and allegedly altering documents to change the date of filing.

Frenkel operated Patent Troll Tracker anonymously up to the time of this blog post [3], but he subsequently "outed" himself after Ward sought to take discovery regarding his identity from Google. Albritton filed his original complaint in Texas state court against Frenkel and Cisco. Cisco then removed the action to the United States District Court for the Eastern District of Texas. Albritton later amended his complaint to name two additional defendants, Mallun Yen and John Noh, both of whom are employees of Cisco. Both Yen and Noh have moved to dismiss the complaint against them for lack of personal jurisdiction.

Ward filed a nearly identical action against Frenkel and Cisco in Texas state court. He later dismissed this action and later refiled his complaint [5] in federal court in Arkansas. By refiling in federal court in Arkansas, Ward may have intended to pre-empt Cisco from removing his case to the District Court for the Eastern District of Texas, as it had done with Albritton's case. See our database entry, Ward v. Cisco Systems, Inc. [6], for details.

Update:

11/26/2008 - Defendants filed a motion for summary judgment [7] in federal court.

12/24/2008 - Defendants filed reply [8] in response to motion for summary judgment.

1/6/2009 - Plaintiff filed sur-reply [9] to Defendants' reply.

2/27/09 - Court granted [10] in part the defendants' motion for summary judgment and the plaintiff's cross-motion for summary judgment.   

6/5/09 - Court denies [11] plaintiff's motion to reconsider [12] the granting [13] of defendants' motion in limine [14]. Court also denies defendants' motion to reconsider [15] the denial [16] of the defendants' motion to compel [17] production of documents.

9/22/09 - The case settled [18] after 4 days of trial.