Patent Troll Tracker & Cisco’s New Blog Policy

WorldisflatMost major companies are still trying to get their heads wrapped around the flat world concepts that Thomas Friedman presented in his 2005 bestseller. The reputational power of the internet is now driving many corporate balance sheets.  The business issue: ensuring that the reputation is going right way.  Certainly, this management may be a bit like herding cats: In less than five minutes, anyone with an internet connection and skills with a mouse can become an anonymous online publisher to the world without spending a dime.  The impact of cheap worldwide distribution is multiplied by a seeming societal shift away from a desire for privacy, away from strong employee loyalty, and away from a respect for intellectual property in favor of free speech and free software.

Cisco Systems found itself in the midst of a potential reputation firestorm when the popular anonymous blogger known as the Patent Troll Tracker (PTT) revealed himself as a Cisco IP Director Rick Frenkel.  The PTT blog focused on patent enforcement companies — so called patent trolls — that have sued major technology companies such as Cisco, Microsoft, Sprint, and others.  Frenkel and Cisco have been accused of defaming two Texas plaintiffs attorneys and have also been accused of a stealth anti-patent lobbying campaign. (Cisco is a major part of the “Coalition for Patent Fairness” — an organization lobbying for weaker patent rights).

One way that Cisco can emerge as a publicity winner is to promote and encourage employee publication and free speech.  Cisco appears to be taking this road. I discussed the Frenkel case with a Cisco spokesperson today who indicated that Cisco is defending against the lawsuit; that Cisco is “committed to supporting [its] employees and their right to online expression”; and that Frenkel will certainly be allowed to continue blogging while a Cisco employee.

The internet’s ease of anonymity is in tension with the prevailing blog notion of transparency.  The problem with anonymous corporate blogs is the potential for customer backlash when they discover the true content provider.  The other major problem with anonymous publication is the tendency of anonymous authors to become reckless authors. (See, e.g., anonymous Patently-O comments). Cisco’s new employee publishing policy takes these issues into consideration. The policy: No anonymous blogging or comments on issues associated with your Cisco job.

“If you comment on any aspect of the company’s business or any policy issue the company is involved in where you have responsibility for Cisco’s engagement, you must clearly identify yourself as a Cisco employee in your postings or blog site(s) and include a disclaimer that the views are your own and not those of Cisco. In addition, Cisco employees should not circulate postings that they know are written by other employees without informing the recipient that the source was within Cisco.”

I disagree with many of Cisco’s patent reform suggestions, but I admire the way the company is handling this issue.

Notes:

Dennis Crouch

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

67 thoughts on “Patent Troll Tracker & Cisco’s New Blog Policy

  1. So far as the legallity of “gaming the system” goes, isn’t that exactly what California is suing Enron and other utilities for?

    “The other reason Lemelson was successful even though he invented nothing new was the licensing scheme he established with his lawyer. A brilliant method, but that does not make Lemelson an inventor.”

    Perhaps he should have patented the licensing scheme with a business method patent.

  2. Heaven forbid we should “consider the source” when we read an anonymous blog. I’d like to thank all those suing PTT for giving my intelligence ZERO credit.

  3. The other reason Lemelson was successful even though he invented nothing new was the licensing scheme he established with his lawyer. A brilliant method, but that does not make Lemelson an inventor.

  4. “Is there an ‘unfairly gaming’ doctrine we patent attorneys should be made aware of?”

    Yep. It’s called equity. If you unfairly game the system, equity can bite you (in this case prosecution laches, in other cases inequitable conduct).

    But I wasn’t talking about practice as a patent attorney. Gaming the system, by definition, means that the action was permitted under the system. And since patent attorneys are only concerned with complying with the system, one can hardly blame Mr. Lemelson for complying with the system.

    I was talking about a reason why Jerry Lemelson was criticized long before the Federal Circuit chimed in. You don’t need a court, the MPEP or Congress to know when someone is gaming the system, which is why the comment about the “recent” prosecution laches doctrine (like your comment) was pointless.

  5. Everyone take a quick minute to see one of Mr. Riley’s contributions to the workout machine art link to google.com

    Reproduced below is claim 1.
    1. An apparatus for controlling a treadmill (10) having a motor (32) that drives a belt (18) that can be moved between a use position (86) and a storage position (88), comprising:
    a control panel (14) having signal producing means (20-30) for producing a plurality of signals, said plurality of signals including an initiation signal and a mode selection signal;
    signal detecting means (36) for detecting when each of said plurality of signals is produced by said producing means;
    position determining means (85) for determining whether the belt is in the use position (86); and
    characterized by preventing means, coupled to said position determining means, for preventing the motor from being powered to drive the belt when said belt is not in the use position and shutoff means (38), coupled to said signal detecting means (36), for monitoring a time period between production of said initiation signal and said mode selection signal and for shutting off all power to the motor (32) when said time period exceeds a preselected maximum.

    So you mean to tell me that your contribution is a mechanism to stop the motor from turning the belt when the device is not in proper “use” position, and also has had a “go” signal sent within a specific period of time of a “mode select” signal? Talk about solving a problem eh? Your treadmill at home turning on mysteriously? Let me take a wild guess, the prior art consists of a treadmill that has a shutoff means (or turn-on prevention means) when it’s not in proper position, and a seperate treadmill that has a shutoff means (or turn-on prevention means) when the treadmill hasn’t had a “go” and “mode select” input sent within a specific period. Man, way to go you overachiever you! Keep up the good work, we need more “inventionlols” post haste! Don’t waste time on this blog, keep “inventinglol” <<< notice no opinion on patentabililolty, his work could very well be patentalolble. A statement that says more about the system than anything else though. People say "oh, e6k, you've never invent anything omfg" Hmm, well I see in a different patent, 5707319, Mr. Riley tells us about an adaptive speed control. Sooooo, for my newest "inventionlol" I claim a workout machine comprising the same as claim 1 above additionally comprising an adaptive speed control <<<< endless lolz ensue but still no opinion on that idea being patentable. Oh, and btw, my "utility" is making an exersizing apparatus amiritelol?

  6. “Prosecution laches is only a relatively recently recognized ‘doctrine’, isn’t it?”

    Yes. I’m “just wondering” what your point is. People knew long before the Federal Circuit affirmed the prosecution-laches case that Lemelson was unfairly gaming the system.

  7. Sorry cave, I was typing at 3 in the morning before I went to bed, which I was want to be in. “Couple that with disrespect for those who have gone before you (which you clearly suffer from)” I hardly disrespect my elders, I pay them more than their due in fact. The fact that I see them squabbling around like children about “inventions” that are nothing more than a college students senior project AT MOST really irks me. A man like Edison etc. living in our time today would know very well that the patent system has “devolved” in it’s intent in light of the current society. You’re right, the same ol questions are as old as time, the problem is, technology has advanced to a point where the amount of “invention” displayed in applications is minimal at best in the VAST majority of cases. In addition, the means by which it is examined has remained largely the same, while the volume of art available to the public increases exponentially across innumerous distribution methods.

    “I hope you can appreciate the irony of us tooprdeoing the bill with an expendature of less then a tenth of a percet what the patent deform proponents are spending.”

    LOL, if your position is so great and self evidently true as you tout it to be the fact that you had to spend any millions to push through your view is astonishing. One simple letter to each congressman should have done the trick and the whole congress would immediately line up in your favor. Total Cost: 100$ at max (if you hire a secretary to take care of the copies etc).

    Too bad we all know that’s not true, and you’re merely arguing for your “right” to a legal monopoly that isn’t even a right at all.

    Maybe I should dig up a few “gems” from your “inventions” in your patents so we all know just how great of an inventor you are and how unquestionable (questionable) your contributions to the art really are.

  8. “Patent pirates most certainly conducted a smear campaign against Jerry Lemelson. It was just as outrageous as the troll campaign.”

    Again, was it a smear for the Federal Circuit to point out that, without any explanation on his part, Mr. Lemelson unreasonably waited over thirty years from his original filing dates to present claims to cover bar-code-scanning technology?

    I applaud your efforts to derail the patent reform bill in its present form because it’s flawed in many, many ways. But your defense of inventors generally (as Lionel noted above) looses much of its force when you refuse to acknowledge that Jerry Lemelson was derided for his prosecution-laches-laden portfolio. There are plenty of inventors whom the public is more than willing to embrace and citing one example (Edison) of an inventor who was criticized in his day does not justify all other inventors who are criticized.

  9. Hutz said:

    “Mr. Riley,

    You lost all credibility when you state the following:

    “Patent pirates most certainly conducted a smear campaign against Jerry Lemelson. It was just as outrageous as the troll campaign.”

    And went on to say”

    “Lemelson never invented anything in his life other than ways to game the patent system.”

    “If anyone had the guts and the bankroll I believe all of his patents would be invalidated.”

    Are you saying that the USPTO got all of about 600 patents covering many disiplines wrong? I don’t think so.

    Besides, I know many top inventors quite well and Jerry Lemelson is highly respected in those circles which include many Nobel and Inventors Hall of Fame inductees.

    Edison was disparaged in his time and for the same reasons. Namely that both men enforced their patents.

    I knew Jerry Lemelson quite well and his intellect and inventing capacity stood out as exceptional among some of our greatest inventors. He produced material in an amazing number of disiplines. That was not an accident.

    What I see in your post is sour grapes. Whats wrong, did you tangle with Jerry’s people and end up getting your tail kicked?

    All successful inventors are products of their envirnment. It is an envirnoment where once you produce something of value some skum bag large patent pirating company comes along and does their best to steal the inventor’s work. If the inventor has the gall to fight back then they are the subject of a vicious media campaign to paint them as a submariner or a vicious troll.

    Nothing has changed between the patent reform fight in the nineteen-nineites and the one today. In both cases thieving companies conducted smear campaigns against inventors and in both cases those inventors toorpeded patent deform legislation in honor of fellow inventors who were being unjustly defamed. I hope you can appreciate the irony of us tooprdeoing the bill with an expendature of less then a tenth of a percet what the patent deform proponents are spending. Clearly the proponents are not the brightest bulbs in the pack because they keep making the same mistakes: )

    March 4, 2008 patent deform was dealt a mortal blow by organized labor. This is a result of a partnership between the Professional Inventors Alliance, the Ingenuity Alliance, and numerous unions. Reid now has a very serrious problem and there is no way they can gather the sixty votes they need to move this bill.

    Chew on that!

    And one last point, common interests between inventors and labor transend the patent deform issue. We find that we have many areas of mutual interest. The implications of this will become apparent as we move ahead. Patent pirating transnational corporations are not going to be very happy campers :)
    Ronald J. Riley,

    Speaking only on my own behalf.
    Affiliations:
    President – http://www.PIAUSA.org – RJR at PIAUSA.org
    Executive Director – http://www.InventorEd.org – RJR at InvEd.org
    Senior Fellow – http://www.patentPolicy.org
    President – Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (202) 318-1595 – 9 am to 9 pm EST.

  10. JAOI(tm),

    Just name the time and place, and I’ll buy the first round.

    And call me Leo. All my friends do.

  11. Good afternoon Lionel,

    Thank you for your follow up comment.

    The many discussions regarding Cisco’s alleged violation of the LDA were prior to Monday’s admissions and admonitions by Cisco Systems, Inc. And Monday changed the picture considerably since key discussion sticking points prior to Monday were no longer arguable, and there has been no substantive discussion subsequent to Monday.

    I’m a one man one-stop inventing shop and I wear all the hats (my wife wears the pants(;o). All my outside counsels cost over $600/hour. How about this?, I give up, you win. You are right, that way I can afford my Early Times and a night out on the town after a heavy day spent blogging) and I sincerely hope you will cut me some slack since in my heart, especially after Monday, I believe an attorney like yourself could mount a formidable argument either way regarding whether or not Cisco violated the LDA. No matter the possible outcome of such a debate, would you at least agree with me that what Cisco did was ignoble and reprehensible?

  12. “America is the benevolent de facto democratic leader destined to lead the way, and given a little more time, we’ll get it right yet again, because we Americans are best at one thing in particular, leading— leading is inherent, inbred, all the ways back to Christopher.”

    For most of its existence, America has been isolationist. Most of the world does not want to be led even though a majority of the worlds population would probably rather live in the US than where they are. (After all, people from all over the world sneak into the US but only North Koreans are so desperate that they will sneak into China.) America can only lead by example and at the moment it is not doing a good job of it.

  13. Mr. Riley,

    You lost all credibility when you state the following:

    “Patent pirates most certainly conducted a smear campaign against Jerry Lemelson. It was just as outrageous as the troll campaign.”

    Lemelson never invented anything in his life other than ways to game the patent system.

    If anyone had the guts and the bankroll I believe all of his patents would be invalidated.

  14. Dear Mr. Leopold Bloom,

    My thinking was that we all have come along way together since Hispaniola. Consider how far The United States has come since adopting Our Constitution— blistering progress if we step back and consider the old human nature.

    About Mr. Columbus, didn’t he get him a green card, or was he an illegal alien (o¸õ)?

    Care to raise a glass with Mr. Hutz and me? We’ll all be bigger and better for it.

  15. JAOI,

    Let me be clear, I believe your statements were arrogant because you apparently believe that you are as capable of interpreting the law and case law as any lawyer and yet still assert unreasonable positions.

    Certainly legal interpretation is often more debateable and more open to interpretation than the majority of the sciences, but when you have a general consensus on an issue like you do here, you may want to question your position.

    Here’s a suggestion. I am sure you or your company employs a lawyer or lawyers. Ask one of them for an objective opinion of whether Cisco violated the LDA or any other statute.

  16. “America is the benevolent de facto democratic leader destined to lead the way, and given a little more time, we’ll get it right yet again, because we Americans are best at one thing in particular, leading— leading is inherent, inbred, all the ways back to Christopher.”

    As in Columbus? I wasn’t aware that he was American. If he’s your example of a benevolent de facto (?) democratic leader, then you might want to consider the fate of the original residents of Hispaniola.

  17. Dear Mr. Lionel Hutz,

    Forgive me please for arguing with you yesterday regarding The Lobbying DISCLOUSRE Act of 1995 (LDA). I felt bad for offending you (assuming I did).

    At the end of the day, the LDA really doesn’t amount to a hill of beans for Cisco. The penalty (see below) is only $50K, not very significant when your revenues are $35B. The potential (non-government) civil damages are another thing altogether. But with me, it is the principle of the thing, not the principal.

    SEC. 7. PENALTIES.
    Whoever knowingly fails to—
    (1) remedy a defective filing within 60 days after notice of such a defect by the Secretary of the Senate or the Clerk of the House of Representatives; or
    (2) comply with any other provision of this Act; shall, upon proof of such knowing violation by a preponderance of the evidence, be subject to a civil fine of not more than $50,000, depending on the extent and gravity of the violation.

    Care to raise a glass and make up? I’m sure we’ll both be bigger and better for it.

  18. (Note: This could also have been posted on European IP Attorney Severin de Wit’s article, “Intramurals: The European Patent Divide”
    link to patentlyo.com )
    ——————–

    問 候 (Greetings):

    I too was impressed with Thomas Friedman when I first saw him on interview shows. (No, I haven’t read his books; between staying alive, staying alive, inventing and blogging, no time to say hello good-bye no less read Tom’s award winning books).
    But I did listen to some of his lecture link to mitworld.mit.edu

    However, after mulling everything over, I figure flat comes and goes— the world has been flat before— then round again, then flat, then round … in cycles, maybe like the universe, it comes and goes round then flat endlessly, no beginning, no end, like a Möbius flat, who knows?

    For example, skipping Early Times (my brand of bourbon, the price is right) & Biblical times, before the flat Roman Empire, the world was rounder.
    Then after Rome blew it, the world got round once again, but along came the British Empire to flatten things once more, but that too didn’t pan out forever.
    Then Germany tried to flattening the world, but along came good old US of A and we stopped that flattening at great human cost with our great friends over there.
    Then Germany’s misguided despicable despot (we won’t name inflammatory names lest we offend) tried his hand at flattening the world, but along came good old US of A again and we saved the day once more with our great friends. It is ideal, of course, to have so many great friends.

    And now we are beginning to enter the first of the Yet-to-be-named third millennium Empire. And low and behold International Big Organized Business, IBOB, is trying to pull-off and Orwellian accomplishment and flatten everything once again and in doing so make us who use-to-be-individual happy people, uniformly gelded members of a herd.

    Even if the world does grow flat, there will still be a center, a “Capitolium.” Where do you think that capitol-center should be?, perhaps in أبو ظبي‎ ?, Aνταρκτική?, 北 京 ?, Berlin?, Berne?, Brasília?, Brussels?, London?, Москва́?, New Delhi?, New York?, Pretoria?, Roma?, ’s-Gravenhage?, Sydney?, 臺 北 市?, or 台 北 市 , 東 京?, or Washington, DC? (When in Roma, speak as the Romas do; I tried to list alphabetically— did I get it right?).

    However, consider the animosity in even a single continent trying vainly to flatten its patent systems: How’s that working for ya’ over there across the pond? “Hop in” and “Give it a tink” before you answer, and please also consider this (plez sing along to this part):

    All I am saying, is give US(A) a chance!

    America is the benevolent de facto democratic leader destined to lead the way, and given a little more time, we’ll get it right yet again, because we Americans are best at one thing in particular, leading— leading is inherent, inbred, all the ways back to Christopher.

    再 見

    只 是 一 個 普 通 的 發 明(技 術 備 忘 錄)(o^õ)

  19. #6K – Apparently the new “genration” can’t spell, or think very well. Too many video games I suspect. I hope you are not representative of the Examining corps.

    Don’t kid yourself #6K, change has always been with us. The perils of youth that you seem to be caught up in involve thinking that you’re the first one to have encountered and come up with a “solution” to any particular problem. With a knee jerk reaction being “oh, we should change that” without even really understanding what you’re doing or what the consequences are.

    Couple that with disrespect for those who have gone before you (which you clearly suffer from) and, presto, you are a poster child for the saying “those who fail to study history are doomed to repeat it.” I have news for you. All the problems in the world today are as old as mankind – including, young doofuses thinking they invented change (and I’m not really even “old”). Only the packaging has changed.

  20. I was going to respond with a lot of text. But I should have just flamed you. Dennis doesn’t like people being flamed, so I won’t do it today. I may however give you a call on your direct line. Bigcorp aside, there’s a new genration coming up, and we don’t see things quite like you old timers, even sans bigcorp “influence”. Change is a comin’. “deform” or not, change is a comin’.

    One thing I cannot let go, 26 years of delay on 600 patents? That’s actually quite different from the average (as calced by D). Now, 600×90(avg) = 54000? 54000/365= 147.9 years < 26 years. Hmmm, looks like you guys got off easy eh? E6k

  21. “Posted by: Paul F. Morgan | Mar 25, 2008 at 11:20 AM

    “Anonymity seems to supported even for active lobbyists. In 1999 a major lobbying opponent of patent reform was an organization alleging to represent “small inventors” in general. In spite of reasons to believe that they were being secretly funded by particular individual abusers of the patent system [NOT large corporations] it proved impossible to force them to disclose who was actually funding them.”

    The organization you are referring to is the Alliance for American Innovation. It is a group of inventors, mostly commercially successful inventors who are intent on preserving a fair, affordable, and accessible patent system.

    As you can see from the sig file below the Alliance for American Innovation (AAIUSA.org) is alive and well and the Professional Inventors Alliance is a DBA of AAIUSA. Yes, we are the same people who tied the patent deform people in knots from 1991 to 1999. We are inventors who are really tired of companies who lie, cheat, and steal. Companies who flood the patent system with narrow incremental improvements in a vain attempt to accomplish with quantity what they are incapable of doing with quality.

    We learned quickly that if big companies could find a lever that they would try to destroy any small business which had the gall to oppose patent deform. That is why we structured our operation so that corporate stooges could not identify our members who needed to remain anonymous.

    We were self funded. For example, I expended over a million dollars in that fight. Many other inventors and small businesses also made huge expenditures relative to their size. We each paid our own way.

    Patent pirates most certainly conducted a smear campaign against Jerry Lemelson. It was just as outrageous as the troll campaign.

    I most certainly would have welcomed Jerry Lemelson with open arms but his attorneys insisted that he stay away from the patent reform battle. And he did stay away.
    Contrary to the submarine smear campaign the real source of excessive delays with a very small percentage of Jerry’s roughly 600 patents was the USPTO. As I recall the USPTO was responsible for 26 years of delays.

    It seems to me that Paul F. Morgan is misinformed about these issues.
    Ronald J. Riley,

    Speaking only on my own behalf.
    Affiliations:
    President – http://www.PIAUSA.org – RJR at PIAUSA.org
    Executive Director – http://www.InventorEd.org – RJR at InvEd.org
    Senior Fellow – http://www.patentPolicy.org
    President – Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (202) 318-1595 – 9 am to 9 pm EST.

  22. Injunctions are equitable remedies. You can only get an equitable remedy if you can show that your remedy at law (e.g. money damages) is inadequate. At least that is what I was taught. But what do I know?

  23. Dear Mr. rat,

    I didn’t use the word “injunction” because that word is not in the patent clause of the Constitution. I was careful to phrase my question thusly:

    “Do I hear you saying that if a patent is found valid and infringed after Lady Justice sings the final song, the patentee is not entitled to stop the infringement?”

    Please note that above and to the right of the red ribbon and gold seal on the cover of United States patents “granted under the law” by the Director of the USPTO, the following is printed:

    “Therefore, this United States Patent

    Grants to the person(s) having title to this patent THE RIGHT TO EXCLUDE OTHERS FROM MAKING, USING, OFFERING FOR SALE, or selling the invention throughout the United States of America or importing the invention into the United States of America for the term set forth below, subject to the payment of maintenance fees as provided by law.” (emphasis added)

    The Constitutional basis for the Director of the USPTO making this
    “Grants to the person(s) having title to this patent…”
    is explained in some detail on this link:

    link to patentlyo.com

    If you’d care to share them, I’d like to hear your views.

  24. JAOI

    The Constitution does not give a patentee a right to an injunction. An injunction is always a discretionary remedy – a point reasserted by SCOTUS in eBay. No one is “entitled” to an injunction, even if they are commonly and properly given under many circumstances.

  25. Mr. rat,

    Do I hear you saying that if a patent is found valid and infringed after Lady Justice sings the final song, the patentee is not entitled to stop the infringement?

    Because if that’s what you think, then we will have to agree to disagree, because the Constitution says otherwise and so does the ribbon copy of each of my patents.

  26. “It seems SELF-EVIDENT that the value of a patent should not depend on who owns the claim; there are good patents and there are bad patents. [emphasis added] …”

    The debate is not about the “value” of the patent per se but rather under what circumstances a patent holder (non-practising entity or not) should be granted an injunction so he can extract from an infringer the value the infringer has sunk into the invention or created by its effort, over and above the objective value of the patent itself. I agree with SCOTUS when it said that the status of the patent holder is relevant to a consideration of whether or an injunction is an appropriate remedy. Further the damages suffered by a patent holder may depend a great deal on who the patent holder is. If a patent holder has been unable to persuade anyone to licence their patent and has tried and failed to develop a product, it is hard to see how they can claim to have suffered any actual loss if an innocent infringer comes along later and makes a success of the same (independently derived) idea.

    The fact that some non practising entities have been seeking to enforce dubious patents has fueled and given a focus to the debate. An infringer can independently invent something, invest millions in bringing the product to market, develop a market worth billions and then find themselves threatened with shutdown by an NPE who is either not interested or not able to convert their patent (which may or may not be valid) into a product or a market.

  27. Dear Mr. Lionel Hutz,

    Re:
    “Trust us when we say that there was nothing legally actionable about an anonymous blog maintained by a corporate exec.” (When you say “us,” who do you mean specifically?, or do you have a mouse in your pocket? I mean, a lot has come down since Monday when Cisco admitted culpability for the anonymous Patent Troll Tracker blog lobbying.)

    With all due respect, I mean no offense, but I don’t know how else to respond to your rather off-putting comment other than to say that’s pretty funny, I mean really really funny— “trust us lawyers.”

    (Hey guys, please don’t get mad at me, but you got to admit, when a lawyer emphatically insists, “Trust us when we say that there was nothing legally actionable about…” something, you got to smell a rat. (No offense intended Mr. rat.) Even I, Just an ordinary inventor, know that. I mean, I didn’t Just arrive on a banana boat yesterday, and I’ve been around the block more times than I care to admit.)

    Mr. Hutz, under these particular circumstances, to be candid if I may for a moment, I would not trust you to tell me the time of day— again, no offense, I really don’t mean to be, as you accused me— of being too arrogant.

    If you want to engage a serious, non-insulting discussion, I suggest you sit down and put pen to paper and analyze The Lobbying DISCLOSURE Act of 1995 and other relevant guidance in light of Monday’s Breaking News regarding Cisco’s admissions and admonitions (Guilty with an explanation and apology, but Guilty nonetheless). Please bear in mind, Cisco did not make its postings to be “good guys”; Cisco was caught big-time with their hand anonymously in our government’s three cookie jars, and it tried to avoid forestall further damage.

    Wake up, smell the coffee; you’ll want to thank me later. And please, no more insults or you’ll get me in terrible treble trouble.

    If you prefer Mr. Hutz, let’s skip the preliminaries; what do you think about my comment to Mr. rat straight above?

  28. Dear Mr. rat,

    I had another thought about your comment in which you purport to criticize some bad patents: Be that as they may, your observation is consistent with the excerpt from Mr. Hosie’s article:

    “It seems SELF-EVIDENT that the value of a patent should not depend on who owns the claim; there are good patents and there are bad patents. [emphasis added] …

    No one would argue that all issued patents are valid and should be upheld, not even me with my rather strong self-serving bias toward strong patents.

    “Stuff ” happens, prior art is missed, mistakes are made, people abuse the system and have subjective and or biased views, and so forth.

    These to-be-expected problems with patents would be diminutive if each Federal Circuit Panel comprising three highly-skilled-in-the-patent-Judging-arts rendered Opinions consistent with other Federal Circuit panels. And it would follow that District Court Judges would be guided accordingly, and the reversal rate would drop dramatically.

    However, here is the underlying problem: Even with the scholarly state-of-the-art consistently clear claim construction counsel found in the en banc Phillips decision, which should have dramatically improved panel consistency– remarkably, the inconsistencies from one panel to the next significantly increased.

    And why didn’t en banc Phillips fulfill its destiny? I believe the Breaking News story of Cisco’s treachery points toward the answer. Pejorative Troll talk propaganda perpetrated by, for example, Cisco and other members of the “Coalition for Patent Fairness,” has poisoned our government’s view of our patent system thorough and through, at the Congressional level, the executive level, in our District Courts and at the Federal Circuit.

    Bowing to the public, legislative, executive and judicial and other distorted-by-propaganda pressures regarding politically-correct patents, the Federal Circuit Panels opine every which way rendering result-oriented Opinions while ignoring en banc Phillips, other precedential case law and the merits of certain patent infringement law suits where one litigant doesn’t practice the invention.

    Thus, the number of result-oriented decisions from District Courts and from the Federal Circuit has been steadily increasing.

    Under The United States Constitution, even one result-orientated decision influenced by anonymous propaganda is one too many, and we all know there have been at least some untold sum, who really knows how many?, for example, how many result-orientated decisions have there been since May 2007 when Cisco Systems, Inc. admitted to first perpetrating its wholesale public deception v. the American patent system on its blasphemous Patent Troll Tracker blog?

  29. JAOI,

    Are you so arrogant, that you would argue with a page full of lawyers about interpretation of the law?

    Trust us when we say that there was nothing legally actionable about an anonymous blog maintained by a corporate exec.

    Now, if some specific crime were committed, such as libel, that could be actionable. Attacks on patent trolls do not count as defamation. As Penn said on “Bullsh!t” when he attempted to explain their use of vulgar language (and I am paraphrasing) “If we called these guys frauds and cheats and their actions cons, we may could be sued, but if we call them motherf___ers and their statements/products Bullsh!t, we are fine”

  30. Leopold Bloom,

    With all due respect, did not your mama teach this?, if you don’t have something nice to say, think twice before you say it.

    And if you are going to criticize an article and maintain some semblance of credibility, it would be advisable to read the article. Or, as Archie Bunker might say, hold thy mout (spelling?) or stifle thy self.

    And please remember the old proverb, Silence is Golden. An apology would be a good thing, and you’ll sleep better tonight, and you’ll want to thank me in the morning.

  31. Dear Mr. rat,

    Thank you for your comment, but, with all due respect, I beg to differ, to wit, one of the excerpts attributed to Mr. Hosie was:

    “It seems SELF-EVIDENT that the value of a patent should not depend on who owns the claim; there are good patents and there are bad patents. [emphasis added] …

    I believe that comment alone subsumes your concerns, and the whole article, “Defending The Trolls” does so en gross and in great style.

    Endnotes:
    1) I do not have the honor of knowing Mr. Hosie, but his reputation precedes him.
    2) One more thing, if I may say without sounding too bold— By no definition I know of do I fit the cast of a troll.

  32. The problem with Mr. Hosie’s comment is that he ignores the possibility of legitimate concerns. There are some of us who are not unsympathetic to small inventors and yet when we question whether Forgent really has a patent on jpeg or MercExchange should be able to patent “Buy it Now” or Weather Wise should be able to patent risk arbitrage or NTP should have been able to patent wireless email and be paid $600 Million for a patent that had no causal connection with the development of the BlackBerry we are met with a hysterical defense of the status quo which comes down to the proposition that any change will be the end of the American Way and life as we know it.

    JAOI you and Mr. Hosie and Mr. Riley need to get a grip. If you deny that there are any problems when there are obvious cases that give rise to concern over how the system works then you are simply opting out of the grown-ups’ debates.

  33. I’ll tell you what I think, Jaoi(tm). I stop listening (or reading) when a writer or speaker throws out a ridiculous false choice, like: “AT THE END OF THE DAY, EITHER WE RESPECT AND PROTECT INTELLECTUAL PROPERTY OR WE DO NOT.” That’s when I know the author is not interested in an actual discussion of a complex issue.

  34. It was Benjamin Franklin (Benny, as he was affectionately known to his closest friends) who said this of Democracy:

    “Our Constitution is in actual operation; everything appears to promise that it will last; but in this world nothing is certain but death and taxes.”

    And furthermore, please see the really really good comment by “They call me ‘SELF-EVIDENCE’” above, and also please see me, Jaoi™, above, beyond and elsewhere:
    link to patentlyo.com

    You’ll want to thank me later— no really, you will, or your money back, Just pay shipping.

  35. ‘Malcolm Mooney’ is just an alias the in-crowd around here uses when they want to say something flippant. I thought everyone knew that.

  36. Dear CaveMan,

    Thank you for your enlightened comment and kind concern.
    If Sir Bedivere were still alive today, he’d probably ask you:
    “Who are you who are so wise in the ways of the science of linguistics?”

    Mr. Webster concurs with your surprising comprise diagnosis thusly:
    Main Entry: com•prise

    3 : COMPOSE , CONSTITUTE a misconception as to what comprises a literary generation — William Styron ; about 8 percent of our military forces are comprised of women — Jimmy Carter
    usage Although it has been in use since the late 18th century, sense 3 is still attacked as wrong. Why it has been singled out is not clear, but until comparatively recent times it was found chiefly in scientific or technical writing rather than belles lettres. Our current evidence shows a slight shift in usage: sense 3 is somewhat more frequent in recent literary use than the earlier senses. YOU SHOULD BE AWARE, HOWEVER, THAT IF YOU USE SENSE 3 YOU MAY BE SUBJECT TO CRITICISM FOR DOING SO, and you may want to choose a safer synonym such as compose or make up. (emphasis added)

    What did you think of the comment by “They call me ‘SELF-EVIDENCE’”?

  37. The following excerpts are from a brilliant tell-it-like-it-is article titled “DEFENDING THE TROLLS” written by

    Spencer Hosie, Esq. at Hosie McArthur LLP,

    circulated Monday (3/24/08) in “IP Law 360” published by Portfolio Media, Inc. http://www.law360.com :

    “… VERY EFFECTIVE LOBBYING. Organizations like the “Coalition for Patent Fairness,” and the “Business Software Alliance,” have done a remarkably effective job disparaging the patent system generally. [emphasis added; insert: Yes, of course, Cisco Systems, Inc. is a member of “Business Software Alliance”]

    “The ceaseless drumbeat about patent trolls and extortionate litigation has made a difference, as evidenced by the effort to ensure “patent reform” in Washington. … to impugne the entire system is both deceptive and unfair.

    “The irony in all this, of course, is that the question of troll status is entirely a matter of subjective opinion. Is IBM a troll if it enforces patents it does not practice? …

    “… But what do the merits of a patent claim have to do with whether the plaintiff practices the patent, or once did but no longer does?

    “It seems SELF-EVIDENT that the value of a patent should not depend on who owns the claim; there are good patents and there are bad patents. [emphasis added] …

    “And if an IBM seeks to enforce a bad patent, it should not get a free ride simply because it is IBM.

    “AT THE END OF THE DAY, EITHER WE RESPECT AND PROTECT INTELLECTUAL PROPERTY OR WE DO NOT. AND IF WE DO NOT, INNOVATION ITSELF WILL BE THE LOSER.” [emphasis added]

    The author of this tell-it-like-it-is article titled “DEFENDING THE TROLLS,”
    “Spencer Hosie, founded what is now Hosie McArthur LLP. In addition to his active trial practice, he serves as advisor to the American Law Institute, Restatement of Torts: Liability for Economic Loss.”

    “SELF-EVIDENCE”

  38. Oooh, a thousand bucks, REALLY???
    Nah, it’s probably worth more to keep em on my good side.
    (but….money? I could USE money!)

  39. JAOI, remember, despite the CAFC being a bad grammar enabler and saving the bacon of attorneys who apparently didn’t know any better with the recent ruling, “comprised of” is improper grammatical usage.

    By using “comprised of” you risk sounding like an ignoramus to someone who is well informed and judgmental. The correct usage in your above post would be “comprising.”

    Other than that, “carry on.” But watch that gasket pressure.

  40. MalMoon rising,

    I believe it’s “my ears are burning.”

    If your ears are ringing, it’s tinnitis, or you need to turn down Credence on your iPod.

    These folks only want to know who you are so they can nominate your picture for the $20 bill.

  41. And furthermore, we are only seeing the tip of the iceberg so far, a landmark situation that will give rise to a landmark lawsuit, a milestone in American patent history. The firestorm is has just begun— To me, what Cisco did was corporate treason, but sometimes I’ve been know to overreact (o,o?.

  42. Dear Mr. rat,

    Thank you for your advice, which is quite sound. However, for the most part, I, being Just an ordinary inventor, try to stay out of such puddles, and I try to leave the heavy paddling to extraordinary attorneys.

    But when blind justice gets tampered with by dirty stealthy corporate lobbying fraud, things go awry with those writing laws in our Congress, with those leaders changing rules in our executive agencies and those sitting in the jury boxes and on the benches of our courtrooms. Please bear this in mind— what happened was problematic in the worst way. Under the cloak of anonymity, Cisco hijacked various parts of our government.

    For one example, how many result-oriented District Court and Federal Circuit patent decisions have been unduly influenced by the “public service” propaganda Cisco’s Patent Troll Tracker perpetrated?

  43. “Moreover, I would not be surprised if Cisco were sued in a Class Action comprised of injured American patent holders and patent pending holders, and that Cisco would face ACTUAL DAMAGES and PUNITIVE DAMAGES totaling many billions of dollars.”

    If you are going to paddle in a lawyer’s puddle, you really need to get a better understanding of how law works.

  44. 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.

    + + + + +

    Now that Cisco Systems Inc. has officially admitted it is culpable to the extent it has (Guilty with an explanation and apology, but Guilty nonetheless), it is painfully clear to the most casual observer that CISCO materially CONTRIBUTED in some part to the major deconstruction of the American patent system, and that thousands of inventors’ valuable patent rights have been destroyed or diminished en gross. Here are a few of the facts so far, and they are not in dispute:

    “Cisco is a major part of the ‘Coalition for Patent Fairness’— an organization lobbying for weaker patent rights.” (Quote from article above).

    Cisco has officially published the following statements (excerpted):
    ———————–
    “Because you are legally responsible for your postings, you may be subject to liability if your posts are found defamatory, harassing, or in violation of any other applicable law.” {Cisco addressed this to its employees}

    “However, GIVEN THAT RICK WORKED ON INTELLECTUAL PROPERTY MATTERS FOR CISCO, RICK’S RELATIONSHIP TO CISCO SHOULD HAVE BEEN MADE CLEAR AND CISCO TAKES RESPONSIBILITY FOR THE CONTENT OF THE BLOG. (emphasis added)
    2. We believe that a few Cisco employees used poor judgment when they suggested topics to Rick for his anonymous blog or pointed third parties to the blog without disclosing that the content was created by a Cisco employee. These are not appropriate communications activities for Cisco employees and are inconsistent with our values and principles.

    We believe we have learned a valuable lesson from THIS REGRETTABLE SITUATION.” (emphasis added)
    ———————–

    I believe that ensuing investigations will confirm this finding— that Cisco is in part culpable for destroying and diminishing thousands of inventors’ valuable patent rights. CISCO should be held accountable not only to inventors, but also to We the American People.

    Moreover, I would not be surprised if Cisco were sued in a Class Action comprised of injured American patent holders and patent pending holders, and that Cisco would face ACTUAL DAMAGES and PUNITIVE DAMAGES totaling many billions of dollars.

    * * * * *

    In addition to the CIVIL MATTER discussed above, under The Lobbying Disclosure Act of 1995 We the American People were/are entitled to know WHO was/is LOBBYING for WHAT. Given Cisco’s recent admissions of stealth and guilt, it would be folly to suggest that Cisco did not violate The Lobbying Disclosure Act of 1995, especially considering 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) These are FACTS, and they are not in dispute.

    This is Jaoi(TM) and I Joyfully approved these messages:

    link to youtube.com

  45. It’s interesting that I find nothing in Cisco’s statement that suggests there will be no internal retribution against its blog-participating employees. Their requirements are set forth to protect the company alone. I wonder how long this guy Frenkel will last at Cisco once the lawsuit is settled.

  46. Anonymity seems to supported even for active lobbyists. In 1999 a major lobbying opponent of patent reform was an organization alleging to represent “small inventors” in general. In spite of reasons to believe that they were being secretly funded by particular individual abusers of the patent system [NOT large corporations] it proved impossible to force them to disclose who was actually funding them.

  47. Thank you for posting Ciscos’ new policy relating to free speech by corporate patent attorneys. However, I note that it requires identification of the company for any comments that might relate to company activities [besides the usual disclaimer that the expressed views of the employed are personal]. That would conflict with policies on this subject of other companies [which are often internally inconsistent] prohibiting mentioning the company name in private employee speeches, and other direct or indirect inhibitions on public debate or even active IPL professional activities.

    It is very unfortunate that corporate patent attorneys, who are the only ones paying for, rather than benefiting from, abuses and inefficiencies of the patent system, are to a large extent inhibited from public input on the subject.

  48. “But eventually this opened the door for a perception that Cisco *somehow* had something to hide. Cisco is committed to transparency in our communications and in the relationships we have with all of our constituencies, and we regret that this situation occurred.” [emphasis added]

    No, really? You don’t say. :-)

    So perhaps the Coalition for Patent Fairness (which includes Cisco et al.) also will be committed to transparency regarding the now nameless role that the Ontario branches/offices of Research in Motion may hold in fashioning U.S. patent policy as it is being lobbied before the U.S. Congress.

    link to nipra.org

    Unfortunately, I think a large number of business entities only seem to find a desire to become “transparent” (in quotes) once they have been exposed (since, obviously, it makes business sense then). Much, perhaps, like a “remorseful” kindergartener who has been caught with her hand in the cookie jar, and for whom a display of remorse is the best strategy to both secure a lenient punishment and ensure that future cookie grabs will remain possible.

    Like Dennis, I “admire” the company’s display in handling this issue.

  49. Cisco Systems Inc. and one of its employees are being sued by Texas attorneys claiming the employee anonymously defamed them on a Web site critical of so-called “patent trolls” that sue technology companies over intellectual property rights.

  50. #6K – you’re giving Mooney too much credit. He (his persona) is like a fly at a picnic or a squirrel at a cotillion. You should think it funny that he seems to be around more than anyone else if you catch my drift. Of course you seem to be around quite a bit too. That you consider him “legion” says more about you than you may care to have said.

  51. Feathers, your second link is nice. My contributions, for example, are given under a pseudonym because I think I have something on point, and worthwhile, even occasionally provocative, to enliven the thread, but I also have clients, and I have family. I’m thinking that some silent unbalanced reader (how many thousand do you boast these days Dennis?) might not like what I write and might even come to the idea of expressing his displeasure with actions rather than words. I recall the menacing line from many a work of fiction “We know where you live”.

  52. MM is your dad, your brother, your grocery store clerk, your attorney, your examiner, your gas attendant, your police man, your oil refinery worker, your electrical plant worker, your cable man, and your best friend … in short, MM is anonymous, and he is legion. Though admittedly less so than Anonymous.

    I on the other hand, am just your examiner, and young examiner at that. Funny enough, I’m also legion. I get the feeling that some people around the office might know who I am personally though. At least one person. It would not have been hard for this person to put 2+2.

    Can I claim the 1k$?

  53. Sorry Dennis, with all due respect, your penchant for understating things to the point of obfuscation continues to amaze me. I would cite as a recent example your comment that first to file was somehow a “non-controversial” provision of reform proposals. 231 posts later (possibly a Patently-O record?) it appears that first to file may be quite controversial after all.

    A second example might include understating the importance of the 35 U.S.C. 120 issue that was raised during the Rules Fiasco last November and that ultimately provided the required basis for an injunction staying the implementation the rules.

    Now, for example, you write:

    “…a *potential* reputation firestorm” [emphasis added]

    It’s as if you are already writing a sanitized postscript to the entire affair.

    I would like to say that, again, in my anonymous yet humble opinion, expressed as invited fair commentary, reputations have quite probably already suffered damage – I can say reputations are diminished in my mind. To take it slightly further, in my opinion, certain behavior, particularly ex post, was not good for the patent bar at large.

    Please understand,I personally wish we, as a profession, never reached such a precipice. Aside from my concern for the collective reputation of the profession, I do not have a specific dog in the fight.

    I am a simple caveman prosecutor. But I do know one thing:

    Unless, arguendo, you somehow know something the rest of us don’t, we do not know how the case will turn out . Therefore, the damage to reputations cannot yet be calculated and the potential for damage, in my opinion, is large – which might have been what you were trying to say above.

    However, I don’t believe any amount of backpedaling, expression of policy, mission statements or other Dilbert-esque corporate machinations will change that. If anything, in my opinion, the activity seems to be an attempt to create policy ex-post in a desperate attempt to mount a specific defense for a specific party or at least so that any future potentially actionable activities can be identified as violating the corporate policy and thus will not give rise to corporate accountability.

    The idea that measures are being taken altruistically to protect free speech and thus enhance reputation is, in my opinion, a bit naive.

  54. “I didn’t read any suggestions from Cisco’s … postings that would address the damage that its Patent Troll Tracker blog (Cisco has officailly accepted responsibility for the blasphemous blog) has been done over the past year.”

    And what damage is that JAOI? When has a point of view on a matter of public debate, freely, if intemperately, expressed, damaged anything? Please point to a single instance where something that PTT said caused real damage (hurt feelings and offended sensitivities don’t count).

    Interesting that you would use the term “blasphemous” to describe PTT blog…

  55. “The policy: No anonymous blogging or comments on issues associated with your Cisco job.”

    The policy is very unclear. A Cisco employee cannot have an anonymous blog about the goings-on of their pet cat, Mr. Snookums? Also, the purpose of the Patent Troll Tracker blog seem be about issues associated with Mr. Frenkel’s Cisco job?

  56. Dropped the line about how they are liable under the Lobbying Act of Blah blah already have we JAOI?

    Everyone knows some of the things on the blog were poor form. Nonetheless, the facts as presented are as they are and they are not defamitory, nor have they done “damage” to the patent system. Spreading facts, contrary to what you’d have us believe JAOI, is a good thing. End of story.

  57. Dear Mr. Michael Barclay.

    I, Just an ordinary inventor(TM), don’t run a blog— I wouldn’t know how, I’m from the old school.

    Are you suggesting that everyone who posts on Patently-O should reveal his/her identity?

    * * * * *

    Regarding Cisco’s blogging policies which it posted today:

    Far be it from me to suggest, too little, too late, but I’m reminded of the Humpty Dumpty rhyme with a twist:

    Our patent system sat on a wall
    Our patent system had a great fall
    All the king’s horses and all the king’s men
    Couldn’t put our patent system together again

    I didn’t read any suggestions from Cisco’s anonymous (as pointed out above) postings that would address the damage that its Patent Troll Tracker blog (Cisco has officailly accepted responsibility for the blasphemous blog) has been done over the past year.

    Here are some excerpts from Cisco’s official, but anonymous, postings today:

    “Because you are legally responsible for your postings, you may be subject to liability if your posts are found defamatory, harassing, or in violation of any other applicable law.” {Cisco addressed this to its employees}

    “However, given that Rick worked on intellectual property matters for Cisco, Rick’s relationship to Cisco should have been made clear and Cisco takes responsibility for the content of the blog.

    2. We believe that a few Cisco employees used poor judgment when they suggested topics to Rick for his anonymous blog or pointed third parties to the blog without disclosing that the content was created by a Cisco employee. These are not appropriate communications activities for Cisco employees and are inconsistent with our values and principles.

    We believe we have learned a valuable lesson from this regrettable situation.”

  58. I concur. Though to my knowledge my employer has no such policy.

    I’m telling you guys, Dennis isn’t just reading my comments to support his commentary about the way the trend for strong IP rights is headed.

    And yes, I said I’d behave, but let me be honest with you here for a minute Dennis. Your concern about the “reckless poster” problem is one that was faced already in other online communities, and the end result is almost always loose moderation.

  59. Dennis,

    This is great. I can’t wait for the PTT blog to go back online.

    Does this also mean that “Just an ordinary inventor(TM)” is going to reveal who he/she is?

    –Michael Barclay

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