Patent Bar Brawl: Lawyers Suing Cisco Subpoena Legal Blogger

Patently-O logoSince March, there's been a legal brouhaha in patent circles, as lawyer Eric Albritton sued a blogger as well as the blogger's former employer, Cisco, for libel. Now the dispute is spilling wider, as the plaintiff has sent a subpoena to a well-known law professor and blogger, Dennis Crouch, who wasn't part of the controversy at all. What's Albritton after? Only the identities of people who anonymously commented on Crouch's blog, Patently-O. Now there are probably prominent patent attorneys sweating because they left a comment and potentially could get dragged into the middle of the conflict.

The Patent Troll Tracker Blog, written by Richard Frenkel, would regularly razz so-called patent trolls. The derogatory term refers to small companies and individuals who would obtain patents and then, without creating their own products or services, sue large companies for infringement. Last October, he allegedly wrote that Albritton had "conspired" with a court clerk "to alter official documents in a proceeding involving Cisco." At the time, Frenkel did the blog anonymously, with, he claims, the knowledge of his immediate superior. No one higher up in the company supposedly knew.

But by February 2008, attorney Raymond P. Niro was offering a $15,000 reward to anyone who could unmask the Patent Troll Tracker's author. (Niro is a patent lawyer who supposedly inspired the term "patent troll," which may have been an explicit PR move on the part of Intel.)

Frenkel unmasked himself in February. By March, Albritton had filed suit against the blogger and Cisco, saying that the posts had been conducted in his official capacity. (Cisco has denied that charge.)

As one might expect, the situation has been a hot topic for many of the IP-focused blogs and discussion groups. The latest development was a subpoena to Crouch, an associate professor of law at the University of Missouri School of Law, as well as author of Patently-O. As he wrote, the subpoena's requests are "quite broad":

In part, this request is seeking information about the identity of anonymous blog commentators and those who have sent me private emails regarding this case. As I have mentioned previously, my blogging service retains additional information regarding the identity of commentators (such as IP address, etc.), and a full response to the subpoena request could include that information.
He has already replied to Albritton's attorney. "Time will tell whether a motion to quash will be necessary," as he noted in his blog.

Aside from the public spectacle, there are some thorny considerations for high tech companies. Many people in high tech blog, and some, like Robert Scoble who started his blog when he was a technical evangelist at Microsoft, become popular. The greater the attention a blog receives, the greater a chance that someone might take offense and involve the employer.

I'm planning to speak with some corporate and publishing attorneys to get a better idea of the boundaries, and will report back as soon as I have something of substance.