The inventor who holds the patent that was at the heart of two libel lawsuits against “Patent Troll Tracker” blogger Rick Frenkel and Cisco Systems was arrested last week, after police found an illegal stockpile of firearms, ammunition, and grenades in his home in Manchester, Mass., about 30 miles from Boston.
Gregory Girard, named inventor on U.S. Patent No. 7,283,519, believed he was readying himself for “Armageddon,” according to police. In addition to having around 20 firearms, Girard was stockpiling food and medicine, camouflage, and body armor, and had built an indoor shooting range in the attic of his condominium, according to accounts of the arrest in the Gloucester Daily Times and the Boston Globe. Girard had a license for the guns, but his explosives, double-edged knives, and habit of shooting indoors are all illegal.
On Wednesday, a Massachusetts superior court judge deemed Girard too dangerous to be released and ordered him held until his probable cause hearing on March 15. According to police reports, Girard recently told his wife: “It’s fine to shoot people in the head because traitors deserve it,” and “Don’t talk to people, shoot them instead.” (His wife reported concerns about his increasingly paranoid behavior to authorities the day before he was arrested.) For Girard, those “traitors” may have included most members of Congress; news blog TPM Muckraker notes that Girard has been an active poster in far-right Internet forums for the past month.
In 2007, Girard’s patent was the basis of an infringement suit that his holding company, ESN, filed against Cisco Systems. For ESN, it was a hugely important suit; one of ESN’s lawyers later testified that his client was seeking “potentially hundreds of millions of dollars” from an East Texas patent win against Cisco.
Frenkel, then a Cisco in-house lawyer blogging anonymously as the Patent Troll Tracker, wrote two posts about the case, ESN v. Cisco, in late 2007, criticizing ESN and two of its East Texas lawyers: Eric Albritton and T. John Ward, Jr., who do a lot of work for the kind of patent-holding companies often derided as “patent trolls” — shell companies with no products, no employees, and no business other than filing patent lawsuits. In one post, Frenkel claimed that ESN had “jumped the gun” by suing Cisco one day before its patent had even issued, and accused Albritton of improperly asking the court clerk to alter the filing date of the ESN lawsuit.
In 2008, after Frenkel was forced to reveal his identity as the Patent Troll Tracker, Albritton and Ward filed libel lawsuits against him and Cisco, claiming Frenkel’s blog posts about ESN v. Cisco were defamatory. As The Prior Art blog has chronicled, Albritton’s claims were heard in a closely watched trial last September. (See PTT trial coverage part 1, 2, 3, 4).
Greg Girard did come up at the libel trial — but not as an Armageddon-fearing weapons hoarder. Instead, ESN’s lawyers praised Girard as a brilliant individual inventor — the cornerstone of American innovation. George McAndrews, a founding partner of McAndrews, Held & Malloy and one of the lawyers representing ESN in the suit against Cisco, praised Girard in a letter to Cisco general counsel Mark Chandler: “Mr. Girard is exactly what the founding fathers had in mind when they penned the Patent Clause in the basic Article I of the U.S. Constitution.” Frenkel’s use of the term “Patent Troll” to describe ESN was “outrageous,” wrote McAndrews. “Thomas Jefferson and Ben Franklin, both individual inventors like Mr. Girard, were also not manufacturers in the traditional sense,” the letter said. “To call Mr. Girard and his company ‘Patent Trolls’ and to accuse him and his legal counsel of criminal activity is irresponsible, unfair and defamatory.”
The Albritton trial ended with an abrupt confidential settlement before the case reached the jury. (In court, a tearful Albritton testified that his calls to the court clerk were to “correct” the docket, not to doctor the filing date.) Ward’s libel case also settled on confidential terms earlier this month.
ESN v. Cisco, meanwhile, was thrown out of an East Texas court in late December 2009, when federal district court Judge David Folsom ruled that the patent was actually owned by Girard’s former employer, a small telecom company called Iperia. Last month, ESN’s lawyers at the McAndrews Held firm filed a notice that they will appeal Judge Folsom’s dismissal of the suit. (McAndrews Held is also the firm that prosecuted Girard’s patent application; it is handling the case against Cisco on contingency.)
The co-owner of ESN, a Connecticut attorney named Brian Hollander refused to answer questions about Girard’s arrest when contacted Thursday by The Prior Art. “I don’t think it has anything to do with anything,” he said. “I’m not going to talk about it.” Hollander was equally circumspect about the Cisco suit, saying only, “It’s not over — the case is not over.”
Charles Verhoeven, the Quinn Emanuel lawyer who represented Cisco in the ESN case (and has had a few big successes in East Texas lately), deposed Girard in the litigation, but said he noticed nothing unusual about the inventor’s behavior. Verhoeven only found out about Girard’s arrest from news reports that a colleague brought to his attention.
Despite the sideshow of the Patent Troll Tracker blog posts and the libel suits, Verhoeven’s strategy for winning the case for Cisco focused on the facts surrounding the assignment of Girard’s patent. He discovered that Girard had signed an employment agreement, which included an invention-assignment clause, before starting work at Iperia, the telecom company that employed him in April 2001. That’s when Girard filed a provisional patent application, which ultimately became the ’059 patent.
With evidence in hand that Iperia, rather than Girard, owned the rights to the ’059 patent, Cisco negotiated to purchase the patent for $500,000 — which included a $200,000 “kicker” if the purchase ultimately held up in court. Iperia’s former CEO, who is a friend of Girard, filed a declaration stating that he was fine with Girard’s patenting activity and that it wasn’t covered by the employment agreement. But Judge Folsom disagreed, finding that Girard’s invention was in an area of technology quite similar to Iperia’s. Any oral agreement between Girard and Iperia’s CEO was ultimately less important than Girard’s written agreement to give Iperia rights to his inventions, he ruled. (Here is Judge Folsom’s order.)
“This is something defendants should be looking at in every NPE case,” said Verhoeven, using the acronym for “non-practicing entity,” a euphemism for patent troll-style companies. “Often, the patents have been transferred not once, but two or three times. There’s a risk that those transfers haven’t been done appropriately.”
Give Girard a break. It’s tough to double-check all your documents and build a weapons stockpile at the same time.
