Dispelling the Perceived Risk of Discovery in Crowdsourcing

By Cheryl Milone

Crowdsourcing has been an area of growing use and recognition in the IP industry. Where the recent White House and USPTO initiatives are successful, the quality of patents issued in the future will increase.  This in turn, should reduce patent litigation based on patents of questionable validity.

In the meantime, litigation is a primary area for prior art research used by defendants to assess the validity of patents asserted against them.  With crowdsourced evidence frequently used in litigation defense, in-house and outside counsel litigation counsel appropriately address risks for various litigation tools.  One is a perceived discovery risk with crowdsourcing.

Article One Partners understands this issue and has deliberately addressed discoverability in numerous ways on our platform; first and foremost, we hold tightly to the principle that the “evidence speaks for itself.”

We have reduced client discoverability risk by eliminating any opinion or interpretation by our researcher community.  Further methods of protection include mitigating discovery risk through confidentiality in our researcher agreements, and the fact that the work we perform is subject to work product immunity and protective order protection against discovery for evidence provided by a non-testifying consulting expert.

Article One was tested just once in 2010 – no other similar situations have arisen since that one trial. In that instance AOP “went to the mats” for our client with Pillsbury Winthrop as counsel, quashing a motion to compel. Judge Cedarbaum of the SDNY even noted that the patent owner’s attempt to seek discovery was “an act of desperation.”

Clients have been approached by other crowdsourced companies, but they lack the patent legal expertise that AOP already has built into the platform and offer no management of discovery risk. This creates unnecessary exposure. Some even invite discovery by enabling public and private dialogue on the art.  With legal input from AOP executives in combination with the insights of Marshall Phelps and Ruud Peters, crowdsourcing through Article One is the best way for clients to mitigate risk.

The Actual Experience of AOP Clients: No Impact

Six years after our founding, Article One’s client base now consider the risk of not using AOP to provide the strongest possible litigation defense as greater than the perceived risk of discoverability in crowdsourcing. As a result, outside counsel facing an increasing standard of care for prior art searching work with AOP in order to ensure the most comprehensive search for their premier representation.

Our client base has been canvassed for their thoughts on the litigation impact of crowdsourcing searches through AOP, and the consistent answer has been that there is no impact. Our client base acknowledges risk in any litigation strategy, but deems AOP’s evidentiary value to outweigh discovery risk and have never encountered an actual impact. Hundreds of cases have settled or been resolved favorably for clients due to AOP’s evidence without a negative impact.  It appears that the efforts of aggressive litigating parties to scare defendants only serves to reinforce the value of AOP evidence.  Aggressive litigants now fear evidence uncovered by AOP’s crowd.

The JDG Cost of AOP Crowdsourcing: Pay Once For AOP’s Premier Collections

Feedback from Article One clients confirms that they pay more in outside counsel fees for time spent discussing the topic as in Joint Defense Groups (JDG) than they would have paid running a single AOP Study. While attorneys in JDGs strive for efficiency and cost savings jointly, there are limitations in majority or consensus decision-making.

For cases in which AOP is declined as the search of choice, AOP clients have given feedback that the client ends up paying the same or more in billable hour fees – and lack the evidence that could have been uncovered in an all-encompassing AOP search.  Some senior executives have expressed, “Why isn’t AOP used in every one of our cases?”  AOP is available to support a leadership bulletin for our clients to provide to their in-house and outside counsels to trigger an AOP search; in this case, the evidence and the benefits are paid for just once through a single comprehensive search rather than repeatedly through billable hour discussions.

[This post originally appeared at Patent Quality Matters.]

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