"Litigation Avoidance", or Ammunition for a Duck-Hunt? Crowdsourcing Commercialised.

This Kat has recently had his head buried in what appears to be an ever-expanding pile of examination papers. Recalling the tale of the magic porridge pot from when he was but a kitten, the Kat became afraid that the streets of London would soon be awash with books upon books of handwritten answers to fiendish questions. Fearing for his sanity, he therefore turned to the internet (which, as everybody knows, is guaranteed to put one back on the straight and narrow) where he came across some interesting news that he thought he would share.

The past 24 hours, it appears, have unofficially been dedicated by some unnamed deity to the cause of crowdsourcing – or more specifically to crowdsourcing as it applies to the invalidation of patents. Mere hours before the UK IPO’s press release announcing the launch of its Peer-to-Patent trial (state-sanctioned P2P, if you like) (noted by the IPKat here), Article One Partners announced (.pdf warning) the acquisition of their first client in a commercial enterprise aimed at the same general goal – finding the prior art that lurks in a metaphorical cupboard only to jump out and accost a patentee at some inconvenient point in the future.

A press release to announce only one client may seem overeager; however, when you are told that the client is Microsoft and you realise that they were granted 3086 patents by the USPTO in the 2010 calendar year alone, then a press release (or indeed a megaphone, flag and stepladder) suddenly becomes eminently sensible.

The service offered by Article One Partners is described in its press release as a “Litigation Avoidance program”. It explains:

“Litigation Avoidance is designed to help companies analyze and act on patents of questionable quality. Through the new service, Article One identifies pre-litigation patents and distributes requests to over one million scientists and technologists to research the validity of the patents. Article One uses that collected research where appropriate to file reexamination requests with the U.S. Patent and Trademark Office (USPTO). Litigation Avoidance clients receive access to all of the collections that have been researched in the program. The service leverages the proven success of Article One’s global community which conducts research to identify evidence predating patent claims, known as “prior art.”

“NPEs continue to actively target large technology companies and often with portfolios of questionable quality. Article One’s Litigation Avoidance program is a powerful tool to fight this challenge,” said Bart Eppenauer, Chief Patent Counsel at Microsoft Corporation. “Litigation Avoidance gives businesses another tool to address patent quality issues prior to litigation to reduce risk and potential litigation cost. Together with other Litigation Avoidance members, we will be able to better address questionable patents in the pre-litigation phase to deter litigation. We are excited to add this to our patent defense strategy.”

The service is accordingly visualised as a troll vaccine. However, the Kat wonders whether the fact that Microsoft now has access to “all of the collections that have been researched in the program” might also provide it with some ammunition to engage in a rather broader duck shoot. The comments at the end of the press release that “Article One also has researched state of the art collections and patents already in active litigation” serve only to increase this suspicion. Nevertheless, the press release continues:

“Litigation Avoidance focuses on pre-emptive action around specific patents identified pre-litigation. By collecting more relevant information about prior art, Litigation Avoidance can make the patent system work more effectively and can help eliminate patents that do not deserve protection through USPTO reexaminations. As the community gathers more evidence, the service creates a network effect for all members to benefit from the research. This is particularly valuable given that the number of defendants per NPE lawsuit has almost doubled in two years from 3.3 in 2008 to 6.0 in 2010.”

The silver bullet in Article One’s arsenal is that it does not rely on the altruistic tendencies (or indeed, at the other extreme, axe-grinding) of its community of reviewers. It rewards them with cold, hard cash; proudly proclaiming that it has awarded over $1.3 million to its community of researchers since its inception in 2008. Whether this is a viable model for long-term success remains to be seen, however Article One’s approach certainly addresses one of the main concerns voiced in relation to the state-run Peer-to-Patent projects in both the U.S. and Australia – how to acquire and maintain an active community of researchers. While all of the pilot projects thus far completed have reported significant degrees of success, it is clear that the majority of the communities' work is being undertaken by a small and dedicated core of individuals. Incentivising participation in the community with performance-related monetary rewards may be one way of expanding this pool of experience, and accordingly increasing the impact of the Peer-to-Patent projects themselves. However, the practice of offering bounties is evidently not something that could easily be adopted by the respective Patent Offices themselves - cries of gamekeepers turned poacher would be heard called from the rooftops if it were. Perhaps, therefore, a commercial enterprise such as that of Article One Partners is the way forward.

For this Kat, however, exam scripts are calling – once more unto the breach…