Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2011-07-06 08:21:46  When a major eDiscovery controversy breaks out, the eDJ team usually gets on a call to discuss and designate who should take the lead in response. Barry Murphy did a great job going to the source on the Recommind predictive coding patent announcement.  I also enjoyed Herb Roitblat’s analysis of the patent content. At first, I did not figure that I had anything to add that had not been covered. Numerous ongoing discussions with clients, sponsors and contemporaries made me realize that I did have two cents to toss into the whirlwind. Designing and consulting for software companies got me in the habit of digging into the use of open source and potentially patented technologies. I know of many patents held by early innovators that have never been enforced on the market.Many years back, I spoke with Skip Walter, founding CEO /CTO for Attenex (now owned by FTI), about all of the patents that he had filed. At the time, he felt that the potential business impact of trying to be offensive with a patent was not worth the potential loss of partnering opportunities or the opening up of counter-infringement actions. I agreed at the time and still feel that trademarks and patents are good defensive mechanisms to stop a competitor from purposefully infringing on your brand or copying your proprietary innovations.  Skip now favors patent risk solutions like RPX, Rational Patent, that use alternative strategies to manage the risk of patent litigation.The problem is that everyone in the review market is attempting to conquer the same digital mountains, each with their own combination of technology and work process. That makes understanding what is ‘innovation’ and what is actually ‘prior art’ fairly challenging to developers and to potential customers alike. There are many different approaches to predictive coding, iterative machine training or whatever you want to call it. I agree with Barry that this could expose some providers ‘black box’ solutions to public inspection and even lead to increased clarity in the marketplace. In the meantime, I feel that Recommind’s aggressive stance may make parties hesitate to try out any predictive coding solution. Review timelines are tight and the stakes are high. Who wants to bet on a new technology when there is even the slightest chance that an Intellectual Property (IP) case might lock you out of your review platform in the middle of a case? Is this actually likely to occur? Probably not, but can you really take that chance with your client’s case?In the highly conservative eDiscovery market, any word of quality issues, scandal, fines, acquisitions or other potential instability can be the death knell to a provider. I have seen product after product languish after being bought, just because the buyers all wanted to wait until they saw how the new company was going to handle the product. My guess is that the biggest short term impact of Recommind’s media releases and blogs will be borne by their sales force.  Every company should protect their intellectual property. There is a difference between a demand letter in response to a direct infringement and a deliberate media blast that seems stake out ‘predictive coding’ as company property and threatens widespread, unspecified enforcement actions.I want to be clear that I am not commenting on the actual patent scope or whether anyone has actually copied Recommind IP. Any publicity is NOT necessarily good publicity in our conservative market. These kinds of public disputes can feed many counsel’s natural reluctance to embrace new solutions. Our market is just reaching the corporate sector and mature purchasing departments research heavily before funding seven figure capital investments. It is already a struggle to make the Return on Investment arguments to most corporations for enterprise search, collection and information governance platforms. The threat of patent wars may be the excuse some executives are looking for to postpone litigation readiness initiatives one more year. I hope this is not the case and we do not hear about any actual enforcement filings. Our young market needs all the positive press it can get. So has Recommind’s announcements impacted your ongoing purchase? Let me know.

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