Migrated from eDJGroupInc.com. Author: Barry Murphy. Published: 2011-06-09 05:30:53Format, images and links may no longer function correctly. No sooner did Recommind announce that it had patented predictive coding, there was an article on law.com about the unhappy reaction of Recommind’s competitors.  With the blogosphere chirping, I thought it a good idea to weigh in on this news.   I read the Recommind press release, which states that the patent covers “systems and methods for iterative computer-assisted document analysis and review. This patent gives Recommind, its customers and its partners exclusive rights to use, host and sell systems and processes for iterative, computer-expedited document review.”  It is not hard to see why competitors are reacting defensively to this release – since it would appear at first glance that Recommind would be the only company allowed to provide predictive coding software.

I spoke to Craig Carpenter, VP of Marketing at Recommind to get the company’s position. According to Craig, the press release is “about more than terminology: it is about a process patent covering ‘systems and processes’ for iterative, computer-assisted review. Recommind believes it has long been on the record as to exactly what predictive coding is, and as a result of this patent, it expects competing vendors to follow suit accordingly, and stop claiming predictive coding capabilities they do not have.”  Clearly, Recommind feels it has pioneered the concept of predictive coding and doesn’t want any competitors riding on coattails.  Of note, Recommind is not putting a trademark on the term “predictive coding,” meaning that other vendors can still use the term. In reality, though, Recommind is banking on interest in predictive coding to continue to grow. The company has purchased the URL www.predictivecoding.com and that site is clearly a marketing vehicle for Recommind.

One market factor to consider is that this could have a chilling effect on the use of predictive coding tools from other vendors – since clients probably won’t want to get caught in the middle of a patent war.  One could hypothesize that Recommind is hoping for just that.  Even though the company claims they don’t see lawsuits on the horizon, one does have to wonder why they went through the whole patent process to begin with.  Coupled with the URL purchase for the marketing site, it sure seems like Recommind is doubling-down on predictive coding, so why not protect that investment with litigation?

The competitive response will be interesting. Already, competitors are wondering aloud how Recommind could patent something that is comprised of approaches that have been around for many years. Carpenter points out that the patent is truly about the marriage of technology and workflow. One very real risk for Recommind is that the rest of the market bands together and gets behind a different term, such as predictive tagging. If that happens, Recommind could wind up on its own predictive coding island, having put a ton of resources behind a term that loses traction. Carpenter’s argument to that is that “the patent covers not the terminology, but the technology and the processes, no matter what they are called.”

There is another risk for Recommind in this strategy: that the battle over this particular patent becomes much ado about nothing. A similar situation played out about a year ago when many vendors got involved in the scale and performance wars while prospects ultimately either didn’t care about benchmark testing numbers or didn’t believe the testing numbers.  In my experience, prospects rarely do a deep‐dive patent analysis when looking at software solutions. Patents are nice and help protect IP, but are not always the difference between winning and losing a deal. The functionality underlying predictive coding, however, is easier to measure than scale and speed, so perhaps prospects will take an interest in the patents.

No matter what, this is good news for the eDiscovery market as a whole.  One could say that Recommind is doing prospects a favor by throwing down the gauntlet and forcing competitors to transparently define exactly what “predictive coding” capabilities they do/do not have.  While that might be a side-effect, it’s more likely that Recommind is trying to take the heat around predictive coding and have it warm up the vendor’s prospects more than anything else.  We at eDJ take this as a call to better define what predictive coding is and what solutions need to offer to be valuable. To that end, we’ll be launching some research in the coming weeks on this very subject. Have thoughts? Please comment on this post…

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