Tapping Into a Worldwide Network to Find Prior Art

What do Apple, Samsung, Sharp, Garmin, Palm, HP and Dell have in common?

What do Google, Facebook, Yahoo and AOL (also Apple and others) have in common?

Certainly they all rely significantly on technology for their revenues and their future. The commonality is that they are all defendants, having been sued for patent infringement.

Group A: You’ve seen the headlines from 2008 to 2010 about Intellect Wireless, Inc. heading (often) into the Northern District Court in Illinois to seek jury trials and damages for alleged patent infringement. Group B is under fire from Interval Licensing, LLC., Paul Allen’s IP house. What has made these cases, the second was referred to recently as “fairly uninteresting” patent legislation, something to watch is the fact that Article One Partners (a two-year-old, Silicon Valley company) has been engaged to support a key defense tactic, the existence of prior art.

In essence, Article One writes up a description of what they call the “Study,” and sends it out to their proprietary list of scientists and researchers (they claim 3 million), offering a bounty (up to $50k, presumably based upon the fee the contracting parties pay) for evidence of prior art.  “We are interested in receiving evidence such as product manuals, press releases, product specifications, product reviews and photographs of prior art products.”

This fascinates us.  Does it work? Article One says it does.  “In 2009 and 2010, we paid out a total of $50,000 as a bonus to hundreds of Researchers in addition to the $960,000 we have paid out in rewards to date.”  It also appears they have a 50% success rate. And that may well go higher, for according to their own statistics, of the 20 hours of government review spent on each patent, only 2 were spent on prior art research. This could be a game changer, though David Postman, a spokesman for Interval, doesn’t “take it as a serious threat.”

Really? In this corner, weighing a backlog of 1.2 million applications, wearing the overworked and understaffed trunks of general staffers, you have USPTO, willing to offer up two hours of prior art research for the average patent.  In the other corner, wearing the brightly colored trunks of 3 million incentivized researchers and weighing up to $50,000, you have the multi-national, multi-lingual outreach of Article One. I repeat, this could be a game changer.

Still, one pauses. Presumably the fees charged by Article One are large (as they probably should be) and going up with their successes.  What does it mean when Apple, or Google, or a consortium contracts with them?  Does it mean the economics are such that Article One is cheaper than doing the research yourself?  Does it mean you have done the research yourself and find this is your best course as a defendant? Is it an admission that without discovery of enough relevant prior art, Paul Allen’s got a case?  Though there are four patents in suit [Allen complaint], is it just one patent that is sticky?

“Patent Study Details:  Article One Partners has launched this Patent Study requesting prior art that provides a path to invalidity for United States Patent No. 6,263,507. Prior art submitted, preferably non-patent literature, must not already be known based on the history of the patents at the Patent Office. The Reward is guaranteed to be paid to the Researchers who submit the highest quality prior art for the Study.”

I haven’t tried @articleone, but isn’t this begging for a social media application? Receivers of a Tweet would know to check the Web site for the Study particulars. Taking sides on a case, which Twitterfiles tend to do, would seem to be mitigated by the significant bounty… the higher the likelihood of controversy, the higher the payout. 

The real benefit of this, though, might be the issuance of quality patents from the beginning, though at considerably higher cost, as this extensive search for prior art would need to be accomplished and reports filed upfront. The need for this will be still more acute with increased internationalization and the global attention paid to IP value.