Patent Quality Matters | Article One Partners Blog

Wikilitigation: Here to Stay

  

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By Cheryl Milone, Founder and CEO of Article One Partners

I applaud Rebecca Burn Callander’s post on Wikilitigation and the insights Ms. Callander offers on the use of crowdsourced evidence to shed light on the accuracy of medical research.  The circuitous and expensive path of litigation would have been the alternative, subjecting the public to a decision on important medical topics to a battle of the experts.  The risk here was not for Mr. Singh alone but for the public in need of access to accurate medical data.  On a broader level, the public subsidizes the current legal system in both the U.K. and U.S. so the public pays in multiple ways.

Clear and efficient analysis is what is needed to provide accurate information to the public on topics subjected to litigation.  The personal interests of parties are regularly served by the machine that makes up the legal system - attorneys, experts, consultants, judges and service providers supporting these components.  These stakeholders generally are compensated based on the continuation of a legal dispute, not on its settlement.  As such, the incentives to serve the public and provide justice as a public policy basis are misaligned with the stakeholders responsible for realizing these policies.

In this litigation, the risk to an individual and the public was great enough to spur public action.  And the result is dramatic in providing evidence that becomes incontrovertible, as it is the aggregation of knowledge from everyone with an interest in the topic.  The aggregation of knowledge is greater than that of any one individual.  When the aggregate answer is clear, the power of providing certainty becomes as important as the answer itself.

Whenever an answer is knowable if enough people are asked and the same set of people is burdened by a failure to uncover the right answer, asking everyone would seem to be a natural evolution.  Hence, I believe that Wikilitigation is not only going to survive but it will be the dominant form of input from an increasingly sophisticated public.  The notion of citizen’s review is discussed in every branch of government from those agencies, which grant rights to citizens to the legal system, which adjudicates those rights. 

One excellent example is the grant and adjudication of patent rights.  A patent is, in essence, a description of technology as of a certain date (in the U.S., the date is called the invention date).  The determination of whether to grant a patent is based in part on research about whether the description of technology is in an earlier dated publication.  Courts later review the same question, and litigants in a patent dispute further research the earlier publications.  While the U.S. Patent & Trademark Office does high quality work, its resources are limited to fully research this evidence, which can be publicly available documents in any language from anywhere in the world.  The burden on the public for improperly granted patents is the payment of monopoly pricing for products and systems covered by the patents. 

Article One Partners, which I founded in November 2008, provides the opportunity to the public to weigh in on these questions based on a platform that crowdsources this evidence.  An incentive is added to the platform so that researchers are compensated for uncovering premier evidence.  In this way, the public can weigh in on patents and correct an improper grant thereby providing savings to the public.

This takes the goal of making the court accessible to the public a step further, by compensating the public for their efforts – in effect monetizing a public good.

In the same manner as the publicwas given clarity about the efficacy of medical claims in the chiropractic field, public input on scientific research underlying patents can support the proper scope of some patents which provides litigants with the evidence needed to correct improper grants. 

The community of Article One Partners provides a valuable service along the lines of Wikilitigation in the patent industry.  We invite members of the public interested in pursuing these goals to join our efforts at www.ArticleOnePartners.com.  While the evidence provided cannot definitely provide an answer on patents, just as the litigation against Mr. Singh continued past the revelation of the public information, it can drive settlement of litigation and enable the parties to proceed more efficiently.