Katie Graham is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

A dated August 5, 2022 from the United Kingdom’s High Court of Justice has the potential to expand the definition of “artistic works of craftmanship” under UK copyright law. Deputy High Court Judge Stone rejected a motion by the defendants, Liking Ltd. (“Liking”), to strike out Water Rower (UK) Ltd.’s (“WaterRower”) claim for copyright infringement in its WaterRower water resistance rowing machine on the basis that the machine is not a “work of artistic craftmanship” within the UK’s .

The Facts at Issue

As a member of the 1975 US National Rowing Team and having studied naval architecture, including wooden boat design, John Duke sought to design a wooden rowing machine in which the user has a “welcome emotional connection, as they would with a piece of furniture”. The first versions of this machine were developed between 1985 and 1987 and, since this time, there have been eight iterations of the WaterRower and it has grown to be an “iconic design” in the UK and US. Liking admitted to copying the eighth iteration of the WaterRower in creating its rival rowing machine, the TOPIOM Model 1. However, Liking argued that since the WaterRower could not be considered a “work of artistic craftmanship,” no copyright subsists in the WaterRower.

Court’s Decision

While the Court did not ultimately conclude whether the WaterRower is a “work of artistic craftmanship” under copyright law, Judge Stone ruled that the question of whether the WaterRower could be considered as such is one that requires a full trial and cannot be determined in summary judgment. This ruling was based on the leading House of Lords authority on works of artistic craftmanship, George Hensher Ltd v Restawile Upholstery (Lancs) Ltd.[1] Though Hensher provides a less than clear definition of what constitutes works of artistic craftmanship, Judge Stone considered that:

1. The artist’s intention is relevant to whether a work is artistic, and there is evidence about Mr. Duke’s intention as a craftsman; and
2. It is unclear that the WaterRower is less artistic than the examples of artistic works given by Lord Simon in Hensher, including hand-painted tiles and stained-glass windows.

As such, Judge Stone rejected Liking’s argument under Hensher that, on any view, WaterRower has no real prospect of proving their machine is artistic.

What could this mean for UK and Canadian copyright law?

If the WaterRower is found to be an artistic work of craftmanship at trial, this would indicate that the UK courts are adopting a more flexible definition of “artistic”, especially in relation to functional works that are generally considered more congruent with the patent framework.

In Canadian copyright law, works of artistic craftmanship are generally limited to those “intended to have an appeal to the aesthetic senses” (). Given the evidence of John Duke’s intention to create a wooden rowing machine that evokes emotion, the argument could be made that the aesthetic features of the WaterRower are protected under the Canadian copyright regime. However, since the WaterRower has been mass produced for the fitness industry in Canada, the Canadian would intervene and only permit the aesthetic features of the useful machine to be protected, so long as these features are distinctive. To date, neither WaterRower or Liking have applied for design protection in Canada, though other rowing machine designs�� have previously been registered in Canada.

[1] George Hensher Ltd v Restawile Upholstery (Lancs) Ltd��[1976] AC 64 (“Hensher”).

The post The WaterRower: A Work of Art “Oar” Not? appeared first on IPOsgoode.

Katie Graham is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Sonos achieved a major milestone in their Canadian patent battle against Google, which follows several rulings in favour of Sonos in their corresponding US litigation (previously published in the IPilogue ).

In an infringement action against Google LLC (“Google”) dated August 15, 2022, Justice Zinn of the Federal Court of Canada in favour of the defendants, Sonos, Inc. (“Sonos”). This case concerns the infringement of Claim 7 of Canadian Patent No. (“150 Patent”) relating to Google’s method and apparatus for adaptive echo and noise control. Sonos counterclaimed, alleging that Claim 7 of the 150 Patent is invalid for obviousness and lack of invention.

The Court held:

1. Sonos does not directly infringe Claim 7 of the 150 Patent;
2. Sonos does not indirectly infringe Claim 7 of the 150 Patent by inducing users to infringe; and
3. Claim 7 of the 150 Patent is valid.

This decision follows the of Sonos’ motion for summary judgment in March 2021, where Sonos alleged that Google made factual admissions in a corresponding US proceeding related to the infringement of US Patent No. , for which the 150 Patent claims priority. Justice Southcott of the Federal Court of Canada rejected Sonos’ arguments that Google’s voluntary dismissal in the US action represented an admission of non-infringement or eliminated any genuine issue for trial.

BACKGROUND

Claim 7 of the 150 Patent, owned by Google, details a method and device for echo and noise control in a device that adaptively determines an order of noise suppression and echo cancellation based on noise in the input signal. This patent allows for voice assistants in smart speakers, such as Amazon Alexa and Google Assistant, to change how much background noise is filtered out (i.e., noise suppression) when addressing a user’s commands, also referred to as “echos” (i.e., echo cancellation). Google claimed that five of Sonos’ products (collectively, “Sonos Devices”), all of which are compatible with Amazon Alexa and Google Assistant, infringed Claim 7 of the 150 Patent.

CLAIM CONSTRUCTION

In constructing Claim 7, Google and Sonos’ experts disagreed on whether echo cancellation is a subset of noise suppression or whether these terms are mutually exclusive. Google submitted that “noise”, as confined to the asserted claim, was to be interpreted generally to include all background sound and user commands. In contrast, Sonos interpreted “noise” more narrowly to include only background sound, not user commands. Justice Zinn sided with Sonos to interpret noise in the narrow sense, thus concluding that echo cancellation and noise suppression are mutually exclusive processes.

INFRINGEMENT

Direct Infringement: Justice Zinn succinctly shut down Google’s claim that the Sonos devices directly infringe the 150 Patent. Out of the box, the Sonos devices are simply speakers and do not have voice assistants set up and configured. The essential elements of Claim 7, echo cancellation or noise suppression, require user activation of the compatible voice assistants. Thus, the court held that Sonos does not directly infringe Claim 7 of the 150 Patent.

Indirect Infringement: The Court focussed on considering whether Sonos indirectly infringed Claim 7 of the 150 Patent by inducing their users to enable Amazon Alexa or Google Assistant. ��Justice Zinn sided with Sonos in finding that their technologies are not configured to adaptively adjust these elements based on input noise as described in Claim 7 of the 150 Patent. Instead, these processes are user controlled or done in a pre-determined manner. Consequently, the court held that Sonos did not indirectly infringe Claim 7 of the 150 Patent.

INVALIDITY

Justice Zinn used the approach outlined in Apotex Inc v Sanofi-Synthelabo Canada Inc, to assess the obviousness of the patent. Google and Sonos generally agreed on the person skilled in the art, common general knowledge, and the inventive concept of the claim. Sonos relied heavily on US Patent No. ("871 Patent”) as prior art to assert that it would have been obvious for a skilled person to make the claimed invention in the 150 Patent. The Court rejected this argument, accepting Google’s submission that the skilled person would not easily come up with the 871 Patent and, therefore, the 150 Patent is not invalid for obviousness.

NEXT STEPS

Google has yet to appeal this decision. A few days prior to the decision, Google announced against Sonos regarding voice control technologies.

The post Federal Court Breaks Silence: Declares Sonos did not Infringe Google's Noise Cancelling Technology Patent appeared first on IPOsgoode.

Michelle Mao is an incoming 2L JD student at Osgoode Hall Law school and an IPilogue Writer.

Litigation is almost always , whether because of the sheer amount of time needed to get a court date, the expensive costs for the client and law firm, or the risks associated with receiving an unfavorable judgement. So why do entities�� (NPEs) act as the exception to the rule? Furthermore, how is litigation a viable option for them to make a profit when litigation seems burdensome for most other types of entities?��

are a special type of entity that specifically purchases patents or patent rights but does not commodify the patent. There are typically academic institutions and private individuals/companies. The first kind, academic institutions, acquire patents to protect the research work of their faculty and researchers while licensing others to use the results of the research produced without commodifying the patent. The second kind, private parties, often use the patents they acquire for profit through damage or settlement awards, or royalties and licensing rights.

NPEs who acquire patents solely for profit (and not commercialization) are also called or ".” They from collecting royalties, licensing transfer patent rights, or resorting to court proceedings to enforce patent rights against infringers. They do not practice, develop, manufacture, or otherwise commercialize the patent. Furthermore, because they do not practice or develop their manufacture, they experience no risk of patent infringement litigation themselves.��

From this description alone, it seems that an NPE’s core business model infringes on the where innovation is simultaneously protected and encouraged. So why are they still allowed to operate?

Despite the obvious tension between the business models of NPEs and IP law, NPEs can exist for the following two reasons. First, it is legal to profit from acquiring patents. Second, NPEs have a functional role in the corporate world— an inventory for .��

Due to the ongoing problem of strategic patent litigation, technology companies have now begun to even at times utilizing the actions of NPEs to evaluate the strength or profitability of their patents should they choose to develop them. For example, a patent that is rejected by an NPE for purchase may implicitly tell companies that their patent is not strong or not seen to be in line with market trends. This, however, can still permanently shift and alter the values in which patents are developed. Previously, patents were developed due to a new technological innovation or to address a technological need. While profit was still a factor for developers when registering their patents, decisions around profitability were made by technology companies and experts. With the rising market influence of NPEs, the voices of technology companies and experts have diminished. Their unique market expertise and knowledge of consumer demand may be pushed aside in favour of “evaluations” by NPEs, based solely on their self-interested criteria of how profitable a patent is, based on their typical avenues of income: royalties, licensing, and litigation.��

With huge technological strides being made in the tech sector in the present day, the conflict between NPE patent trolls and developers will become increasingly contentious. Moving forward, Canadian government authorities should consider becoming involved in balancing the tensions between NPE patent trolls and technological innovation. Public institutions have a direct interest in fostering technological development and innovation for the betterment of communities and the national economy. Currently, aggressive NPEs who increase the time and difficulty of obtaining a patent solely due to profit are a direct obstacle to that interest.��

The post Litigation as a Source of Profit? Non-Practicing Entities and Patent Litigation appeared first on IPOsgoode.

Photo by Bence Boros ()

Tianchu Gao is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

If you are a fan of Google products, you will likely find that some of its home appliances are becoming slightly more cumbersome to use. You may need to individually adjust each speaker in a multi-room audio system instead of using the group volume controller. Some users may have to use a specific app to set up their smart devices and update them. These changes are the result of a recent by the U.S. International Trade Commission which held that Google infringed on five of Sonos’ patents relating to smart speakers.

Sonos is a developer and manufacturer of audio products based in the U.S., best known for its multi-room audio products. According to Sonos, the company began sharing its technology with Google in 2013, when the two started working together. Google was not a competitor at the time, but it soon moved into Sonos’ space, launching its first music streaming device, Chromecast, in 2015 and the Google Home speaker in 2016.��

The lawsuit began in January 2020, with Sonos alleging that Google violated its patents related to audio technologies and used them in products that undercut Sonos. Since then, the parties have been enmeshed in a global with cases across the U.S., Canada, France, Germany, and the Netherlands.

The by the U.S. International Trade Commission came out in August 2021. It determined that Google violated the , which aims to deter unfair competition through prohibiting actions like importing products that infringe on U.S. patents. As a result, the Commission issued an import ban against Google products that infringed Sonos’ patents, mostly manufactured in China. The decision was upheld in the in January.

A New York Times anticipated that the impact of the ruling on Google’s business is likely to be limited. The newer products developed by Google are using different technologies, and Google’s main cash cow, online advertising, remains intact. ��

Yet the conflict between Google and Sonos is important because it reflects the antitrust problems created by the expanding businesses of today’s tech giants. Starting out as a search engine in 1998, Google is now producing a wide range of hardware products including laptops, smartphones, and home devices. Apple and Facebook (now renamed Meta) are also facing similar issues against smaller companies. According to , its lawsuit against Google is meant to “ensure all companies, regardless of size, receive fair compensation for investing in the development of industry leading technology.”

The post Little Guy Fighting Goliath—Sonos’s Victory Against Google in Patent Infringement appeared first on IPOsgoode.

Photo by Comfreak ()

Shawn��Dhue��is an��IPilogue��Writer and a 2L JD Candidate at Osgoode Hall Law School.��

��

The US has started a worldwide complaint about China’s new legal strategy against intellectual property (IP) theft claims. Since the beginning of 2020, four claims of IP theft have gone to Chinese courts. Three of these claims were against some of China’s largest telecom companies: , , and . , one of Sweden’s most prominent tech corporations, brought a fourth claim against , a South Korean telecom company. These claims have ended with the Chinese courts granting the Asian telecom companies anti-suit injunctions against their complainants.

These developments came after Beijing promised to develop a better relationship with the US during their 2020 trade deal talks. Beijing said that it would “.” However, the US is now concerned that Chinese courts will not fulfill these promises.

The Decision that Turned Heads:

In September 2020, the Hubei Province Wuhan Intermediate People’s Court of the People’s Republic of China released the first decision in the four major cases. Xiaomi is the world’s largest smartphone producer, selling millions of devices since 2013. However, Xiaomi has been using a patent by InterDigital Inc. (InterDigital) to produce those devices. InterDigital, based in Delaware, USA, holds multiple patents for digital technology used in smartphones across the world.

When Xiaomi and InterDigital began to sever ties around July 2020, InterDigital for patent infringement. In retaliation, Xiaomi applied for an anti-suit injunction in Wuhan. The Wuhan Court granted Xiaomi an injunction, prohibiting InterDigital from taking Xiaomi to any court. The consequence of breaking this injunction is near $1 million per week for the Delaware-based company. The world, especially the US, was shocked as this decision was the first outcome for an IP theft claim between the US and China. Little did they know that this would become the first of many.

Competing Perspectives

The US is unsurprisingly the leading complainant about China’s legal strategy. In an article describing China’s anti-suit injunctions as a “new legal weapon,” Charles Boustany, Member of the Commission on the Theft of Intellectual Property in the US, states: “.” Importantly, the anti-suit injunction is neither new nor a legal strategy that China has created recently. commonly issue anti-suit injunctions. These injunctions help prevent identical intellectual property thefts in multiple jurisdictions.

Brian Pomper, a partner at Akin Gump Strauss Hauer & Feld LLP, says: “.” The Chinese Embassy in the US has not responded to these comments. Many are now looking to China to respond in the wake of these actions, which conflict with Beijing’s promises mentioned above in the 2020 US-China trade deal. Beijing made these promises on behalf of political trades, speaking on behalf of the Chinese economic market without considering what private entities may do in the future. Chinese courts seem to have different plans in mind to protect the country’s flourishing technology sector.

��Importance

Concluding the war between Xiaomi and InterDigital, the two companies have reached settlements. These settlements come after InterDigital brought claims to courts in and . Both courts agreed that Xiaomi’s anti-suit injunction was inconsistent with the law and . However, these settlements don’t change the outcome in the Wuhan court, nor the outcomes in the three other anti-suit injunction applications in different Chinese courts.

China has always departed from standard Western practices. Nevertheless, anti-suit injunctions are commonly used around the world. Therefore, the question remains of whether the US and UK using anti-suit injunctions are any different from China using them. It is important to recognize that a country may use these injunctions to protect against IP theft claims. However, if it is common in one jurisdiction, it should be allowed in others. The complaints are valid as it is a new strategy. But time is better spent thinking of new legal strategies against China’s “” than trying to ban a whole country from using a typical legal claim.

The post Offence Or Defence? China’s New Legal “Weapon” Against Intellectual Property Theft Claims and The US’ Response appeared first on IPOsgoode.

On March 15, 2021, the Ontario Court of Appeal (the Court), in��Family and Children’s Services of Lanark, Leeds and Grenville v Cooperators General Insurance Company,��, reversed the lower court’s decision that found that Co-operators General Insurance Company (Co-operators) had a duty to defend Family and Children’s Services of Lanark, Leeds and Grenville (FCS) and Laridae Communications Inc. (Laridae) against two claims in relation to a cyber hack.

Laridae was retained by FCS to perform communication and marketing services, including working on FCS’ website. FCS subsequently discovered that its website had been hacked and that a report containing personal information of 285 clients and subjects of FCS’ investigations was disclosed on Facebook without authorization. Both companies were insured by Co-operators and claimed that Co-operators had a duty to defend against the following two claims that arose out of the event:

1. a $75 million class action brought against FCS alleging that FCS was negligent in securing its website; and
2. a third-party claim in that proceeding brought by FCS against Laridae for negligence and breach of contract.

Co-operators denied that it had a duty to defend because its policies excluded claims arising from the distribution of data by means of an internet website. All three parties brought applications to determine the rights that depend on the interpretation of the policies.

The Court disagreed with the lower court’s finding that the matter could not be addressed by way of application, stating that there were no material facts in dispute requiring a trial and that the policy provisions in issue were clear and unambiguous. Upon assessing the issue, the Court found that the substance and true nature of both claims arose from the wrongful appropriation and distribution of confidential personal information on the internet. The Court held that all claims asserted were covered by the clear and unambiguous language of the exclusion clauses, and therefore Co-operators had no duty to defend either claim.

The Court did not waver when faced with FCS and Laridae’s argument that applying the data exclusions would nullify meaningful coverage under the policy. The Court held that the policies clearly stated that Co-operators would not insure against all risks, and therefore, holding the parties to the terms of the agreement, aligned with the reasonable expectations of the parties.

Written by M. Imtiaz Karamat, Osgoode Alumnus and Student-at-Law at Deeth Williams Wall LLP.

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At the beginning of 2020, when the team was first scheduled to compete, compulsory licensing seemed like a fun thought experiment and a great theoretical moot problem about balancing IP rights and public health. It quickly became an eerily relevant issue as the world rapidly shut down and essential medical items like masks, gloves, and ventilators became precious commodities. Doors stayed shut, Wi-Fi capacity limits got tested, and in the wake of the initial disbelief that the world was collectively at war with the most covert of enemies, there was little room to feel disappointment about the cancellation of the competition. As the months wore on, and a new normalcy crystallized, the team got word that the competition was back on, and that the 2020 competitors were invited to return. Two of the team members came back, and a third joined ranks in January of 2021.

The moot organizers pivoted to a Zoom format and accommodated its largest set of teams to date, with 32 schools battling for the title. The first day entailed a virtual welcome ceremony. Moments after the team’s alarm clocks screamed to life at 6:30 am, each member logged into Zoom, sleepy-eyed and afflicted with the most serious cases of bed head. As the organizer scrolled through the competing teams’ slides, it slowly became apparent that Osgoode had miscalculated. Slide after slide passed through the platform, with many a suit and rarely a smile. Then Osgoode’s slide came roaring in with a beaver, a moose, and what appeared to be a team member drinking maple syrup straight from the bottle. Whatever impression they made, the Ozzies quickly made it clear that they meant business.��

The preliminaries were also no laughing matter, as the competition was fierce. Thankfully, Osgoode was blessed with the platinum package for coaching and the preliminaries were passed through with a breeze. As the team advanced on, excitement in the Osgoode community rose. The team entered the final match, buttressed with support from all angles in the Oz community, the IP space, and from their collective friends and family. The online format uniquely allowed all supporters to watch their team in action, and we felt the love. While Osgoode ultimately lost out in the grand final, the opportunity to experience this competition was a big “W”.

To our 2020 team member, Julianna Felendzer, we hope we did you proud. Thanks for helping us secure the invite to the oral rounds!

To our coaches Jennifer Davidson, Stephen Selznick, Any Obando and Giuseppina D’Agostino, we are forever grateful for your dedication and your support, especially when it was just a “hair toss, check your nails” kind of day!

Co-written by Anna Morrish, Alex Dumais, and Karin Kazakevich, 2021 Oxford International Intellectual Property Law Moot Runners Up

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This past Monday, the Federal Court published the Honourable Justice Fuhrer's decision in the matter. We anticipate a full analysis and commentary on the decision on our site next week. But in the meantime, you can read Justice Fuhrer's decision .

The post Decision in "Sim & McBurney v En Vogue Sculptured Nail Systems Inc." appeared first on IPOsgoode.

Although this decision primarily turned on the facts, there are some notable points of interest for infringement, claims construction and expert evidence.

The Invention

Omeprazole decreases gastric acid secretion by inhibiting proton pumps. Thus, omeprezole is useful to treat a variety of conditions associated with low stomach pH such as dyspepsia, peptic ulcer disease and gastroesophageal reflux disease.

The activity of omeprazole was known at the time of patent filing, however, the instability of the compound posed challenges to commercialization. Omeprazole had to be stable under two distinct conditions: (1) when exposed to gastric acid and (2) for storage. Unfortunately, traditional enteric coats, which would provide gastric acid resistance, would also react with the omeprazole core to cause degradation under storage conditions.

AstraZeneca solved the stability conundrum in the ‘693 patent through “an inert sublayer … disposed on said core region” (see e.g. ). By separating the omeprazole core from the enteric layer with a subcoat, degradation could be avoided, permitting stable storage.

The Issue

The Apotex omeprazole formulation also contained a subcoat between the omeprazole core and the enteric coat. However, this subcoat was the product of an in situ reaction between the omeprazole core and the enteric coat. This method for creating a subcoat was not contemplated by the patentee at the time of patent application.

Does the scope of the claims capture products that result from an unanticipated method of production?

Justice Barnes held that for novel product claims, the scope of the claims are not limited to the methods identified or contemplated by the patentee [182]. Furthermore, Justice Barnes rejected the notion that a patentee has any obligation to teach its competitors how to avoid infringement [185]. Therefore, infringement does not require either party to be able to anticipate the infringement prior to the act. Such a legal conclusion is well grounded in the strict liability nature of patent infringement.

Claim Construction

Given that the method of infringement need not be anticipated, infringement in this case hinged on the meaning of “inert” and “disposed upon”. Through the assistance of expert witnesses, Justice Barnes preferred the nuanced approach to construe “inert” to mean the absence of “reactions that adversely affect the functionality of the formulation” [194]. Expert witnesses, however, provided no assistance to the construction of “disposed upon”, as this was not a term of art in the world of the formulator [170]. Absent a clear meaning to a formulator, Justice Barnes held that “disposed upon” does not signify a process limitation [189].

Of general interest, Justice Barnes cautioned against “the danger of relying too heavily on the disclosure as an interpretive guide to claim language”. In the disclosure, the patentee contemplated direct application of the subcoat layer to the omeprazole core. However, this statement in the disclosure cannot be read into the claims as process limitation when there is no language in the claims to support such a limitation [179].

The ‘693 Patent was previously and similarly construed by Justice Rothstein for a unanimous Federal Court of Appeal in Apotex Inc v AB Hassle, , in the context of a PM(NOC) proceeding between the same parties. While PM(NOC) decisions are not binding for subsequent infringement actions, Justice Barnes held that the construction taken by FCA to “carry some persuasive weight”, especially where the issue of construction does not require specialized knowledge [175].

Patent Infringement

There was little dispute that the Apotex formulation contained a subcoat. Rather, the issue of infringement turned on whether that sublayer was continuous or inert. These issues were resolved largely through technical evidence produced by the expert witnesses.

Expert witnesses for both parties provided diametrically opposing opinions on whether there was structural continuity in the subcoat. Justice Barnes preferred the evidence offered by the AstraZeneca witness, suggesting that the subcoat was continuous [342]. Furthermore, given the fact that the subcoat swells in the presence of water, any gaps that appear when the capsule is dry may very well be sealed once the capsule gets wet [312]. AstraZeneca’s witness also produced data that ruled out the likelihood of significant quantities of omeprazole degradants or other reactive compounds in the Apotex subcoat [364].

Justice Barnes took particular note of the fact that Apotex’s experts chose to attack the experimental methodology and limitations of AstraZeneca’s expert, rather than conduct their own independent tests [298]. In particular, Justice Barnes noted that “[a]n argument that other tests or controls could have been used loses much of its strength where a party chooses not to employ those same suggested methods in its own responding analysis to see if the results differ” [361].

This approach to resolving conflicting expert opinion is consistent with the law of burdens of proof and general approach to ascribing weight to evidence. AstraZeneca had both the persuasive burden and evidentiary burden on the issue of infringement. By adducing evidence to the satisfaction of Justice Barnes, AstraZeneca had discharged its evidentiary burden to raise the issue of a continuous subcoat. Whether AstraZeneca had met its persuasive burden depended on the reliability of the evidence and the cogency of the interpretation of the data. Apotex’s decision to challenge the data meant that the scope of the dispute for infringement was on the reliability of the evidence. It is therefore logical that Apotex’s argument would lose considerable force because those attacking experimental methodologies and limitations “should not benefit from any uncertainty that could easily have been dispelled” [348].

Lou Chang is a JD Candidate at Osgoode Hall Law School and a fan of JRR Tolkien.

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Tell me a bit about Lex Machina. Where did the idea for Lex Machina come from and��what has it turned into since the early days of the company?

Lex Machina began as a public interest project at Stanford Law School. A number of big law firms��and technology companies donated a couple of million dollars to what was then called the “IP Litigation��Clearing House,” which Professor Mark Lemley spearheaded to create the first electronic set of patent��litigation analytics and outcomes. After the money was donated and was turned into a public interest��project Lex��Machina spun out of a private venture in 2010,��as so often happens at Stanford when someone says, “Hey I think there might be a business here”.

Unlike traditional legal research that requires top-down control, Lex��Machina provides a novel legal resource called legal analytics. We mine litigation��data and then clean, code, tag, and build meta-datasets. This data then enables��lawyers to make data-driven decisions in their strategy and tactics that they employ for their cases,��transactions, and even for obtaining new clients.

Legal technology has been slow to develop relative to technological��advancements in other industries. Why do you think this is?

The legal services industry organizes itself around precedent and so by nature change is slow. Practicing��law is a very old profession and has been done the same way for a long time. Personally, I think that the��emergence of legal analytics is as big a moment and analogous to the moment when legal research��switched from books to computers.

I like to use the “Moneyball” analogy. Analytics were applied to the Oakland A’s and transformed their��ability to win even though they had a smaller market and payroll. Now, every team employs Moneyball��analytics. The same is true for law as we are able to turn lawyers into Moneyball lawyers. You still��need great legal research and legal reasoning skills but analytics supplements those skills. For example,��let’s say that you are a patent lawyer and your client is suing in Delaware for patent infringement. As a��lawyer you determine that you will have a better chance at winning the case using a jury in��Chicago. Typically, you would do some legal research and use your best legal reasoning to persuade the��judge that there is a basis for transferring your client’s case to Chicago. A Moneyball lawyer is going to��do all that but they will also go into Lex Machina to unpack how that judge has previously treated��motions to transfer in patent cases and extract from the data where that judge’s preferences lie.��Everyone, including judges, have subconscious biases and we at Lex Machina know to the second decimal��point how judges behave. In our example, if the case in Delaware had been assigned to Judge Robinson��and you need to persuade her to move the case to Chicago, you can go into Lex Machina,��push a button, and find the 20 patent cases that have succeeded in motions to transfer under��Judge Robinson. You can then use that data to uncover how best to approach your argument for a��motion to transfer. The data allows you can determine how to speak to Judge Robinson in terms that are more favourable to her, thereby��increasing your odds of winning.

Companies such as LexisNexis and Thomson Reuters have been developing legal��technology for a long time. What can a start-up culture for legal technology offer that��customers might not be able to get from more mainstream legal technology companies?

Just like any industry, big incumbents get big by doing something well. Both LexisNexis and Thomson Reuters provide excellent online legal research environments. They are able to structure their information similar to a law library and train lawyers how to perform legal research using their technology. This strategy has allowed them to become very good at what they do. As startups, however, we are not burdened with that history. We can be nimble and provide services that haven’t yet been done, and try to deliver those services in a saleable market so that we have a successful venture. The rise of e-discovery and the use of algorithms to identify which documents in discovery are relevant to a case was largely driven by small startups. There are also companies like , , and that are now doing analytics around billing data. These services all developed through startups that took a fresh look at existing needs and came up with answers for those needs that had not yet been proposed by the big incumbents. Therefore, just like any industry, there is going to be transformation that is driven by startups who are not afraid to tackle big problems with new approaches.

What is the long-term goal for Lex Machina? Where do you see it in 10 or 20 years?��

We want to bring legal analytics to the law. We have had a great run with our beachhead market of patent litigation. In some respects that was because of luck. If the project at Stanford from which we grew was in a different area of law, it is not clear that it would have provided the same platform for transition into a private sector venture. We have also provided access to data about copyright, trademark, and antitrust, and are now building the Robust Analysts tools for copyright and trademark, which is a platform that we currently provide for patent litigators.

Aside from our IP analytics we have also studied another half a dozen federal subjects. Our focus on federal subjects is largely because we collect our data using Pacer, the federal court reporting system. Whether it is tax, securities, employment law, or another federal subject, we hope next year to move past IP by providing legal analytics to the rest of the federal subjects. In 10 or 20 years, I hope that we are providing analytics for every subject in law, including state law subjects, and that every attorney has his or her specialty empowered with analytics. While there will probably still be those big research incumbents, we hope that there will also be a big legal analytic incumbent called Lex Machina.

Thanks again for meeting with me today, Owen. Is there anything else you would like to add?

Considering that many of your readers are in academia I'd like to make two more points. First, because of our Stanford heritage, we still have a large public interest component to our business. We provide free access to our platform to members of Congress and their staff, to the federal judiciary and their clerks, and to academics and students who are studying IP. We are here to do good and do well, and our public interest program helps us fulfill part of our mission.

Second, I find it interesting that the information about trends in patent litigation is of great interest to academics and journalists. We are glad that we can provide that sort of information. However,��we are going to succeed as a private venture not by looking at those trends but by allowing lawyers to make data-driven decisions and to predict what sort of approaches will affect outcomes and strategies in cases. While trends get a lot of attention in articles, it is the application of analytics and its data to the day-to-day practice of law that holds the most hope in transforming and improving the practice.

Peter Neufeld is the Features Editor of the IPilogue and a J.D. Candidate at Osgoode Hall Law School. Peter met with Owen Byrd when he was��a��Visiting Researcher at Stanford Law School's Codex: The Stanford��Center for Legal Informatics as part of Osgoode's Intellectual Property Law Intensive Program.

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