How Crowdsourcing Could Revolutionize Patent-Busting

Ricky James Robertson knew very little about touch-screen personal navigation devices when he first began reviewing patents on them back in November of last year. He was surfing Slashdot when he came across a launch announcement for a company called Article One Partners; the group offered awards for as much as $50,000 to individuals who could invalidate specific patents that were currently under litigation. The 53-year-old Robertson is a 30-year veteran of the aerospace industry with a master’s degree in aerospace engineering from MIT; he currently works for a small Huntsville, Ala., engineering consulting firm, but he soon found himself poring over navigation device patents.

Every year, hundreds of companies are sued for allegedly infringing patents. The companies can lose millions of dollars if they’re found to have infringed, so there is incentive to show that the accuser’s patent is invalid. This is typically done by demonstrating that the same patent had already been submitted by someone else and therefore passed the waiting period necessary before a patent becomes publicly available. However, invalidating a patent is something like searching for a needle in a haystack — it often requires someone who has a very specific field knowledge and is willing to search through hundreds of documents to find an invalidating piece of evidence.

Rather than relying on its own staff to find the needle, Article One Partners opens up the process to the wisdom of the crowd by offering large monetary awards to those that can discover prior art — that is, public information relevant to a patent’s claims of originality.

Busting Patents

Robertson followed the Slashdot link to Article One Partners’ website, where he found a list of about 20 patents currently under litigation that the company thought might be invalid. “I went for the one that was basically the easiest to attack,” he said. “And one of the ones that I had picked was a patent for Garmin, the people who make these GPS receivers who were being sued by an inventor who back in the mid ’80s said he had invented the idea of the touch-screen keyboard. And so of all the patents they were accepting entries on, that was the best one for me because it was a technology one and it seemed like it came from a single inventor.”

To bust the patent, he went to Google Patent Search and began plugging in what he considered relevant search terms. Of the hundreds of patents he reviewed, he chose a few dozen he considered as possible prior art and submitted the necessary forms and attachments over to Article One Partners. Article One then reviewed the documents to determine whether they contained enough evidence to make invalidation likely.

The company periodically releases a new set of patents to the community (all those who help find prior art are considered “advisers”) and continues accepting submissions for a specific waiting period. In February, the company announced that Robertson was one of two who had found relevant prior art for this particular patent. Because he had been first to submit, he received $35,000 while the other person received $15,000.

Article One

Cheryl Milone, the founder of Article One Partners, has worked in patent law for approximately 12 years and first developed the crowdsourcing model about a decade ago. She began working on a tech startup called BountyQuest in 1998 that used a very similar model to Article One Partners, but she said the concept was ahead of its time.

“The intuitive nature that we now have for communities and crowdsourcing didn’t exist yet,” she told me, and when the tech bubble burst, the company went with it. “At that time, my job was to build up interest by third party companies, which was very difficult. But when I launched Article One Partners, my first week of the launch I had multiple calls from Fortune 100 companies asking me about our services. It’s an amazing thing what 10 years does. It’s evidence of what recognition there is now of the crowdsourcing model.”

But unlike that 1998 venture, Article One Partners doesn’t rely solely on third party companies — usually the ones being sued for patent infringement — to sponsor the crowdsourced studies. Milone knew that to build up a loyal and strong community of advisers she would need to consistently release new patents to be invalidated and offer a standard reward for the discovery of prior art. This would likely be impossible if the company had to wait for third parties to sign on. So even though the company is open to third party sponsorship and will allow companies to license the information it gathers, it also monetizes its findings by making public stock trades based on whether it was able to invalidate or validate a patent.

I asked Milone how the company goes about identifying patents to target.

“There’s a number of ways that cases come to our attention,” she said. “One is that we follow the news and look at every newly filed piece of litigation and the companies involved. Another way that is more interesting is I’ll get an email from our advisers, saying ‘look at this case, why aren’t we in it?’ The advisers are giving me advantages of looking for specific studies. I feel like they’re an integral part of our company and I value their input.”

Panning for Gold

For Robertson, the search for prior art on these patents has nearly become an addiction; he compared the task to panning for gold, sifting through millions of grains of sand.

“You just keep digging down into the sand, and you keep coming up with another handful,” he said, in hopes of finding a single nugget. “Right now, I’m focusing on a litigation against Sony and their Blue Ray disks. There’s a Korean company that is saying they came up with an error correction scheme that Sony is using on their disks. It turns out it’s sort of like the touch-pad thing — there are hundreds of examples of touch-screen keypads, there are also hundreds of examples of people using error correction programs.

“So I’ve got a list of 50 or 60 of them I’m trying to go through to figure out which of the 50 or 60 I’ve identified are the best candidates to go up against this Korean patent that’s under litigation. My goal is to have that done by the end of March and then Article One will put another group up and I’ll go off on another goose chase.”

I asked Robertson about the motivation for becoming an active adviser for Article One Partners and he admitted that it wouldn’t be difficult to mimic his strategy of simply plugging in search terms to free patent search engines. James didn’t know whether his first win was an isolated, lucky incident — helped by the fact that he stumbled upon the website on the day it launched — or whether he would be able to repeat his success regularly.

For now, he said, he was addicted to the challenge — he said he spent anywhere from 80 to 120 hours working on the touch-screen patent — but that the contest could quickly lose its shine if it became nearly impossible to win. “You have to do it as a hobby because you like it,” he said. “But for you to keep doing it, you really need more motivation, and the award is that. From my standpoint, if I could win two of these a year then that’s basically my salary right there.”

Reforming the Patent System

Milone said that to help provide more incentive to advisers — even ones who didn’t win — Article One Partners would develop a profit-sharing model for all participants. But when I brought this up to James, he noted that even if the company only brought in $1 million in profit then that likely wouldn’t result in more than $1,000 per person if there were 50 regular advisers.

Though Article One Partners can make educated guesses as to whether a patent is invalid based on prior art, the company can’t legally invalidate a patent on its own. This means that it will constantly be handing out large monetary awards with the possibility of the validity of these patents being held up in court. But Milone emphasized to me that the company isn’t just about patent-busting, but also improving the efficiency of the patent system as a whole — many consider the industry in dire need of reform.

“We work with the advisers, and get to a point where we believe we have an invalidity finding, or we get to the point where we believe that the community has spoken, the quality of art is not there,” she said.

Of course for the advisers to win the monetary award, prior art has to be demonstrated, and so perhaps their goals aren’t as pure. Regardless, the company sent out a press release= on March 9 issuing an opinion that two patents for the drugs Boniva and Protonix were, in fact, valid.

“Article One is announcing only its own opinion based on its analysis of the prior art for purposes of determining winners to its Patent Studies,” the release states. But the following sentence accents the amount of trust the company has put in its community advisers in finding the needle in the proverbial haystack: “A court or the Patent Office may disagree with Article One’s opinion.”

What do you think about Article One’s work? Can crowdsourcing help reduce the friction in the patent process? Share your thoughts in the comments below.

Simon Owens is a former newspaper journalist and an associate editor for MediaShift. He currently works as an online analyst for New Media Strategies. You can read more of his writing at his blog or contact him at simon[.]bloggasm [at] gmail.com.