Search Method in E-Discovery: How Rule 26\u27s Silence Poses a Risk of Sanctions to Attorneys and Increases the Cost of Litigation

The 2006 Amendments to the Federal Rules of Civil Procedure are the first codified references in the FRCP to electronic discovery. However, the lack of comprehensive rules in this area provides opportunities for attorneys to leverage search terms as a weapon, primarily to wear out opponents financially. Disagreement on search terms used to produce documents can prolong litigation. Complicated Boolearn search tems can be difficult to run. Other search methods, such as natural language search, cannot provide efficient and accurate results. The cost to run complicated searches is high, and the lack of rules addressing search terms in the FRCP leaves parties at risk of sanctions. In addition, since electronic information may be extracted from third parties\u27 servers, disagreement on search terms may lead to opponents using data extracted from third parties\u27 as evidence of a failure to produce, and seeking sanctions. The low efficacy of search methods currently used also poses a risk of under-producing to attorneys. This article proposes two amendments to FRCP 26. First, FRCP 26 should mandate an agreement on search methodology and storage spaces to be searched. Second, FRCP 26 should allow electronic discovery production certification as complete and accurate using the agreed upon search method in agreed upon storage spaces

Portfolio Evaluation of Academic Patent: A Proposal to Brazil

In the current context of scarce financial resources, technology transfer offices are pressured to find ways to increase revenues through technology transfers or reduce expenses with their portfolio of technologies, especially patents. The Patent assessment seeks to detect the market potential of patents for transfer through licensing, abandonment, or maintenance. In this context, the objective of this study is to validate the leading indicators used in the patent evaluation to develop a framework for evaluating academic patent portfolio in the Brazilian context. For this, we used mapping and analysis methods of the current models besides focus group consultations, exploratory factorial analysis, and Analytical Hierarchy Process (AHP) to validate the indicators. The results show that seven factors are determinant in the evaluation of academic patents, having positive implications for the management of Intellectual Property since technology transfer decision-makers can use the factors and their identified weights as value indicators to evaluate patents with the most significant market potential

Patent Troll: The Brewing Storm of Patent Reform in the United States of America, 15 J. Marshall Rev. Intell. Prop. L. 63 (2015)

“Patent trolls” have been a problem in the U.S. for many years, creating a storm of patent reform in all three branches of the U.S. government. The modus operandi of these companies (known as non-practicing entities “NPEs” or Patent Assertion Entities “PAEs”) is to acquire patents with no intention of practicing the invention or developing their products and with the sole purpose of licensing them aggressively or instituting lawsuits against infringers. This practice has been criticized as being anti-competitive as it curbs economic growth and technological development and stifles competition. The U.S. Congress’ first attempt to control the patent troll crisis was the passing of the America Invents Act in 2011. However, the need to address the explosion of patent litigation initiated by NPEs in America gave birth to the Innovation Act in February 2015 and the Protecting American Talent and Entrepreneurship (PATENT) Act in April 2015, both of which are currently pending. The present paper aims to study the implications of the various attempts of the United States to combat patent trolls, as dealt herein

SciTech News Volume 71, No. 2 (2017)

Columns and Reports From the Editor 3 Division News Science-Technology Division 5 Chemistry Division 8 Engineering Division 9 Aerospace Section of the Engineering Division 12 Architecture, Building Engineering, Construction and Design Section of the Engineering Division 14 Reviews Sci-Tech Book News Reviews 16 Advertisements IEEE

Trial by Numbers

This is the final version of the article. Freely available from the publisher via the link in this record.Legal cases often require jurors to use numerical information. They may need to evaluate the meaning of specific numbers, such as the probability of match between a suspect and a DNA sample, or they may need to arrive at a sound numerical judgment, such as a money damage award. Thus, it is important to know how jurors understand numerical information, and what steps can be taken to increase juror comprehension and appropriate application of numerical evidence. In this Article, we examine two types of juror decisions involving numbers––decisions in which jurors must convert numbers into meaning (such as by understanding numerical evidence in order to determine guilt or liability), and decisions in which jurors must convert meaning into numbers (such as by understanding qualitative evidence and converting this into a numerical damage award amount). In each of these areas we analyze legal cases and research to examine areas in which dealing with numbers leads to sound or sub-optimal decision making in jurors. We then examine psychological theory and research on numerical decision making to understand how informed, fair, and consistent juror decision making about numbers can be promoted. We conclude that what is often most important is juror understanding of the meaning of numbers in context rather than technically precise numerical ability, supporting the role of the lay jury. We also suggest how to improve juror understanding, so that jury decisions better reflect considered community judgment.Preparation of this Article was supported in part by the Martha E. Foulk Fellowship awarded to Rebecca K. Helm, by National Science Foundation award SES-1536238: “Quantitative Judgments in Law: Studies of Damage Award Decision Making” to Valerie P. Hans and Valerie F. Reyna, by a grant from Cornell University’s Institute for Social Sciences to Valerie P. Hans and Valerie F. Reyna, and by National Institute of Health (National Institute of Nursing Research) award RO1NR014368-01 to Valerie F. Reyna

Patent litigation settlement in Germany - why parties settle during trial

This paper looks at the decision to settle patent litigation in Germany from a new angle by focusing on detailed data on within-trial actions and motivations by plain- tiff, defendant and the courts. Using a new dataset covering about 80% of all patent litigation cases in Germany between 2000 and 2008 we estimate the likelihood of within-trial settlement. We find that the within-trial settlement decision is to some degree driven by the proceedings that change the pre-trial setting of the negotia-This paper looks at the decision to settle patent litigation in Germany from a new angle by focusing on detailed data on within-trial actions and motivations by plain- tiff, defendant and the courts. Using a new dataset covering about 80% of all patent litigation cases in Germany between 2000 and 2008 we estimate the likelihood of within-trial settlement. We find that the within-trial settlement decision is to some degree driven by the proceedings that change the pre-trial setting of the negotia- tions in terms of information and stakes and make previously refused settlement a new option. Additionally, firm-specific stakes as measured by the relation of the involved parties to the disputed patent as well as firm-specific strategies are found to affect the general willingness to settle after the filing of a court case. The results suggest that pre-trial failure of settlement negotiations can to some extent be offset by within-trial settlement through efforts made by court and involved parties, but that the disposition to settle is to a larger degree determined by firm-specific stakes and strategies in the case

Removing the Troll from the Thicket: The Case for Enhancing Patent Maintenance Fees in Relation to the Size of a Patent Owner\u27s Patent Portfolio

This Article proposes a novel solution to part of the problem that large patent portfolios can cause. Both so-called patent trolls and firms that commercialize the patents that they own can accumulate and then abuse large patent portfolios, even if most of the patents in the portfolio are of little value. Instead of suggesting reforms to better determine the value and boundaries of individual patents, as many others have already done, this Article proposes that the U.S. Patent and Trademark Office (PTO) multiply the amount owed to keep a patent in force (patent maintenance fees) based on the size of a patent holder\u27s overall patent portfolio. Patent owners themselves will primarily benefit from this reform, as they will have an incentive to determine the value of their patents and to let lapse those patents that are of low value. A second benefit is that it will require patent owners to disclose their practiced and non-practiced patents. The reform proposed in this Article helps alleviate problems in software and high-technology patenting without significant negative effect in other industries, such as pharmaceuticals or biotechnology. It is simple, and the PTO can easily adopt it, or Congress can enact it