Peer to Peer Magazine

70 PEER TO PEER: THE QUARTERLY MAGAZINE OF ILTA | FALL 2016 FEATURES An Asset to the Enterprise: How Legal Departments Can Demonstrate More Value Establish Proactive Patent Enforcement Strategies Many companies seem to oscillate between accumulating a stockpile of patents as part of a corporate initiative to drive innovation while also culling the portfolio for cost savings. To help balance these two extremes and increase the value derived, law departments can formalize the company's approach to intellectual property review and enforcement. If you haven't already, establish a patent review program within your department. As part of that effort, develop an evidence of use (EOU) workflow to help identify likely infringement, determine the scope of the problem and assess potential damage before embarking on a patent assertion campaign. One of the outcomes of an EOU program is the ability to map claim elements to specific features of competitors' products and services. EOU activities can also help legal departments: » Dra higher quality patent applications » Identify potentially advantageous intellectual property acquisitions » Forecast future revenue potential » Provide pricing guidance » Assess potential areas of weakness to inform patent litigation strategies and conduct litigation with greater cost-effectiveness With the help of technology, you can also codify and create reports on individual claim issues, identify anomalies and automatically populate Indigent Defense Services (IDS) forms. Leverage Expertise and Technology Start with a single maer or family of similar maers, then build on what you learn to standardize and streamline your e-discovery workflow across multiple maers. If a skill set does not exist in-house, consider bringing in outside help to analyze failures, implement more systematic quality control and perhaps create a standardized review manual and conduct training. Gather intelligence and metrics to pinpoint successes and failures so you can refine your litigation processes accordingly. The return on investment from such an engagement can be enormous. For e-discovery, the right technology is crucial. Technology rarely succeeds on its own when it comes to gaining control over large, complex projects. Experienced consultants will likely tell you that advanced culling technologies work best in tandem with intelligence gathering by trained specialists early in the discovery process. The goal is to identify "hot" or responsive documents and non-responsive documents in the first day or two of collection to validate search terms and culling strategies. Then apply that intelligence to the data set and reduce it accordingly before moving on to processing, hosting and review — and before commiing to expensive advanced technologies like technology-assisted review (TAR). Gather and Analyze Data The common thread in legal departments seeking new ways to contribute value and achieve cost-savings is in collecting and compiling data, isolating key metrics and analyzing trends that can help you predict results and refine processes. With the influx of data and new tools, law departments should embrace a new philosophy around data analysis. Are you tracking your overall spend versus budget on a quarterly basis? When the legal department does not meet its budgets, it should have the ability to analyze, understand and report on the reasons. You could use the data you gather to hold outside counsel Develop an evidence of use (EOU) workflow to help identify likely infringement, determine the scope of the problem and assess potential damage.

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