Troll or Robin Hood? kCura sued for patent infringement by Blackbird Tech

kCura is among a raft of companies being sued for patent infringement by Blackbird Technologies, a U.S law firm said by its founders to enable powerless individual inventors and small companies to monetise their intellectual property, but which has been accused by a U.S technology and ediscovery blog of being a patent troll; a suspicion expressed more privately by others in the ediscovery market.

Not to be confused with the Blackbird Technologies that was acquired by Raytheon in 2014, in its lawsuit against kCura, Blackbird alleges in the United States District Court for the District of Delaware that kCura’s eDiscovery solution Relativity has violated Patent No. 7,809,717, which is a method and system for performing a concept search within large bodies of documents.

While the inventors of Patent 717 are Drs. Orland Hoeber, Xue-Dong Yang and Yiyu Yao – professors in the field of computer science – Blackbird is the owner by assignment of all the rights, title and interest to the ‘717’ patent.

A key feature of Relativity is the concept query, under which analytics match documents that are the closest conceptual match to the term searched for.

The claim alleges that the “defendant has directly infringed one or more of the claims of the ‘717 Patent’…for example by using e-discovery systems (e.g., Relativity v9.3 in conjunction with a computer system) to perform a concept search with integrated keyword search.”

It adds: “Defendant has directly infringed claims 16 and 25, for example, by making, using, importing, selling and/or offering to sell a computer system called an “appliance” by Defendant, loaded with e-discovery software (e.g., Relativity v9.3) capable of performing a concept search with integrated keyword search.”

kCura is also accused of encouraging its hosting partners to infringe these patents.

Blackbird has asked the court to judge that patent 717 is valid and enforceable and that kCura has infringed it and must pay damages

On 7 June it also filed claims against Advanced Discovery; EvD; System One Holdings; DiscoveryReady; LDiscovery; Innovative Discovery; Xact Data Services; UnitedLex; and TransPerfect, following a raft of further claims filed on 5 May.

The fact that there are so many claims, and the fact that the patent is on assignment from the original patent holders, is consistent with a patent troll modus operandi. The Project Counsel Group on June 9 published a blog by founder Gregory P. Bufithis called “Patent trolls attack e-discovery companies. It’s deja vu…all over again.” However, a notable exception in this claim is that patent trolls usually file suit in the Eastern District of Texas rather than Delaware, according to one senior eDiscovery supplier.

kCura has issued a statement to its partners saying that the case has no merit and told Legal IT Insider: “A series of complaints were filed against kCura and several Relativity partners by Blackbird Tech LLC – a firm that buys patents with the goal of entering into litigation, rather than developing their own technology – related to a U.S. patent. However, based on our legal team’s initial review, we believe this case has no merit. We will vigorously defend ourselves and our channel partners named in the case against these claims.”

However, Blackbird’s president and CEO Wendy Verlander, formerly a partner at WilmerHale, told Legal IT Insider: “We have been formed from the best litigation departments in the country to level the playing field for independent inventors in small companies. There are really few opportunities to make money from small inventions.

“The secondary market has been demonised by a campaign by large companies trying to avoid infringement but we’re trying to help the smaller players.”