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Predictive Coding war breaks out in US ediscovery sector

It's cat-among-the-pigeons time in the US ediscovery market following last week's announcement that they had secured a patent on their iterative, computer-assisted document analysis and review technology and workflow which lies at the heart of their 'predictive coding' ediscovery software. Here is the original Recommind announcement followed by the reactions we have received so far…

Recommind (today) announced that the US Patent Office has issued the company Patent No. 7,933,859 covering systems and methods for iterative computer-assisted document analysis and review. This patent gives Recommind, its customers and its partners exclusive rights to use, host and sell systems and processes for iterative, computer-expedited document review.

This announcement also marks the first installation of an extensive set of patents pending that provide even more comprehensive coverage around computer-assisted document review and associated processes. This intellectual property will solidify Recommind‘s leadership in advanced ediscovery, compliance, records management and information governance processes and capabilities for years to come. Between the original patent and the latest filings, Recommind now holds a commanding position in the fast-growing ediscovery market, recently projected to reach $1.5B by 20131.

Developed in collaboration with some of the world's largest enterprises and law firms, Recommind's Predictive Coding technology and workflow have transformed the legal industry by accelerating the most expensive phase of ediscovery, document review. Traditional ediscovery software relies on linear review, a tedious, expensive and error-prone process in which teams of contract attorneys review hundreds of thousands of documents one at a time. With a small amount of information from a knowledgeable attorney, Predictive Coding uses machine learning to categorize and prioritize any document set faster, more accurately and more defensibly than contract attorneys, no matter how much data is involved.

“There is no longer any doubt that Predictive Coding is the future of ediscovery,” said Recommind CEO Robert Tennant. “Linear review is already impractical in many cases – and soon it will be impossible – but even the smallest cases can be handled more inexpensively and accurately with computer assistance. Only Recommind's patented, iterative, computer-assisted approach can bend the cost curve of document review. Its superiority will only become more evident as corporate data volumes continue to rise. Predictive Coding puts our customers and partners right where the industry is headed, and there‘s much more to come. This patent is just the first of many that will cement Recommind's leadership of the advanced ediscovery market.

Here is Equivio's response… Last week, Recommind issued a press announcement regarding a patent that they have received in the area of predictive coding. The Recommind announcement includes the following statement: “This patent gives Recommind, its customers and its partners exclusive rights to use, host and sell systems and processes for iterative, computer-expedited document review.” The claim to exclusivity, together with thinly veiled threats to require users and vendors of predictive coding applications to license the Recommind technology, are liable to create considerable confusion in the industry. The objective of this email, which we are sending to users and potential users of Equivio Relevance, is to clarify the issues and possible confusion surrounding the Recommind announcement.
Over the past three weeks, since it was approved, we have studied the Recommind patent in depth.  We can assure you that the patent contains nothing that would inhibit, in any way, the use of Equivio software. From the point of view of our customers and prospective customers, it's business as usual.
Recommind's  patent covers a very specific technique, within the predictive coding arena, for a very specific scenario. Recommind's original request was in fact very broad, but the patent examiner rejected this request, and confined the patent to a particular threshold mechanism in a rolling loads scenario. Bottom line – other techniques for predictive coding are legitimate, and there are many different approaches available in the industry.
Indeed, at the time of Recommind's filing, in May 2010, there were many vendors actively offering predictive coding applications in the ediscovery market. This was clear to anyone attending last year's LegalTech New York conference in February 2010 or to anyone following the industrial and academic work at TREC 2009 and 2010. In their 2010 survey report on predictive coding vendors, the eDiscovery Institute lists 11 predictive coding providers. In addition to Equivio and Recommind, the companies surveyed included Capital Legal Solutions, Catalyst, FTI Technology, InterLegis, Kroll Ontrack, Valora and Xerox.  
Furthermore, a number of the industry's predictive coding vendors filed patents in the predictive coding area well prior to Recommind's patent. Equivio, for example, has a number of pending patent applications on predictive coding with filing dates that pre-date the Recommind filing.
I would also like to add that the term “predictive coding” can be used freely by users and vendors in the ediscovery space. In addition to the above patent, Recommind had tried to trademark the term “predictive coding”. However, this request was rejected last month by the USPTO due to the fact that “predictive coding” is simply a descriptive term. As people are aware, predictive coding was widely used in the industry well before Recommind filed their request.
We welcome competition with the other predictive coding vendors. Competition drives the market forward. Competition creates choice. Competition is good for customers and good for the industry. By way of contrast, Recommind's hollow scare tactics and disingenuous claims to exclusivity seek to reduce and even eradicate competition. We say: let's compete on merit. Let the products do the talking, and may the best product win.

And here is OrcaTec's response… OrcaTec, creators of the OrcaTec Document Decisioning Suite, yesterday posted on their website a rebuttal to a competitor's claim that it had “patented predictive coding,” a technology used in ediscovery, risk management, and elsewhere. OrcaTec stated that the patent is instead very specific, and unlikely to impact the ability of any other ediscovery provider to continue to offer predictive coding.
OrcaTec CTO Herbert L. Roitblat examined both the new patent and the June 8 press release entitled “Recommind Patents Predictive Coding.” His determination, as presented on OrcaTec's website, is that the press release is a “gross exaggeration and unsupported by the details of the patent (No. 7,933,859) or the history of predictive coding.”
“The press release for this patent created a tremendous reaction in the legal community,” said Roitblat. “Suddenly, law firms and corporations were questioning whether this very acceptable technology was something that we and other ediscovery providers could use anymore without paying royalties. We at OrcaTec knew that our predictive coding technology was far beyond the scope of this patent, but the exaggeration in the headline of the press release was confusing the marketplace. We felt we needed to set the record straight.”
The full text of the OrcaTec response “Who Owns Predictive Coding? Press Release Stretches the Truth about One Companys Claim” can be found at
Roitblat's statement on the OrcaTec website goes on to say that the patent “covers a very specific, very narrow approach to predictive coding” and that there is “plenty of room for other approaches to predictive coding, including the approach used by OrcaTec.” Nothing in the patent, he said, “would preclude OrcaTec or any other service provider from offering predictive coding services in ediscovery or any other area. Grandiose claims like those in the Recommind press release indicate either a profound lack of understanding of just what is covered by the patent, or are a deliberate attempt to obfuscate the issues in the industry. Attorneys involved in ediscovery look to their service providers to provide open, honest and effective processes. They are not well served by unnecessary hyperbole.”