French for "I have been replaced by a computer" is a phrase that you are going to hear more and more in law firms. Not really, since I can't imagine anyone at a law firm using such a sweet portmanteau. (Credit given to my good friend M.Cabrera Esq. for coining the term)
Regardless, what you will hear is younger associates griping about how they are unable to make their hours in light of the rapid adoption of Predictive Coding in document production. If you want to know why computers are going to start eating your lunch, you can check here.
For those with an aversion to clicking on the Wall Street Journal, it basically summarizes two recent civil cases where predictive coding (that is, computer sorting of documents for discovery based on relevancy of content) were allowed. Importantly, these permissions were given over the objection of opposing counsel. So the gates are wide open to our new robot masters.
Super, what does this mean for budding IP attorneys? Well, document discovery in IP litigation (especially in the pharma area ) was/is pointlessly time consuming. While it will probably still be necessary for some IP specialists (read: doc reviewers with a scientific background) to review large reams of data, it is likely that the time of the 4 and 5 room discovery teams is coming to a close. This means even less demand for specific practice area qualifications (the Maw grinds slow and exceedingly fine) . While this won't happen over night, it most likely will happen in the next few years.
I am reminded of a document review in which I participated, where most of my time was spent sifting through bills of sales looking to see if the technology in question was "on sale" prior to the 1 year date. Most of the documents I was looking at were internal order forms. I quickly realized these were pointless, even though they had some of the "core" keywords plastered all over them.
I imagine that predictive coding will allow case managers to make broad sweeps of this type of relevant (but not really relevant) data prior to bumping things up a step in the food chain.
It occurs to me that another place where Cybercoders (wouldn't that make a great Kids TV show...no) could come in handy is the new Inter-Partes Procedures instituted in the AIA. Limited discovery is now allowed. Normally, this "limited" discovery would be limited by the cost and time involved. However, with the use of Cybercoders, you could access huge amounts of data for minimal cost. I would wager that more and more Re-Exams are going to employ predictive coding as part of there opening gambits.
Where I think human IP-based doc coders will still have the edge is searching for "best mode". It is incredibly difficult for a computer to determine if a lab notebook or result table is disclosing the best mode for carrying out the disclosure. Furthermore, IP coders are probably still going to be tasked with searching for deficiencies of enablement, or documents that purport to show that the invention failed to clear a statutory bar.
Unfortunately for Human IP Coders, Congress Passed the AIA with a specific section that minimizes the importance of both "Best Mode" and "Enabling Disclosures" in invalidating a patent. Never fear, when tireless thinking machines drop the ball, Congress can recover that fumble and spike it on your career.
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