Tech is All Around: Tech in Litigation
1 October 2018
Author: Sanna Johansson
Enemy or friend? The discussion on how digitalisation and technology affect different areas of legal practice is in full swing, and the nature of litigation is clearly moving in a technology-influenced direction. In the following, we discuss two aspects of technology in relation to litigation.
How Is Technology Visible in Disputes?
Some people argue that digitalisation poses a threat to human work as technology peels away tasks and automation replaces the human element in business, however, others would rather highlight issues relating to data storage, questions of security, and personal integrity in a world where creative innovations offer the possibility to transfer valuable information further away from the organisations into “The Cloud”.
The proponents of technology and digitalisation may argue that there is no threat to human resources or personal integrity, but rather a great opportunity for development and success, as long as we adapt to the technological developments. Furthermore, technology enables more time and money efficient processes. As disputes grow bigger and more complex and concern massive amounts of data, we need tools such as predictive coding to facilitate document analysis and management, and as well as different types of software to manage our cases – just to name a few.
What is certain is that technology is everywhere and part of every dispute. Many disputes arise as a result of legal challenges related to technology – either because regulation is playing catch-up with new technologies or because technological developments are changing the way we think about contracts. In the future, every dispute will involve a technological element and technology will thus play a key role in shaping the future of dispute resolution. Whether we will end up appearing as holograms in virtual court rooms or have AI determine a large part of disputes remains to be seen. However, one thing is for certain: change driven by technology is here to stay.
Intellectual Property Disputes
Another noticeable aspect regarding this topic is the global increase in technology-related intellectual property rights (IPR) disputes. As disputes related to IPR become more frequent and significant in scope, the pressure on specialist tribunals, such as the Patent and Market Court in Sweden and the Market Court in Finland, continues to increase. As these types of disputes often relate, for instance, to the validity or revocation of registered rights (and thus also have an impact on third parties), they are adjudicated by civil courts (instead of e.g. in arbitration). In addition, the trend towards highly specialised courts handling these types of IPR disputes is most likely to continue throughout the EU, the proposed Unified Patent Court (UPC) being one obvious and significant example of this.
Furthermore, another relevant change that follows upon the technological development is litigation within the field of standard essential patents (SEP). By nature, litigation relating to SEP rights entails complex, high-value, and cross-border disputes that also require in-depth assessments, for instance relating to issues regarding competition law, such as the so-called FRAND terms. We are already seeing numerous disputes relating to SEP rights in the telecommunication industry, and we predict that this will continue to spread and also affect several other types of industries in the not-so-distant future.