By David Enzminger and Kristopher Dawes and Edgar Martinez of O'Melveny & Myers LLP
David Enzminger, Kristopher Dawes, and Edgar Martinez are members of O'Melveny & Myers, LLP's Intellectual Property and Technology practice group. Mr. Enzminger is a partner based in Los Angeles, California. Mr. Dawes and Mr. Martinez, counsel and associate respectively, are both based in Newport Beach, California.
More and more, consumer product manufacturers and vendors are incorporating third-party product reviews and customer comments into their websites. These increasingly- common practices are important tools in effective marketing. But, if they are implemented carelessly, a company may be faced during patent litigation with an evidentiary finding that it has adoptively admitted the truth of statements that it never created, verified, or approved. This creates a tension between the benefits of using third party statements on a company’s website and the potential drawbacks of being bound by that content at trial.
Given (i) the rise of the Internet as a key marketing tool and (ii) the lack of closely analogous contexts, courts have yet to thoroughly analyze adoptive admissions on a company’s website. The practices of quoting and linking to third party articles and allowing consumers to post comments are, however, growing in popularity, and patentee plaintiffs in litigation are beginning to take advantage of them.&nb...