Winning
a
gold
medal
is
hard.
Repeating
as
gold
medalists
is
even
harder.
At
the
2012
Summer
Olympics
in
London,
the
eight
women
rowing
for
the
United
States,
as
well
as
their
coxswain,
were
heavy
favorites
to
reprise
their
winning
ways
from
Beijing
four
years
earlier.
And
repeat
they
did,
in
a
start-to-finish
win
by
half
a
boat
length
over
the
silver
medalist
Canadiens.
It
was
such
a
convincing
win
that
the
cox,
Mary
Whipple,
later
said
that
she
was
tempted
during
the
last
250
meters
to
just
stay
quiet
and
“soak
it
in,”
at
least
before
she
remembered
that
it
was
her
job
to
let
the
rowers
know
how
much
more
of
the
race
remained.
I
confess
that
rowing
is
on
my
mind,
as
my
rowing
club
plans
to
open
the
2026
season
this
weekend.
Also
on
my
mind
is
a
litigation
finance
event
I
attended
at
NYU
Law
recently,
which
featured
a
full-day’s
worth
of
interesting
conversation
about
where
we
are
in
terms
of
litigation
finance
and
today’s
legal
ecosystem.
Taken
together,
I
think
I
may
have
stumbled
on
a
useful
way
of
thinking
about
one
of
the
critical
questions
regarding
third-party
litigation
funding
of
IP
disputes,
the
question
of
“control.”
To
start,
some
context
on
the
role
of
the
cox
in
an
“eight”
might
be
helpful.
While
the
boat
carries
eight
rowers,
each
sitting
in
a
different
“seat”
with
a
defined
role,
it
also
has
a
coxswain,
or
cox.
It
is
the
job
of
the
cox
to
help
steer
the
boat
—
which
is
a
monstrosity
at
over
60
feet
long
and
over
200
lbs.,
even
as
it
is
just
two
feet
wide
or
less
—
as
well
as
to
help
the
crew
pace
themselves
over
the
2,000
meters
of
a
typical
rowing
race.
The
cox
does
the
latter
by
making
“calls,”
such
as
to
increase
the
stroke
rate,
or
by
sharing
how
much
distance
remains.
In
between,
the
cox
will
often
exhort
the
crew,
including
by
using
colorful
and
emotional
language,
in
the
hopes
of
squeezing
every
bit
of
power
and
endurance
from
each
seat
in
the
pursuit
of
victory.
You
can
think
of
the
cox
as
a
coach
in
the
boat,
if
that
helps.
It
is
a
critical
role,
but
just
one
of
many
critical
roles
that
must
be
played
at
the
highest
level
in
order
to
achieve
Olympic
glory.
Put
simply,
one
can
put
together
a
gold-medal
performance
as
the
cox,
but
if
the
crew
is
not
to
standard,
or
if
the
equipment
such
as
the
boat
or
oars
are
faulty,
or
even
if
the
conditions
of
the
race
don’t
favor
the
race
plan
used,
the
results
can
turn
out
a
lot
worse
than
anticipated.
And
what
is
true
of
the
cox
in
an
Olympic
race
is
often
true
of
a
funder
in
a
high-stakes
IP
dispute.
Let’s
complete
the
proposed
analogy
between
an
Olympic
eight
race
and
a
funded
IP
dispute
before
getting
into
how
it
may
address
the
question
of
control.
If
we
submit
that
the
funder
is
like
the
cox,
I
would
argue
that
the
ultimate
claim
holder
is
like
the
institution
in
whose
name
the
boat
is
rowing.
Their
name
is
behind
the
effort,
and
they
stand
to
gain
from
a
successful
result,
but
a
lot
of
what
leads
to
that
successful
result
is
work
done
by
others,
or
tied
to
the
strength
of
their
“equipment,”
or
legal
assets
such
as
their
patents.
The
rowers
themselves
are
the
equivalent
of
the
legal
team,
whose
consistent
and
effective
effort
over
the
course
of
the
race
or
dispute
is
essential
to
a
positive
result.
Just
as
the
eight
will
feature
rowers
with
different
roles,
so
too
the
legal
teams
in
an
IP
dispute
will
have
lawyers
performing
different
roles,
from
lead
trial
counsel
down
to
the
most
junior
associate
on
the
team.
And
what
about
the
funder’s
investors?
They
are
similar
to
team
sponsors,
or
college
boosters,
who
help
provide
the
backing
that
allows
the
team
to
do
what
it
does
but
are
often
far
removed
from
the
actual
deployment
of
the
capital
—
by
design.
At
bottom,
as
with
any
competitive
endeavor,
winning
—
on
either
the
legal
or
rowing
front
—
requires
concerted
teamwork
and
resolute
focus
on
achieving
victory
from
the
first
team
practice
or
meeting
until
the
crossing
of
the
finish
line
in
the
Olympic
final
or
its
legal
equivalent. As
well
as
the
money
to
get
there,
of
course.
With
our
analogy
complete,
let’s
turn
back
to
the
cox
and
the
question
of
control.
Does
the
cox
“control”
the
boat
—
or
in
our
analogy
does
the
funder
control
the
claim?
I
submit
that
the
answer
is
a
subjective
one.
If
I
were
representing
a
collegiate
cox
prospect
trying
to
negotiate
an
athletics
scholarship
in
exchange
for
a
commitment
to
a
powerhouse
rowing
program,
the
answer
would
be
definitely.
I
would
argue
that
keeping
the
boat
on
course,
motivating
the
crew
in
the
maelstrom
of
a
race,
and
executing
on
the
race
plan
is
essential
to
getting
to
the
desired
outcome.
And
on
the
flip
side,
if
I
were
one
of
the
rowers,
or
even
the
team
owner
asked
to
give
the
cox
a
raise,
I
might
say
that
while
the
cox
has
an
important
job
to
do,
it
is
a
job
that
is
more
fungible
—
and
that
nothing
the
cox
is
doing
amounts
to
control
over
the
boat,
especially
in
light
of
the
work
that
the
rowers
or
equipment
are
doing
in
the
water.
Good
arguments
exist
on
both
sides
of
the
question,
with
the
true
answer
dependent
on
one’s
perspective
and
motivations.
As
it
is
with
the
cox,
so
too
is
it
with
the
funder
control
debate.
To
those
wanting
to
paint
the
funder
as
having
control,
the
argument
is
simple.
If
a
funder
is
putting
up
the
money,
and
placing
the
claimant
in
the
position
of
a
(nonrecourse)
debtor,
of
course
they
are
exercising
control,
even
when
the
underlying
contract
says
they
are
not.
And
funders
retort
that
they
let
the
lawyers
run
the
cases
and
the
clients
decide
when
to
settle,
so
even
though
they
are
putting
up
the
money,
they
are
ceding
control
to
those
they
are
funding.
Ultimately,
even
if
we
accept
that
there
will
always
be
differing
opinions
on
the
question
of
a
funder’s
control,
I
think
it
is
also
clear
that
the
context
of
when
the
question
is
asked
is
also
very
relevant
to
the
analysis.
For
example,
one
must
distinguish
between
a
cox’s
input
when
the
rowers
are
putting
in
the
meters
on
the
erg
during
training
camp,
to
when
the
cox
is
calling
out
the
stroke
rate
for
the
final
sprint
in
an
Olympic
race.
In
the
former,
the
cox’s
voice
is
just
one
of
many
that
the
rowers
may
hear,
while
in
the
latter
scenario
the
cox’s
voice
is
the
most
important
one
in
the
universe
to
the
team.
Likewise,
a
funder’s
input
into
the
client’s
decision
making
may
be
mildly
impactful
in
the
early
stages
of
a
case,
but
that
same
funder
voice
when
settlement
negotiations
are
being
undertaken
with
a
jury
out
deliberating
may
have
much
more
weight.
Does
that
weight
ever
rise
to
the
question
of
control?
We
can
keep
debating
that,
and
will
likely
do
so
until
a
legislative
definition
of
some
kind
arises.
On
the
judicial
side,
we
already
know
that
there
are
varying
opinions
on
whether
the
question
is
worth
asking,
as
well
as
with
respect
to
what
the
answer
might
be.
Choppy
waters
indeed.
Please
feel
free
to
send
comments
or
questions
to
me
at
[email protected]
or
via
Twitter:
@gkroub.
Any
topic
suggestions
or
thoughts
are
most
welcome.
Gaston
Kroub
lives
in
Brooklyn
and
is
a
founding
partner
of Kroub,
Silbersher
&
Kolmykov
PLLC,
an
intellectual
property
litigation
boutique,
and Markman
Advisors
LLC,
a
leading
consultancy
on
patent
issues
for
the
investment
community.
Gaston’s
practice
focuses
on
intellectual
property
litigation
and
related
counseling,
with
a
strong
focus
on
patent
matters.
You
can
reach
him
at [email protected] or
follow
him
on
Twitter: @gkroub.