IP DETECTION
person is an entirely different matter. At best, a prospective client of an IP investigator may have the art of cross-examination perfected if they are a lawyer. Elicitation requires different skills to that of witness cross-examination, so a lawyer may struggle to gain the information needed from a target of an investigation. Tis may count for corporate clients who have no experience in interrogation whatsoever. An IP investigator has the knowledge and skill to conduct a “boots on the ground” investigation, says Bulla. “We know how to elicit actionable intelligence,” he says. “Elicitation is a learned skill, so we know what questions to ask that best elicit the answers the client is looking for.”
Eliciting information from any source is usually done by approaching a target under a pretext, reinforced with a fictional story and false identities. It is important to approach a source with a pretext because it quells a target’s suspicions. Graham Robinson, managing partner at Farncombe International in Worthing, in the UK, says: “When we do speak to targets, we would have created a credible pretext to explain the reasons for our questions and why we need the information.”
A credible pretext requires a complicated infrastructure to support it. When approaching a target, ostensibly to enquire about a product for example, it is necessary to have the capability to back the pretext up with information that is checkable by the target. Robinson says: “We need to have cover companies under which we can operate. Te cover companies need to have phone lines that can be answered under different company names, as well as websites and email addresses. All of these are used to support the pretext that we create.”
Tis infrastructure is sometimes underestimated by the prospective client when they decide to do their own investigation. Aside from being a time- consuming and complex effort, says Robinson, maintaining the infrastructure of a cover company is oſten rife with legal difficulties. He says: “Most of the legislation these days is geared towards making everything more transparent so it is more difficult for people to hide their interests, for very good reasons, but when we have an equally legitimate reason for hiding who we are, there’s quite a tension there.”
Approaching a target under pretext means that a certain amount of deception will take place.
“ ELICITING INFORMATION FROM ANY SOURCE IS USUALLY DONE BY APPROACHING A TARGET UNDER A PRETEXT, REINFORCED WITH A FICTIONAL STORY AND FALSE IDENTITIES”
16 World Intellectual Property Review May/June 2010
www.worldipreview.com
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