rethink(ip)

TGIF - Oops, I keep doing it again...

Posted by Douglas Sorocco at April 29, 2005 06:18 AM

Another week and another Friday.  This one has been a long week.

I have been getting a lot of “harassment” from the other rethink’rs about my rants that I like to go on from time to time.  In fact, I think I heard Matt say the other day “Oops. There he goes again.”

So – I thought a little Oops music and video might be in order:

• “Oops, I did it again” – Weimar German version.
• “Oops, I did it again” – Louis Armstrong version.
• “Oops, I crapped my pants” – Aging version.
• “Oops, nothing ever changes” – FedEx version.

Any other “Oops” items I need to know about?

Thanks to Andrew Sullivan for the music pointers. Have a great weekend!

New Features on Rethink(ip)

Posted by Douglas Sorocco at April 28, 2005 08:10 PM

For those of you following via RSS, there are some new features on the Rethink(ip) blog.

• A new navigation bar across the top.
• A “Rethink’rs” page with more information about Steve, Matt and myself.
• The item that most excites me — an “Eavesdrop” section and “Eavesdrop RSS Feed”

The Eavesdrop section is an experiment.  We really like what the Between Lawyers crew is doing over at Corante and thought we would extend it to our Rethink(ip) project. 

In essence – the Eavesdrop section is your opportunity to eavesdrop in on the email conversations Matt, Steve and I have offline.  To show you what is “behind the conference room doors” as Dennis Kennedy put it recently.   We share a lot of information while hammering out ideas and we thought we should make this information available to you and give you an opportunity to see the process we go through when discussing IP issues.

We are still experimenting with the format – so let us know what you like and what you would like to see more of – in fact, email us some questions and we will use it for Eavesdrop fodder.  We won’t use your name in our responses, so have no fear.

So – take a look at Rethink(ip) Eavesdrop and let us know what you think.

Rethinking IP Education cont'd

Steve Veenema made an interesting comment in the Rethinking Legal Education and IP post that I want to highlight and comment on:

Speaking as someone who is currently preparing for a Property exam (at Suffolk Law School in Boston), but spends his days working in the real world with copyright and intellectual property issues, I can definitely see value in making IP a requirement, and in integrating it more into the first-year Property class. However, I don't know that it makes sense to view every aspect of your legal education that is not eventually utilized in practice as a worthless waste of a semester (or two). From where I'm sitting, the beginnings of law school are about developing an intellectual framework for understanding the fundamental legal relationships that have developed over time. Losing an understanding of the distinctions between contracts, trusts, agency, bailment, etc... is to lose some of the basis for our system of law. While I agree that few of us may apply that knowledge in any professional capacity, I don't think that the opportunity for professional application should be the determining factor for what is taught in law school.

I agree, Steve.

Law school should be the starting point of the lifelong pursuit of how to “think and act like a lawyer” – the application of rigorous analysis, insight and a good dose of common sense.  A common vocabulary and understanding is necessary to be able to move on to the more judgment and insight related aspects of our profession – but we also need to be providing students with the information necessary to develop the common sense portion of the equation. 

As an adjunct professor my perspective on the teaching of law is a bit different — I don’t see law students being trained in a manner that provides them with the tools to start developing and exercising insight –  not to even mention judgment.  Most law schools are merely fulfilling the need of big firms – producing robots that are programmed to churn and burn billable hours. 

Inductive reasoning is not taught – rote memorisation and “case worship” usually carry the day. 

For example, throw a non-science background person into a patent class and the dynamic instantly changes.  The science folks learn the need to simplify issues so that the non-science folks can understand while the non-science students gain an appreciation of how complex legal issues become when applied to scientific endeavors. 

Each group of people learn from one another more than they will ever learn from the professor.  I would bet, however, that most law schools segregate out the patent class and don’t encourage non-science folks to take the class.

Another disturbing trend I see is that of law schools decreasing the number of semesters required for a degree — I would argue the opposite should be occurring.    Ideally, law school should be a 4–5 year experience with required internship semester between semesters of coursework. 

Every law student should be required to work with clients much the same way that doctors should be required to work with actual living patients.   In such a framework, classes on intellectual property could be required and not compete for time with the “staid bastions of legal education”.   Without the practical experience – it is all just book learning, nothing more and nothing less. 

But why should IP law just be taught in law school?  If it is truly touching all aspects of our economy and daily lives – why not make it a requirement for an MBA or even all undergraduate degrees.  Maybe instead of teaching Bar Association CLE classes, IP lawyers should be teaching classes at the local colleges, trade schools and VO-Techs.  Maybe even at the high schools?

Just some more thoughts on the issue…. What do you think? Keep the comments coming.

Request for your insight...what homework do you give clients?

Posted by Stephen M. Nipper at April 27, 2005 04:10 PM

I'm working on a post about the importance of IP attorneys encouraging their clients to read certain books and certain blog posts. Do any of you do the same thing? If so, if you forward me your "must read" list, I'll incorporate that knowledge into the post too. Thanks in advanced. [steve@rethinkip.com]

rethinking...legal education and IP

Posted by Stephen M. Nipper at April 26, 2005 06:12 AM

A number of weeks ago, during rethink(ip) aloud podcast #1, Doug ranted about his view that intellectual property law classes should be a part of the mandatory curriculum in law schools.  I played (at the time) devil's advocate...arguing that (essentially) shouldn't EVERY discipline demand that their course be a requirement.

However...the more I rethink about it, the more I think Doug is right. 

U.S. law schools (as far as I know) nationwide typically follow the same general curriculum blueprint..two semesters of real property, two semesters of contracts, two semesters of torts, etc.  Of course, law school doesn't teach you jack about the practice of law...it teaches you how to pass the bar exam (otherwise why would you torture law students with things that they'll never see...from fertile octogenarians to the rule against perpetuities).

Perhaps my rant is slanted because I practice in a specialty.  Perhaps not.  I'm going to have to be honest with you...I have never once needed anything I learned in my real property class.  Not once.  Two completely wasted semesters of my life.  Some might argue that they weren't wasted...they helped me pass the bar exam.  Bull hockey!!!  I never took trusts and estates either, but the bar exam prep course I took managed to teach me that topic just fine.  Could I have survived without ever taking a real property class?  Probably.  I am sure there are others out there who have never used torts, contracts, etc...for them, did it really make sense to take a whole year of said topics?  I doubt it.

Why not rethink law school...and paint legal education with a broader stroke?  Drop this "Real Property I & II" nonsense and instead teach a Real Property class, and for those who desire it, an Advanced Real Property class.  Do the same thing for (gasp) Torts and Contracts.  Then, require the teaching of at least a cursory intellectual property class and other single semester "required" classes (feel free to suggest your favorites in the comments).   

Why intellectual property?  Do I really need to go there?  I would venture to say that an average attorney stumbles upon more intellectual property issues in a given year than real property issues, yet we are stuck in the past...requiring two semesters of real property but not requiring any coursework in intellectual property.  Lunacy...pure lunacy.

Perhaps this is all part of the "System"...graduate law students who are incapable of practicing law competently.  Perfect fodder for the legal sweat shops where their client contact and the rate at which they incur experience is carefully controlled.  Of course, that's another can of worms...to be opened later.

The comments are open for your...comments.

[Thanks for the encouragement Denise]

How to Become a Client Visionary - Look to Your Mechanic, Subway Sandwich Maker etc.

Posted by Douglas Sorocco at April 25, 2005 07:47 PM

Matt Homann appears to have come out of LexThink induced blogging hibernation today and has fired off several client service oriented posts.  Well worth stopping by The [non]Billable Hour.

One of Matt’s posts was about becoming a “client in order to become a visionary” with the main premise being that lawyers don’t often go out and use legal services, so we don’t see “it” from the point of view of the client. Matt suggests going to the best attorney in town who has the worst client service reputation and see how you are treated. 

Interesting experiment – I will be curious to see if anyone takes the challenge and the outcome.

I don’t think most lawyers would learn anything from the experience, however. Why?  I don’t believe that most lawyers would be able to apply the experience to their own circumstances. 

Think about it for a moment – we are deluged daily with bad service experiences.  For every bad lawyer client service cliche there is one from your daily life:

• A receptionist who puts people on hold: the gum chewing young woman who ignores you while talking on the phone to her boyfriend.  
  
• Not returning a client’s phone call:  the doctor who waited three days to call you back with the results of your test results.
  
• Unexpected bills/surcharges: the cellphone bill, the mechanics bill, the building contractor (this list is endless).
  

While it would be convenient to explain away poor client service on the basis of the lawyer never being in the shoes of a client, there are more than enough examples in our day to day lives that we should be able to draw upon.

The problem is, lawyers tend not to borrow from outside experiences.  For example, we don’t tend to read outside our comfort zone nor do we apply the experiences we have gained in our day to day lives to the problems confronting our cleints.  Not really all that much different than the doctor who makes you wait for 90 minutes in an examination room by yourself.  How would that doctor react if his lawyer made him wait 90 minutes with no explanation?

So, instead of being a client – why not simply make a list of service providers you hate, loathe, despise or abhor and then detail what they have done to make it on the list. 

And then do the opposite. 

TGIF - A Rethink(IP) Milestone Moment

Posted by Douglas Sorocco at April 22, 2005 09:00 PM

I wanted to slip a TGIF item into the mix before Friday comes to an end. 

Well it has been another week in rethink(IP) history and we reached a momentous milestone event today — our first “legitimate” search engine referral!  It came courtesy of MSN search (which has a great RSS search feed service, by the way) and was on the ever popular and o-so-appropriate searchterm….

….. drumroll please ……

“TGIF Franchise Information”

What?  Our first search engine referral is for a TGIF franchise?  Yikes – and to think, we didn’t have our flair on today.  Anybody got any smiley face buttons we could wear around here?

Oh well — have a great weekend!

rethink(ip)'s Podcast in the News

From the ABA Journal's eReport: "The Future Is Hear: Online Audio Podcasts Are the Legal Blogosphere's Latest Trend," by Jason Krause--

Thanks to technologies like electronic filing and electronic discovery, plus the proliferation of self-published Web sites called blogs, today’s lawyers are coming closer to shedding the profession’s Luddite label. So it’s not surprising that lawyers have become early adopters of podcasting, a new form of self-publishing audio on the Net.

Krause's article quotes Blawgcast's very own Kevin Heller, as well as Jeremy Moore, and mentions podcasts by Denise Howell,  "the patent posse" of rethink(ip), and Evan Schaeffer.

Legal podcasting/plawdcasting/<insert your very own word here> is gaining some momentum and you should be keeping an eye on the ever informative and helpful Blawgcast blog!

TGIF - Blog vanity license plate

I took a detour for a little fun this morning.  When my family and I moved away from Chicago and returned home to Toledo, we had some mixed feelings.  A very close friend of mine sent me the image below to help us focus on the real value of the move:

This morning, as I was playing on the official Ohio License Plate site (I’m in the process of getting new plates), I was reminded of the unofficial site my friend used to make the image above.  If you haven’t played on that site yet, you should.  Its a lot of fun.

The results of my morning detour:

I’m jealous of Steve’s plate.  Idaho definitely outshines Oklahoma and Ohio (as an aside, current Ohio plates do have an updated style, but I still think Idaho is the best).

Since Rethink(IP) is a group effort, I thought I’d give it a national flare:

 

rethinking...your first job

The Greatest American Lawyer (whom I met at LexThink) has a very interesting post up on "The Truth About the Billable Hour" which points to a Yale Law School article used to educate law students on billable hours. [some of you reading this may not know that associates in big law firms are often pressured to bill out 1700 to 2300 hours a year...of course every hour you are in the office isn't billable (or at least it shouldn't be) and so the Yale article talks about how hard it is to reach those hourly requirements)].

GAL's article is interesting for two reasons: (1) he talks about the stress on associates to meet their billable hour minimums and (2) he implies the existence of ethical issues incumbent in such a minimum billable hour system. The Yale article breaks it down...that life must suck.

[Disclaimer: I've always worked in small firms that don't have minimum billable hour requirements and thus see the issue from the outside, without experiencing it myself. Maybe this is thus a better "post" for Buchanan or Sorocco to write...maybe they'll add their own comments in separate posts. If not working in such a firm makes me an idiot...flame away, the comments are open.]

I guess this post goes out to the young minds in the audience. I encourage you all to rethink where you take your first IP job. There are many many opportunities out there to work (for considerably lower pay) in small metropolitain areas. Jobs with firms who don't have outrageous billable hour requirements (if any at all), firms who believe in a quality of life, firms in cities where you can actually afford to live in the city (little to no commute)... Oh sure, you'll take a hit, likely a big hit, in starting salary, but consider the benefits? Lower stress, jobs you love, a life outside of the office, more time with your spouse/kids, etc.

I can't imagine a better job in the world than mine....of course it might be fun to work for Underwriters Laboratories (blowing stuff up all day)...but I digress. Rethink about it...consider the possibility of working in small firm, small metro area IP practice.

I can't stand it any more - press release nonsense run amok!

Posted by Douglas Sorocco at April 20, 2005 07:22 PM

The patent posse has teased me about my rants and I promised to be good – well it lasted all of 7 days.

This press release takes the cake — it wins the prize.  It is the most overreaching bit of nonsense I have seen lately.  I am utterly flabbergasted by this one – didn’t their patent counsel spend any time with the marketing department?

What has me in this state — well, lets look at the headline first: “ Micro Tech files patent in 123 countries.”  So, after reading this headline my thought process goes something like this:

Wow.  That is a lot of countries.  Must have cost them a lot of money – they must be serious.  Wait a minute…. why would anyone file in that many countries.  It would cost something like $500,000 plus future prosecution and maintenance costs…. hmm… doesn’t make any sense… let’s read this a bit further.

And thereafter I proceed to find out “the rest of the story,” as Paul Harvey would say.

It turns out that Micro Tech has filed a single Patent Cooperation Treaty (PCT) patent application.  This is a single application that may eventually be filed and prosecuted in all 123 countries which are signatories of the PCT. 

So, while it is true that they may, at some future date to be determined, file 123 patent applications – they haven’t done so today.  They merely preserved their ability to do so in the future.  Is the press release a lie?  Not really — if you squint and balance on your left foot while whistling Eminem tunes you could say that it has some semblance of the truth to it. 

While I am sure that this company is hoping their press release will generate some buzz, it isn’t going to be the type of buzz they want.  Would it have been that hard to get it right?  Shouldn’t someone have been watching out for this type of thing?

I have a proposition:  to every company and individual out there, you should have patent related press releases proofed by your patent counsel for accuracy and completeness.  They should be willing to proof these for you for free.  It should be part of the service they are providing to you as part of their role as an embedded patent attorney.

If they won’t do it — let me know.  There are a couple of rethink’rs around that would be happy to help you out.

I promise to be good from now on – really — I do.

Patent rankings: The numbers game v. patent quality

Every year, several lists are published that purport to rank various types of organizations on some type of innovation scale.  The lists provide great headline material (“Top ten universities announced;” “Most innovative companies named,” etc.), but not much else.  It seems there’s a list for every type of entity (see, for example, these lists for businesses, universities, states, law firms) and the media, including the popular media, gobbles them up, year, after year, after year.

Unfortunately, these lists boil down to nothing more than a numbers game.  Here’s the basic formula for all numbers-based lists:

1.  Count the number of patents granted to an organization in a given year

2.  Rank the organizations in a particular group (universities, companies, law firms, etc) based on the numbers.

Many people blindly believe that, in the patent world, more is better.  This includes many business people (ever look at an annual report of a publicly-traded innovation-based company?  Some business folks are very proud of their “patent numbers”).  Unfortunately, the numbers game is contributing to the quality problem.  Many believe that organizations playing the numbers game are primarily responsible for the perceived drop in patent quality of late.

An interesting aside:  How’s this for irony…in a recent call for reform of the US system, IBM Vice President of Technology and Strategy Irving Wladawsky-Berger, whose company sits atop the USPTO patent rankings year after year, stated flatly that “any idiot can get a patent for something that should never be granted a patent.” 

Numbers-based rankings do nothing but feed the numbers game monster (well, ok, there is the “catchy headline” thing…).

Here’s a seemingly simple rethink:  If patents are to be used as a measure of innovation, shouldn’t patent quality be the primary focus?

I’ve been trying to rethink this one for awhile.  Turns out, its not so simple.  How do you rate patent quality?  Does it require a detailed analysis of each and every claim from each and every patent?  To be accurate, does it require perfect knowledge of the prior art?  Does it require a full legal analysis of validity and scope?

My rethinking led me to conclude that the determination of a quality score is a difficult task.  No matter how its determined, though, a quality score should be a reflection of the scope of a claim or claims relative to the invention and the applicable prior art.  Considering this, its easy to see why the simple two-step formula of the numbers game is so popular.  Its easy!  Determining quality is hard (and likely very expensive)!

I don’t know what the solution is.  But, I do believe that we, as patent professionals, need to downplay the importance of the numbers game and stress the importance of quality over quantity.  So, the next time you read one of those catchy headlines, take it with a single grain of salt.

Another aside:  I am aware of at least one system that purports to use a quality-based analysis: the Intellectual Property Quotient (IPQ) system of PatentRatings LLC.  I have no experience with the IPQ system and would love to hear from anyone who does.

 

A rethinker's tip: Don't pay your patent attorney to record assignments

Posted by J Matthew Buchanan at April 18, 2005 11:28 AM

…or at least don’t pay them as much as you used to.

Here’s a rethinker’s tip that can really save money on the patent prosecution process, especially for mid-sized companies with growing portfolios.

The Patent and Trademark Office’s Electronic Patent Assignment System (EPAS) is, I think, a real hidden gem.  It stands in stark contrast to the fledgling system for filing patent applications electronically in that its easy, user-friendly, and completely web-based.  Surprisingly, not many patent attorneys are using it.

EPAS provides a tool to efficiently handle a small component of prosecution – recordation of assignments.  Incorporate EPAS into your attorney’s workflow, and you’ll save money.

Consider the “old way” of recording a patent assignment:

The patent attorney would prepare an assignment (a form agreement), send it to the client for execution by the inventor(s) (with a form letter), receive and review the executed assignment, file the assignment with a recordation cover sheet, send the client a form letter informing them that the assignment had been submitted for recordal, receive and review the recordation information from the patent office (often months later), and send the client a form letter with the recordation information (usually returning the original assignment).

There’s probably about 1.25 to 1.5 hours billed to the client for that service.  What did the client get for its money?  A series of form letters and information-shifting from the patent office to the client.  The attorney did not really add any legal expertise.

Here’s the rethinker’s way of recording a patent assignment:

Train the client to use EPAS.

This really makes sense for mid-sized businesses with growing patent portfolios.  If a company files 30 applications in a year and does all of its own EPAS filings, this produces a savings of about 45 hours of attorney time.  If you apply an average billing rate of $225/hour, that’s a savings of $9000/year.  What could you do with an extra $9000?  You could probably file another patent application (or two).  I’m betting that would make the business folks happy.

Just think of the savings that could be realized for companies that file 100 or more applications each and every year.

But what if you don’t have the resources (or willingness) to handle EPAS filings?  Well, now its time to see if your patent attorney is a rethinker.  Ask if they can follow this process for recording assignments:

Prepare a form assignment that can be customized for each and every application; have a paralegal review executed assignments, submit assignments for recordation through EPAS, and forward the recordation information once received (typically the next business day).

Using this approach, the amount of time spent by the attorney’s firm for recording each assignment drops to about 0.8 to 1.0 hours of paralegal time.  With 30 applications per year, a savings of about $6000 should be easy to attain.

EPAS offers the side benefit of faster processing by the patent office, too.  The EPAS system consistently provides recordation information in about a day.

No matter the approach you adopt, EPAS will save money.  Wouldn’t it be nice if your patent attorney suggested the use of EPAS? 

 

Is the U.S. patent system the best???

U.S. patent law, at its simplest level is a bargain between the U.S. Government and inventors. The bargain essentially being "you tell everyone else how you did it and we'll give you a limited monopoly to exclude others from doing the same." While Thomas Jefferson and others weren't thrilled with the system...it is the system our founding fathers established.

Blawger and patent attorney N. Stephan Kinsella recently penned a very interesting critique of our patent system in an article entitled "There's No Such Things As a Free Patent." Stephan's article questions whether the costs of the patent system outweigh the gains it provides and mentions some potential alternative systems others have proposed (reward systems, nationalized IP, taxes to fund R&D, copyright-like patent terms, etc.). An interesting read...

UPDATE: For those of you reading via RSS, the comments for this post continue the discussion...

The rethink(ip) blog: My week one observations

Posted by J Matthew Buchanan at April 15, 2005 02:49 PM

At the end of week one for the rethink(ip) blog, I’ve got lots of things running through my head.  The two biggest observations I’ve had this week are:

1. The rethink(ip) group (the 'patent posse', as Ernie (and others) have called us) is truly a team. I learned this at Techshow when we met in person for the first time and was reminded of it several times during this initial week for the blog. We have quite a bit in common, including a real passion for intellectual property and making improvements to 'the system.' Importantly, we can disagree on an issue and still discuss it intelligently.  This really is amazing to me considering we’re competitors.

To boot, we’ve got a lot in common on the personal side, too.  As Ernie said, we formed the first subcommittee of the Internet Bar Association for professional reasons, but we’re already the better for the friendship it has created.

2.  Demand for rethinking(ip) is huge.  We’ve just started scratching the surface, but already the response has been fantastic.  Thanks for the comments and e-mails.  Our passion for this has only been fueled by the response we received this week.

Thanks to everyone who has visited the blog, commented to us, and/or commented about the blog elsewhere.  We’re having a blast and are very excited to have a place to do all of our rethinking.

 

My week one observations

Our rethink(ip) blog has been up for a week now (officially), and it has been an interesting week.  My observations:

1. I would have never thought that the blog would have turned out the way it did.  It is like we all had quite a bit of built up frustrations (some more than others) with the practice of IP law...and we started the process of unloading that anger/annoyance by posting onto the blog.  I'm sure we had 1/2 our audience nodding their heads and the other 1/2 highly annoyed.  That's just fine with us.
2. I am very encouraged by the comments of other bloggers...thanks.
3. I have been pleasantly surprised at the number of my old readers and friends who have, presumably after seeing rethink(ip), e-mailed me personally to check in...to make suggestions...to start old conversations anew.  That itself is really cool. 
4. I am grateful for the contact with the outside world because one of the resolutions I made with myself post-LexThink was that I need to do a better job of connecting with the people around me...sending e-mails, leaving comments on blogs, etc.  If you read something on a blog that inspires you, that annoys you, that made you smile...send the blogger an e-mail or leave a comment. Sometimes it can fell like we are all, as Seth would put it, farming ostriches.

Thanks again...

TGIF - we might be getting ahead of ourselves

Well – it has been a week and we are beginning to believe our own press.  Bad sign.

Although it may be getting a little ahead of things — if you are interested in buying a Rethink(ip) franchise – let us know.

We’ll make you take a test first, however. 

Followers need not apply.

What did you rethink this week? Drop us a comment and let us know.

And, of course, a little something fun to get you ready for the weekend.

Anonymous Lawyer: Not embedded patent attorney material

Posted by J Matthew Buchanan at April 14, 2005 11:25 AM

This post is the first on Anonymous Lawyer that didn’t make me laugh out loud.  For some reason, I took this one to heart.

Anonymous apparently hates clients who need their lawyers to partner with them.  Simply put, Anonymous wants to use his (and his firm’s) expertise to get in, fix a problem, and get out:

There are two types of clients. There are the ones who understand how this business works and let us come in, solve their problems, and get out. And then there are the ones who want something we're not selling. They want a therapist. They want a business advisor. They want someone to "partner" with them, and "understand their business," and "be a member of their team."

Anonymous is a big firm guy (BFG), so it comes as no surprise, really, that he’s not selling ‘partnership’ (what we like to call the Embedded Patent Attorney in our intellectual property sphere).  He can’t.  As a BFG (a BFP (partner), no less), the economics of law practice have put him so far into the stratosphere of the billing rate universe that he needs to jump from matter-to-matter (and client-to-client), getting in, billing the daylights out of the matter (and client), and getting out.

Having ‘Anonymous the BFG’ embedded in a company would be a financial disaster for all but a select few organizations.  He probably could train some of his associates (read lower billing rates) to help them become embedded…trying to save the client some money and provide great legal service at the same time.  And fostering a long-term lawyer-client relationship to boot.

Nope.  Anonymous hates these ‘needy’ clients so much that his approach is to “assign the worst…associates I know…just to spite…[the client].”

I’m still not laughing.  Which, of course, is a testament to Jeremy’s writing and his amazing ability to absolutely nail an issue.

 

Rethink(ip) blog improvements - keywords and printer-friendly displays

The three of us are geeks at heart.  Part of the fun of this project is tinkering with the tech, and that includes the rethink(ip) blog.

Recently, we added two improvements to the blog —

1.  Keywords

Each post on the blog will be assigned a primary keyword.  The keyword is a label to group related entries, and is more focused than the categories to which posts are assigned.

Big deal, eh?  We think so…here’s why.  The individual entry archive pages (available by clicking on the permalink at the top of an entry) has been modified to include an ‘Additional Information’ section that will contain a listing of other rethink(ip) posts having the same keyword.

So, when you finish reading a post, the ‘Additional Information’ section provides links to other rethink(ip) information that you may also find interesting.  Sort of like a logical jumpstation.

Want to see it in action?  Look at the individual entry archive for Steve’s Axis of Evil post from yesterday.  See the ‘Additional Information’ section?  Steve assigned the keyword “insourcing” to his post.  As a result, his other post having that keyword is listed in this section.

And here’s the really cool part (I told you we are geeks at heart) – the ‘Additional Information’ section looks backward and forward.  To appreciate this, visit this post at Promote the Progress.  See the ‘Additional Information’ section?  All posts listed there have the keyword PTFMA (Patent and Trademark Fee Modernization Act).  Some are dated prior to this particular post, some are dated subsequent to it.  So no matter where you come into the chain on a particular topic, the ‘Additional Information’ section will provide a full picture of other information on that topic.

Obviously, this is a feature that builds value over time.  Right now, many of our keywords only have a single post.  But give us time…we’ve got a lot of rethinking to do.

2. Printer-friendly display

So you love our writing so much that you actually want to print a post for hanging on the refrigerator.  Cool.  But wait, you don’t want to waste valuable ink on all the snazzy formatting?

No problem.  Visit the individual entry archive for the post you’re interested in, and scroll down to the ‘Printer-friendly Display’ section (right above the ‘Additional Information’ section).  Click where indicated and a new window will open with the text of the post sans fancy blog formatting.

We hope the refrigerators of the patent world will never be the same.

rethink(ip)...the IP Axis of Evil?

Posted by Stephen M. Nipper at April 13, 2005 12:35 AM

When I saw this blog post ("The IP 'Axis of Evil'") I was concerned that this rethink(ip) gig was about to come to an end...that the hate mail was starting. But, alas, it was just a post by Peter Zura on reverse engineering and patent piracy in India, China and Brazil. Peter's post is an interesting read reinforcing my earlier comment that there are security concerns in sending patent disclosures overseas for outsorced patent drafting.

Two tracks are better than one: Is your IP counsel truly only a patent attorney?

Posted by J Matthew Buchanan at April 12, 2005 02:16 PM

Nipper, Sorocco and I are all patent attorneys.  Like all patent attorneys, we prepare and prosecute patent applications.  But, unlike many patent attorneys, we look at the protection of inventions in a broader context.

Many patent attorneys have a one track mind:  patents…patents…patents.  When a client asks for legal advice on how to protect an invention, they begin quoting rates (or fees, whichever term you like) for patent applications.  They never even bother to ask the question of whether a patent is the best form of protection.  Many times it is not, meaning a patent attorney with a one-track mind is doing the client a disservice.

Of course there’s always the obvious issue of whether an invention should be kept as a trade secret.  Some patent attorneys will consider this in their analysis, but even this gets short shrift by many attorneys.

Other, not so obvious considerations are starting to come into the mix, too.  For example…suppose a client has an opportunity to exclusively license its technology to a Chinese company that has a 90% share of the Chinese market.  Is it worth pursuing a Chinese patent?  Are there other options?

A patent attorney with a one track mind would immediately quote rates (fees) for Chinese applications.

But wait.  Let’s open a second track and ask some tough questions.  What if its not a single patent application, but fifty?  One hundred?  Is this an opportunity that can wait for the filing of all the applications?  Have some or all already been filed?  Issued? What do we know about Chinese intellectual property law today that may help in the analysis?  How valuable is a Chinese patent?  What is the likelihood of being able to successfully enforce a Chinese patent?  Is the ‘enforceability’ of Chinese patents on an uptick or a downtick?  Any risks in disclosing to the Chinese without having an application on file?  Is there a foundation of trust between the client and the potential Chinese licensee?  What about Chinese confidentiality and trade secret laws?  How do the Chinese view technology licenses?  Patent licenses?

Could an exclusive license to the client’s technology, in the absence of Chinese patents, be sufficient?  Is it a better business deal when compared to filing one/fifty/one hundred Chinese patent applications and licensing the resulting patents?

The attorney can’t answer the business deal question.  But, a patent attorney that thinks on at least two tracks can better help the client faced with the problem.  Indeed, he can actually counsel the client.

This is just an example to generate some thinking.  The bottom line is this:  its not always about patents…patents…patents.  Your patent attorney should help you open the second track when appropriate and consider alternatives.

 

thank you for such a great opening weekend

It has been a crazy couple of days since the launch of Rethink(ip). A blog, more than a dozen posts and a podcast have contributed to our sleep deprived euphoria.

So, what do we think so far … it has been a blast!

Thank you to everyone who has linked to Rethink(ip), made comments about our site, and especially to those folks who have been so instrumental in us taking this next step.

What is the blogosphere saying, well you could look over at Technorati to see who is linking to us. Alternatively, read on further…

• Patent Baristas  “These guys are like the Army. They do more before 9 a.m. than most people do all day.”

• Blawgcast

• Blawg

• b.cognosco  “A promising new intellectual property blog (which will, no doubt, have a wonderful Terms Of Service) – rethink(ip).”

• Ernie the Attorney “I think that many of the lawyer bloggers who refer to each other in posts are essentially acting like an ‘Internet Bar Association.’ The so-called patent posse’ (Nipper, Sorroco and Buchanan) are essentially forming one of the first sub-committees of the IBA. Smart move, and I’m sure they’ll benefit professionally from having done so. Even if they don’t, they’d probably still think it was worth it for the friendship that it will foster.”

• Notes from the Legal Underground

• Aernetia

• Dennis Kennedy  “The people behind rethink(ip) have impressed the heck out of me and it’s well worth your while to pay attention to whatever they are doing.”

• EEJD

• Denise Howell – Bag and Baggage

• Small Business IP Protection and Management

• Matt Homann’s The [non]Billable Hour  “I’ve know the guys virtually for quite some time, and was totally amazed to see them hanging out as if they’d known one another forever. In fact, their first face-to-face meeting was at Techshow.”

• Carolyne’s Pages of Interest

• Tom Mighell’s inter alia  ”...are pooling their considerable IP talents and writing about it at rethink(ip). They’ll be discussing ways to “fix” what’s wrong with intellectual property law—I’m looking forward to it!”

• Tech Transfer 101 blog
  

Thanks so much for the INCREDIBLE “send off” – we consider y’all friends and look forward to you keeping us honest.

As always – praise, scorn and comments are welcome at rethinkip@gmail.com

More JSLogan on Billable Hours

Jim Logan over at the JSLogan blog is on a roll…. Jim continues his great posts on the shackles of the billable hour with a post entitled “The Bane of the Billable Hour, Don’t Miss the Next Great Opportunity.”

Quote:

I'm more convinced than ever the next great opportunity in professional services is value-based billing. In my own business, we don't bill for time - never have, never will - and the results are impressive, both for us and our clients. Billing customers based on results, defined from their business purpose, is a Win-Win business proposition that creates fierce customer loyalty and ultimately more revenue for both the customer and consultant. Once your combined goals are aligned, the opportunity for mutual success increases.

Good luck with the book Jim – we will be looking forward to you and Richard’s further insights.

rethink(ip) aloud podcast #3...interview with PHOSITA blog's Doug Sorocoo

Posted by Stephen M. Nipper at April 11, 2005 02:31 PM

Our "rethink(ip) aloud" podcast (#3) is up.

In this episode I interviewed Doug Sorocco of the PHOSITA blog about his blog, the lessons he learned, his advice for new bloggers, and his (and all of our) favorite non-IP blogs. In the process he talks about losing his "Google Juice"...no, not the April Fools Google prank...but some 'other' mystery juice.

Here are the show notes:

Doug’s PHOSITA Blog
Dennis Kennedy’s Technology Trends for 2004
Embedded Patent Attorney
Doug mentions “Scoble-land” (referring to Robert Scoble and the “gazillion” blogs he reads every night)
PHOSITA on “who is smarter: lawyers or software engineers”
The Invent Blog post of “My Partial Switch to the Mac”

Non-IP Blogs we like:

Slacker Manager blog
Slacker @ Work Manifesto
Eric Mack Online blog
David Allen’s blog
Matt Homann’s The NonBillable Hour blog
Church of the Customer blog and podcast
Seth Godin’s blog and Seth Godin’s – “All Marketers Are Liars” blog
Seth Godin on “Yak Shaving”
Seth Godin on “Care”
Mark Cuban’s “Blog Maverick blog”
Kirsten Osolind’s re:invention blog

Total run time: 18:40
Size: 10.7MB
RSS feed

Comments, suggestions, etc...Feedback.

Lawyers as leaders in customer service by professional service providers: A little more Texaco

I’ve been thinking a little more about my prior ‘Texaco/Back to the Future’ post on customer service.  As a short recap, I think law firm customer service, in the general sense, has slid to an all time low.  The Texaco scene from Back to the Future provides a vivid indication of the depths to which customer service has slipped in general.  In the scene, set in 1950s America, uniformed station attendants rush toward a car that just entered the station…looking to help the customer with whatever they need.  This, of course, never happens any more.  Not at gas stations or fast food restaurants.  And, most disturbing to me, not in law firms.

Over the weekend, I did a little rethinking on this issue and now I’m focusing on opportunity instead of bad examples.

Why?  Its simple.  I think the other professions are actually worse at customer service than lawyers.

Here’s two examples that started my rethinking.  In Saturday’s mail, I received two invoices from professional service providers:  one from an accountant and one from a health care provider (the hospital, I think; its hard to tell who actually sent it).

The accountant’s invoice reads “March accounting services….$X.XX”.  That’s it.  No explanation of the services provided whatsoever.  To make matters worse, I wasn’t even aware that I was a client of this particular accounting firm (they do the firm’s work, not my personal work).  That’s true…I had no idea I was a client.  How’s that for customer service?

And then there’s the health care provider.  The invoice was for a recent visit my wife and I made to the emergency room with our newborn baby.  That visit is, to date, the worst example of professional customer service that I’ve personally experienced.  These guys took poor customer service to a whole new low.  Everything turned out ok on this particular visit, but I remember leaving the hospital with a “what just happened” kind of feeling.  During the visit, no one would give me or my wife a straight answer on the problem  Not the nurses, not the physician’s assistants, and not the doctors (believe me, we asked).  Two doctors argued over the ‘diagnosis’ (in front of us, by the way) and my wife and I were eventually sent home without receiving any form of treatment for our 6–week old son.  Seriously, they didn’t do anything.  We sat in a room for a few hours, and then they sent us home.  Period.  I still don’t know who won the argument.

I understand that no treatment may have been the best route.  I don’t need a “product” to feel like I’ve received the benefit of professional services.  But I would have appreciated a competent consultation on the matter.  In fact, I think my wife and I deserved this.  I suppose its possible that my insurance doesn’t cover that level of service…

I know that clients of law firms have had similar experiences.  A friend of mine recently relayed an example in which his monthly litigation invoice took a huge jump recently (up, not down).  Turns out, the firm handling the case had added three associates to the team.  Full time.  The first he had heard about his new “teammates” came via the invoice.  Funny thing is, he said that he would have authorized additional resources had they approached him with a plan.  But, because of the way in which he was made aware of the “need” for more resources, he was left with a negative impression about the firm.

“Will you use that firm for your next litigation.” (I love asking the obvious questions).  He gave me a simple and telling response:  “Absolutely not.  Even if we win this one.”

So here’s the rethinking.  What if we improved?  What if law firms became the example of premier customer service from professional service providers?  Other professionals are so poor at it that we could be the best with minimal effort.  A few baby steps might do the trick…like improving invoices.  And, if that’s true, think of what a giant leap or two would do….like returning phone calls and eating a little overhead once in awhile.  The sky’s the limit here.

 

When your services are a commodity

When your services are a commodity – everyone treats them like a commodity.

For example, if you take the “relationship” out of the legal services equation what are you left with? 

Simply put - commodity. 

The attorney loses, the process loses and, most importantly, the client loses.

Update: I missed it earlier, but the Patent Baristas have also weighed in on this topic in an excellent post. 

Is your IP attorney stuck in the sand?

Posted by Douglas Sorocco at April 10, 2005 05:20 PM

Is your IP attorney stuck in the sand?

You know the type – always too busy to return your call.  Always too busy to sit down with your technical staff and explain legal principles and concepts in an understandable manner.  Always too busy to stop by the lab or manufacturing plant to see what is new.  Always too busy. 

Always – just – too – busy.

This attorney is stuck in the sand – the metaphorical sand of the billable hour.  It can be the billable requirement that their firm imposes on them (I just heard the other day that it is creeping up to 2300 hour mark in the Philadelphia area) or it may be the strict adherence to the billable hour model of charging for services. 

However it is being used – the billable hour is the sand keeping the attorney from truly integrating themselves into your business or technology.  Putting in the extra “non-billable” time isn’t valued by the attorney because it isn’t valued by their firm.  Therefore, they are always “too busy” to do the other things that nurture and foster a relationship focused on the well-being of the client and their business. 

It isn’t valued anywhere in the legal revenue generation food chain.

An example: patent drafting and prosecution is extremely susceptible to alternative billing models – but many patent attorneys don’t offer them.  Oh, they may say that they do by offering to prepare and file the application for a “fixed fee”. 

The truth — they are still gauging the fee on billable hour methodologies.  They are determining the number of hours it will take – let’s say 40 – and multiplying that by their billable rate – let’s say $200 – and coming up with an “alternative” – i.e. I will prep this application for you for $8,000.  The client walks away thinking that they just got a “deal” and that the attorney will be working harder for them because, Afterall, the attorney is willing to be flexible and learn about the business.

See the shell game?  The patent attorney is stuck in the sand – they can’t get away from the billable hour even when determining an “alternative” fee.  They just “presold” the client a specific number of hours of their time.  The attorney has even less incentive to spend extra time with the client now – not more. 

So – the next time your patent attorney offers you a flat fee arrangement, find out their hourly rate first.  They are your hours – you might as well figure out how many you actually bought.

The image is from the The Social Customer Manifesto blog – one to read, if you know what I mean.

Meaningful and Nonbillable Conversations with Clients

One comment from LexThink has stayed with me (haunted me) the entire past week. 

The story I overheard went something like this:

After setting up my company, I sat down with my lawyer and asked him to walk me through what I should be looking for problem-wise in the future.  My lawyer’s response: “don’t worry about it, if you have any problems just give me a call.  It would cost you too much for us to sit and discuss possible future issues.”

This is just so wrong on so many levels:

• The lawyer is patronizing the client – they would have been much more honest by just saying “Now don’t you worry your little fuzzy wuzzy little head – I will take care of all the bad boogey men for you.”
  
• The laywer was not invested in the client.  The lawyer heard “talk to me” and shot out of his mouth “it will cost you”.  The concept of investing in the client didn’t even pass through their mind.

Intellectual property is a complex area of the law – I could never bill for every explanatory conversation I had with a client.  Part of my ethical duty as a lawyer is to take the time to explain the issues in a manner that any client can comprehend and use as the basis for decision making.  If the client doesn’t understand an issue – it is my problem, not the client’s.  It is my obligation to make it clear and I have to spend as much time as it takes.

I could view this time spent as wasted or I can view it as an investment in my client. 

I choose to see it as an investment.

I choose to empower my clients to act in the face of a problem – prior to calling me.

I am investing in their business, their enterprise and their knowledge.  As the Legal Marketing Blog says, you gotta Take the Time to Have Meaningful, Nonbillable Conversations with Clients.

 

Is your attorney working for you or against you?

Posted by Douglas Sorocco at April 9, 2005 02:13 PM

One of my favorite blogs for big ideas is Jim Logan’s JSLogan Blog. 

JSLogan is an example of the type of blog I cite in the forthcoming Rethink(IP) Aloud podcast – not in the legal realm per se, but filled nonetheless with great information and insight that can be ported over into our daily practices.

I just finished reading one of Jim’s posts entitled “Are you working for me or against me?”  Jim’s post riffs off Bob Bly’s blog post listing five industries that may have to work against the client in order to be successful. 

Jim’s post deals with business consultants but I am going to take some creative license and tweak a couple of the paragraphs:

The not-so-good lawyers want to sell you their services, regardless of whether or not you truly need their service to achieve your business purpose. These lawyers don’t define their success by achieving your purpose; they're merely concerned with selling you more tasks and billing more hours.

What if the lawyers you hired were only driven by your business purpose? What if instead of selling you endless services – tasks upon tasks – they actually solved your problems and were compensated for resolving the business issue that prompted them to be hired?

Do the lawyers you work with exist to actually solve your business problems or do you believe they secretly hope to never address your business purpose and as a result sell you more and more tasks?

All I did to these three paragraphs was replace ‘business consultant’ with ‘lawyer’ – frightening how coherent it is with such a simple find/replace isn’t it? 

Two questions I would like to pose to the blogosphere:

• Why do clients continue to use such firms/lawyers? (Maybe Zane of Conference Calls Unlimited will take a stab at this one)
  
• If you or your firm is working against your clients, why are you a lawyer in the first place? 

 

ipodder link for rethink(ip) aloud podcasts

Well, call us slow – but don’t call us stupid. 

We finally figured out how to do a valid XML feed with enclosures for the Rethink(IP) Aloud podcasts.

The url is http://feeds.feedburner.com/RethinkipAloud 

Simply add this feed to your podcast software of choice (such as iPodder) and the Rethink(IP) Aloud podcasts will be effortlessly streamed for your listening pleasure.

Thanks for all the great feedback – we have been furiously taking notes and promise that Rethink(IP) Aloud Podcast #3 will be even better – of course, it is about my (Doug’s) blogging history and reasons for starting the PHOSITA blog – so it has gotta be great.  =)

Insourcing Patent Work

Posted by Stephen M. Nipper at April 8, 2005 04:27 PM

On law.com’s IP Practice Center this morning was a link to an article in the Texas Lawyer (subscription required) called the Pros and Cons of Drafting Patent Applications in India.

The article is an interesting read, discussing the concerns of exporting technology, but also mentions the “Pros” of outsourcing patent work to India, namely saving money. For instance: "It's not unusual for GCs to pay attorneys' fees of $10,000 or more for drafting a patent application and $2,000 for responding to an office action from the USPTO" and "[t]he opportunity to obtain these professional services at a discount of 50 percent or more clearly appeals to GCs with a tight budget."

Costs are always a concern, and always should be. But don't assume you have to give up legal expertise or risk disclosing your invention overseas when cutting costs. There are other options to high legal bills, namely insourcing.

Insourcing? Insourcing is sending your work inland rather than overseas. Sadly, other industries have been quicker to grasp this concept than the legal market. For instance, Conference Calls Unlimited (CCU) (in Iowa) is an amazing company who through doing business inland has become a true gem for telephone conferencing services…not by spending millions on advertising, but through providing competitive rates and great customer service (something their “big city” rivals can’t). [note: CCU’s CEO Zane Safrit has summarized his view of insourcing in his manifesto "Outsourcing Our Economy: The other shore of offshoring [pdf]"]

So why not consider insourcing your work to smaller firms in smaller cities? Having lower overhead and cost of living costs, you’d be surprised how you can “obtain these professional services at a discount of 50 percent or more” right in your own back yard. The real irony is this: the attorneys at smaller firms in smaller metropolitan areas are typically under smaller billable hour requirements (if under a requirement at all). Translation: They actually have time to stay current on new developments in the law and are willing to invest THEIR time in developing relationships with clients. Try to get both of those things from either BigCity USA or India. You can't.

Outsourcing is not the solution...rethinking IP (and insourcing) is.

Quit Flying Solo

This post [thanks Doug] is for those of you I met last week at BlawgerConnect, TechShow and LexThink. 

If I had to post a list of the most inspiring things I read last year, this would be on that list:  a post on the “Relax, Everything is Deeply Intertwingled” blog entitled “Superhacker and Phoneboy” talking about starting a business and collaborating with others.  The post is dead on, particularly:

Every person has strengths and weaknesses. The appeal of a partnership -- even if the team is just a pair of people doing what they can to leverage the power of two -- is a matching so well-suited that the pair's strengths are more powerful than those of either individual, thereby reducing the effects of each individual's foibles. Whereas finding a romantic partner is such a regular occurrence in our society that people couple all the time, finding a business partner who is truly complementary and thoroughly communicative and unquestionably trustworthy is a much more elusive achievement. And yet, there is tremendous value to a business person if s/he can find someone with whom s/he can triangulate issues, talk through everything, make decisions, and take actions. (Not to mention the benefits that stem from having someone who will always watch one's back, who will push back gently, and who will amplify the shared message.)

For me this is exactly what I have found in this rethink(ip) project, but I also see it every day in dealing with startups and independent inventors.  Your success in life is more dependent upon the team you build around you (both at home and outside the home) than on your own passion.  Sure, you need passion, but without someone to fuel that passion (and douse it when it burns out of control), your chances of being successful are greatly hindered.

Quit flying solo.

[Originally posted on The Invent Blog on April 5, 2005]

Announcing the rethink(ip) blog

On the heels of an exciting ABA TECHSHOW and an amazing, thought-provoking experience at the first LexThink, we are expanding our project to include the rethink(ip) blog.

The blog is located at http://www.rethinkip.com. A full text feed is available here.

So what to do with the first post to the new blog? We talked into the wee hours about this at TECHSHOW, and decided to focus on the rethink(ip) project itself—what exactly is it?

Here’s our individual thoughts on that question:

• Matt Buchanan: There’s always a better way, and you should constantly seek it. This is the most memorable piece of advice my father gave me. Rethink(ip) is part of my quest for ‘the better way’ in the delivery of intellectual property services. (Matt’s Announcement)

• Steve Nipper:  In a broad context it is a collaboration between three patent attorneys from three competing, small "inland" IP law firms to get individuals, small businesses and corporations to rethink about everything "IP."  It's broken...let's fix it. (Steve’s Announcement)

• Doug Sorocco: For me, its a mission to define better services that fulfill the underlying promise and value of intellectual property—the transformation of ideas into valuable business assets. (Doug’s Announcement)

You can see that the three of us are on the same page. We have lofty goals…nothing short of leading a complete revolution in the delivery of intellectual property services. We intend for the rethink(ip) blog to become the portal of information relating to the rethinking of intellectual property services.

So stay tuned.

As always, please send any comments and/or suggestions you have to rethinkip@gmail.com.