Not Rethinking Digital Copyright: Ruling Ends ASCAP's Magical Thinking

Posted by Kristen Cichocki at April 30, 2007 07:28 PM

Not Rethinking Digital Copyright: Ruling Ends ASCAP's Magical Thinking

 

On April 25^th, the U.S. District Court for the Southern District of New York ruled against the American Society of Composers, Authors and Publishers (ASCAP) holding that downloads of music over the internet did not constitute a public performance under copyright law.

 

Performance rights societies, such as ASCAP, license and collect royalties for the public performances of their member’s works. Traditionally this has meant all performances of a work on radio, TV, cable, in bars, clubs, malls, airlines, websites, etc; in short, public places where the work was played and somebody heard it.  ASCAP also collects performance fees on all digital streams, which are not unlike radio broadcasts.

 

On March 1, 2007, ASCAP filed a request to initiate a royalty rate proceeding with reference to royalties for online music provided by AOL, Yahoo! and RealNetworks.  In its motion, ASCAP asked the court to confirm that all transmissions of music over the internet, including downloads, are public performances.  This is where the magical thinking comes in.

 

Under Sec. 101 of the Copyright Act, “to perform” means to recite, render, play, dance, or act it, either directly or by means of any device or process. To perform a work “publicly” means 1) to perform at a place open to the public where a substantial number of persons gather or 2) to transmit the work to a place open to the public or by device or process in a way the public is capable of receiving it (think radio).

 

I don’t know about you, but when I download something I’m usually by myself (in the law library).  And what I get from iTunes is not a ‘performance’, but a copy of a musical work for which I’ve paid.  Not dissimilar to what I get when I go to my local music store and buy a copy of the latest Modest Mouse CD.

 

The court obviously agrees. In his opinion, U.S. District Judge Connor noted that the language of the statute was clear, “in order for a song to be performed, it must be transmitted in a manner designed for contemporaneous perception.”  The court then aptly pointed out that the downloading of a file was more accurately characterized as the reproduction of a music file, i.e. a copy. As the court points out, this is consistent with the holdings in the peer-to-peer file sharing cases which found that the downloading of copyrighted music files violated the plaintiff’s reproduction rights.

 

The court thus declined to rethink downloads and maintained, contrary to ASCAP’s creative imagining, that downloads are nothing like radio broadcasts or digital streams. A download is simply the transfer of a file from one location (the iTunes server) to another (my laptop).  Like the sale of a CD, the one who transfers the file pays what is known as a mechanical license fee to do so. In the digital realm it’s called a digital phonorecord delivery (DPD) license.

 

Unfortunately for ASCAP, mechanical license fees are paid to the Harry Fox Agency.

 

Read the full opinion here

 

Another example of rising restriction requirements?

Posted by Kristen Cichocki at March 22, 2007 09:14 PM

As some of you may know, I’m one of the parachute packers here at RethinkIP. That means I’m usually behind the scenes updating the RSS Mojo with the latest news from the USPTO.  But, I’m also a law student with a slight obsession for everything IP and sometimes I just gotta lend my two cents.

 

In a recent post Stephen Nipper revealed he was spending some time saying “hmm” over the possibility that the recent drop in the allowance rate and rising restriction requirements might indeed be evidence of a secret change to official USPTO policy.

 

Well now it’s official, at least for applications containing nucleotide sequences. 

 

On March 12^th the USPTO issued a pre-OG notice indicating it is rescinding the partial waiver of requirements and unity of invention it provided in November 1996 for applications that included claims for isolated and purified DNA fragments and other certain DNA fragment combinations.

 

In 1996, the PTO remarked that it needed to “simplify and standardize” its policies and procedures in order to promote the growth of the biotech industry. The waiver allowed applicants to claim up to ten independent and distinct nucleotide sequences in one application. 

 

The numbers indicate the waiver worked. According to statistics from the Georgetown University DNA database, in 1996 there were a little over 1,500 DNA-based patents issued in that year. At its peak in 2001, 4,500 DNA-based patents issued. According to Georgetown, there are over 37,000 DNA-based patents that have issued to date. That’s of course not counting all those pending applications claiming nucleotide sequences (as of today, there are over 41,000 DNA-based applications in the pipeline).

 

Sheer volume and advances over the past ten years in biotechnology have obviously forced the PTO to rethink its policy.

 

Might the PTO be forced to do the same thing in other areas where patents have been proliferating at high rates (e.g. software and business method patents)?  I look forward to your comments.

 

 

Chicago. Tomorrow Night. Blogger Bar Crawl

Posted by Stephen M. Nipper at March 21, 2007 09:38 AM

Matt, Doug and I are going to be in Chicago the next few days for ABA TechShow. Tomorrow night at least one of us will be participating in the TechShow Blogger Bar Crawl that Matt Homann is putting on. If you're an attorney, blogger, law student, et al...and will be in Chicago, look us up.

http://inventblog.com/2007/03/in-chicago-want-to-meet-up-with-some-law-bloggers.html

New FedCirc.us Search Tool Released

Posted by Douglas Sorocco at February 15, 2007 06:29 PM

The master plan for the FedCirc.us site includes several web features designed to deliver patent caselaw information in a more effective manner.  The first - the GimmeTen! feature - has quickly become the most popular page on the site...and for good reason.  Not familiar with it?  Simply bookmark http://10.fedcirc.us and visit regularly.  That page always provides concise summaries of the ten most recently posted case reviews.  We're confident you'll quickly be hooked.

Today we announce the second feature in our bag of tricks - the travelling FedCirc.us search engine.  By following the steps below, you'll be able to search the FedCirc.us site from anywhere on the web.

The best part is the simplicity -- 5 easy steps (4 for most people).  Five minutes tops.

1.  Make sure you're using either Internet Explorer 7 or Firefox 2.0 as your browser.  If you're not, download the latest IE here or Firefox here (both are free).  For the record, FedCirc.us is optimized for Firefox.

2.  Start your browser.

3.  Visit FedCirc.us.

4.  Pull down the drop-down search box in the upper right hand corner and select "Add FedCirc.us" (in Firefox) or select "FedCirc.us" with the gold star next to it (in IE, see image at right).

5.  Surf the web.  Whenever you want to search the site, simply enter a search string in the box in the right hand corner, pull down the list, select FedCirc.us, and hit return.  You can do this from any page on the web...and you'll immediately be transported to a listing of search results from the site.

I've quickly gotten used to searching by party name or full case name as I'm reading on the web.  This little trick has changed my surfing habits for the better...it's a wonderfully efficient way to find information quickly.  We hope you find it useful as well.

As always, if you have any comments or suggestions, please let us know.  You can e-mail Matt directly at jmb @ rtipllc.com.

Enjoy!

New Magazine Covers Federal Circuit Patent Decisions

Posted by Stephen M. Nipper at January 31, 2007 11:28 AM

FedCirc.us (Matt/Doug/I) announced earlier today the availability of a free preview issue (The Resolution) of our quarterly magazine, The FedCirc.us Reader.  Download the .pdf here.

The Resolution will give you a sneak-peak at the features of the magazine.  It's jam-packed with all sorts of patent-caselaw goodness, including a 'Trend Spotting' article, a featured case review, prosecution- and litigation-focused digests, chronological and alphabetical listings of cases from last quarter (including summaries), and a fun "Quotables" section that includes some of our favorite quotes from cases issued during last quarter.

For this issue, we've even included a brief note about the story behind the FedCirc.us name and domain.

We think you'll agree that the magazine is an exciting and effective new tool for staying current on patent caselaw developments.

Of course, the free preview issue includes subscription details for the magazine.  The site will be ready to accept subscription payments starting tomorrow.

Please do download our first copy and let us know what you think.

A Rethink(IP) need: graphic design help

Posted by Stephen M. Nipper at November 30, 2006 03:57 PM

Matt, Doug and I have been talking about creating some novelty T-shirt designs that are patent and IP related. 

If any of you are handy enough with Gimp/Photoshop/graphics editing software to make simple designs (nothing too elaborate) and would be interested in helping out, drop me (Steve) a line at:  nipper@inventblog.com

It's here...LegalMojo (our jobs board) is Live!

Posted by Stephen M. Nipper at October 3, 2006 11:35 PM

 

 

Head on over to www.legalmojo.com for the scoop.

 

 

 

 

Strong-Non-Obviousness ... Trap? I think so ...

Posted by Bill Meade at September 25, 2006 01:32 PM

Bill Meade
bill@basicip.com
http://www.basicip.com

Q. What makes an invention disclosure easy to file as a patent?
A. Strong-non-obviousness.

What is strong-non-obviousness? It is a surprising way something is done. A disclosure that catches an entire patent committee by surprise in the "never seen anything like it before" way is strongly-non-obvious.

Think of the most surprising invention disclosure you have seen in your career. Think about the meeting you were sitting in when you decided what to do with this disclosure. Did the strong-non-obviousness wake up the participants in an otherwise sleepy meeting? Did the non-obviousness cause exclamations of surprise? How long did it take to decide to file on the strongly-non-obvious disclosure? Once understanding of the idea spread to the entire group, did agreement immediately ensue? Was opinion on filing unanimous? Did the disclosure feel like it was the proverbial needle in a haystack?

I've sat in patent committee meetings reviewing thousands of invention disclosures, and I've often observed strong-non-obviousness to completely disarm otherwise conservative, stodgy, risk-averse, analytical, and independent thinking people. I think strong-non-obviousness CAN BE a trap, and I'd like to explore why. Please comment on this post. I *think* that the effect that strongly-non-obvious IP has is widespread. I'm curious about what your experience is.

A trap? Why? First, because a patent committee's response to a strongly-non-obvious invention disclosures is often automatic. Automatic in the sense that decisions to file strongly-non-obvious disclosures are conditioned by disappointment and cause goal displacement.

When you review one uninspiring disclosure after another you can get hungry to see something great. Something that would make you proud as a patent attorney to have on your resume. Broad, genuinely new, useful, and with non-obviousness that even a *patent examiner* can understand. In fact, you may have caught yourself hoping for an office action stating the invention is obvious. Payback time for that "correction" the ESL examiner made to your EFL English last year.

Inspiration, pride, craft, payback, wow is there a lot of invisible baggage that is carried along with strongly-non-obvious invention disclosures. This baggage can, and frequently does, displace the goal of making a company money with IP, for other intermediate goals. When goal displacement happens because a decision is being made to file a strongly-non-obvious invention disclosure, patent geeks have fun, but shareholders suffer.

The second reason that strongly-non-obvious disclosures can be a trap has to do with the current carrying capacity of patent business processes. The more strongly-non-obvious and idea is, the higher its current. And when an idea's current gets high enough, the governing categories of the IP business process can burn out. If they do, you get thermal runaway.

For example, your company may be in the shoe business, but when you see an idea that is strongly-non-obvious from one of your shoe company employess, and the idea relates to HD DVDs, you will be way more tempted to file on it than you should be. Temptation is a result of high non-obviousness current burning out the category of "company-related" that should be leading to a defensive publication or an inactivation.

All business process categories are at risk from high-current strongly-non-obvous invention disclosures. For example, strong-non-obviousness can short out budgets "This idea is too good not to file!" It can burn out quotas across client organization. Strong-non-obviousness can wreak havoc wherever the phrase "Just one more ..." is listened to.

The final reason I think that strong-non-obviousness can be a trap is that non-obviousness is technical. The way we make money with IP is not just technical, it is technical+economic. My observation has been that strong-non-obviousness of a technical means is UNRELATED to the economic value of the invention.

Now, before you flame me, I must say that I yield to no one in admiration for strongly-non-obvious inventions that are of high economic value. What I'm cautioning against is assuming that because there is technical merit indicated by strong-non-obviousness, there must be economic value. Non-obviousness is a bad (unrelated) proxy for economic value, though non-obviousness is often used as a proxy for economic value in the excitement of an automatic committee decision.

In deciding whether a company should invest in a disclosure, we should measure the value of the patent that would ensue. A patent is valuable because it protects (i.e., reduces frequency of litigation and cost of litigation), because it preempts (opens revenue bearing opportunities, grabs valuable cross-licensing turf), because it promotes a differentiating feature (HP's Ret patent), or otherwise brings value into a company (visualize a net present value cash flow tree 17 years in length).

Strong-non-obviousness can short circuit the calculation of a patent's value, over-writing the economics of deciding on an expensive long-term investment for a company. When strong-non-obviousness does this, it is a trap.

LegalMojo: Legal Jobs Board...coming soon

Posted by Stephen M. Nipper at September 18, 2006 01:03 PM

It's time to move one of our "secret" projects out of the testing phase.

We (Matt/Doug/I) are excited to announce the coming launch of what we believe will be the premiere job board for legal professionals. LegalMojo will launch later this month and to wit we are seeking job postings jobs for this targeted job board.

We are opening this pre-launch opportunity to the readers of our Rethink(IP) family of blogs, as well as the readers of our blogging/blawging colleagues. This is a fantastic opportunity to get your open position in front of our collective audience of attorneys. Job postings will cover all practice areas (not just intellectual property) and regions in the U.S. We have already had a request to expand our offering to include the UK and Australia. To discuss details and get your posting listed, please contact our jobs board director (vince@legalmojo.com) as soon as possible. If you have a position available in your firm or company, we want to know about it.

If you have any questions about the effectiveness of blog job postings, check out this Fast Company article: Blogs, the other Job Board.

Rethink(IP) is Looking for Help

Posted by Stephen M. Nipper at September 13, 2006 01:52 AM

We're looking for a law student or other individual willing to donate five minutes every business day helping us put together our RSS Mojo feed of USPTO News and Notices (until the USPTO does it itself). It isn't exactly the world's most glamorous job and the pay is non-existent. However, if you'd like an opportunity to work with us (we'll even teach you how to use MoveableType)...drop me a line. nipper@inventblog.com

Where's Waldo?

Posted by Stephen M. Nipper at August 30, 2006 11:39 AM

Like my previous post mentioned, posting has been light here on the Rethink(IP) blog due to the fact that we've been working on a number of side projects: like Lawsuit Mojo, Blawgr and The Other One (as well as two others that should be released within the next month that are below the radar).

Lawsuit Mojo update: thanks to paid subscribers we have just finished having the service totallly recoded in MySQL/PHP. We'll be releasing "version 2.0" in the coming weeks, including the ability to search the database.

Blawgr update: Coding on that beast is wrapping up too. We'll be getting beta test invites out to the original Blawgr users and others in the next (we hope) week or two. Think of the new Blawgr as a cross between Digg, MetaFilter, TypePad and MySpace...for lawyers. It is going to be cool...real cool.

The Other One update: You'll have to read Matt Buchanan's post for the teaser.

Where'd Y'All Go?

Posted by Stephen M. Nipper at August 9, 2006 11:39 AM

Oddly, the more we (Doug, Matt, Steve) blog together here, the less we blog together here.  Meaning, we’ve found out that we’re having a tremendous amount of fun building legal communities, tools, and side projects (most of which are still in beta).  I would have never predicted it…that Rethink(IP) would be more about those things than blogging, but I think it is currently true. 

We have some cool tools/web pages about to be released publicly.  Just bear with us.  We’ll resume blogging here shortly.  ;o) 

In the meantime, I’ll leave you with a tease regarding one of the projects:  http://blawgreview.blogspot.com/2006/08/blawgr-coming-soon.html

Carnival of the Vanities #196

Posted by Stephen M. Nipper at June 21, 2006 10:19 AM

One Hundred and Ninety-Six?  Crikey.  That's a heck of a lot of Carnival of the Vanities issues. 

Welcome to Rethink(IP)!   We're three patent attorneys who blog separately at PHOSITA®, PROMOTE THE PROGRESS® and THE INVENT BLOG, and (of course) together here at RETHINK(IP).  We won't bore you with a detailed description of who we are or what we claim to be.  Just have it known that we're in the field of patent law and that an object of our work together is to transform the practice of patent law.  We'll incorporate a little background material (including links to our most popular posts) by reference, for those of you so inclined. 

We will tell you this, though.  We're sort of a Carnival enigma.  No..no...we're not a freakshow, like the bearded lady or something.  We're an enigma...something that baffles understanding and cannot be explained (according to Google, anyways).  We keep hosting them - this is the fourth time we've stepped onto the carnival barker's platform, including two editions of the Carnival of the Capitalists.  According to some of our critics, though, we're anti-Carnival.  Most of that stems from our "rethinking" of Blawg Review #48 (the lawyer blog (blawg) carnival).  Apparently lawyer bloggers didn't want to hear it...regardless of our intent in doing it.  Oh well...sue us.  ;)

The Vanities needs no rethinking.  Nope...the Vanities is exactly what it says it is.  Pure, unadulterated vanity.  Send in a post, and your blog will appear in lights.  So...we offer no rethinking this week.  Nope...we respect and follow the CotV tradition of posting everything.  Absolutely Everything.

This week, Absolutely Everything means the following thirty plus submissions:

The Needle and the Damage Done Madeline Begun Kane, known in the blogosphere as "Mad Kane," writes a notable limerick about Mad Ann Coulter (please excuse all of the Mad's - Ms. Kane's nom de plume got me thinking about General Mad Anthony Wayne, the American General who scored a decisive victory in the Northwest Indian War less than a stone's throw from where one of the Rethinkers is sitting right now).   Read the limerick and laugh.  If you're a Coulter fan, it might make you a bit mad.  Well, I guess maybe if you're Coulter it might make you mad.

Here's a tasty bit...a tasty Bacon Bit to be exact (hey, isn't that a registered mark of some sort?).  DL of TMH's Bacon Bits draws a parallel between the cheating husband and republican leadership .  Both, apparently, have done so much damage that the wronged wife (the GOP base in the analogy) can't be won over simply with flowers.  Nope....the "lawyers' phones are ringing as bags are being packed."  Wow...does anyone know if DC requires a separation period?

Mmm...politics.  Mr. Right at The Right Place gives us an ode called Ms. American Spy.   Michael McCullough at Stingray: a blog for salty Christians gets wound up about Al Gore and some inconvenient truths about global warming.  Of course, then there's Below The Beltway's meme on The Flag And Freedom, a lengthy discussion of the history of flag burning and the proposed Constitutional Amendment.  Finally, The Radical Libertarian asks whether libertarians against everything?  They are apparently not against submitting posts to Carnivals...  ;)

Uh oh.  The Washington Post featured an essay by Linda Hirshman, author of Get to Work: A Manifesto for Women of the World, that, um, tells women to get to work.  Forget the family, pursue an "elite job", and rake in the cash.  Leslie Carbone, of the aptly named LeslieCarbone blog, has fired back with a well-written responsive rant that themes with "it ain't all about the money, honey."

Need 10 reasons why allotments should be preserved?  Check out "Allotments: Ten Reasons Why Preston City Council Should Not Build Over Them " at Save the Ribble. 

Genius!  In the business of making medicaments for bad breath?  Stop the manufacturing lines immediately....and incorporate this breakthrough idea.  Make your product taste like crap.  Seriously.  Well, um, at least the TamsPalm blog is serious about it .  "Revolting taste protects them from getting gobbled up...," which would, of course, defeat the purpose of these products.  What?  I don't know...at least I know that the post isn't about the religious theory of intelligent design (thanks to the explanation of the title). 

Thousands of journalists from across the globe have waited for decades to write about Paul McCartney turning sixty-four.  Well, it's finally here.  Sir Paul is officially sixty-four and most journalists used the birthday, and the song, to celebrate the life and career of the ex-Beatle.  But we're bloggers....we're different.  We see things differently.  Apparently, we hear things differently, too.  To wit...the dustbury blog celebrates Paul's much-anticipated birthday with mocking lyrics that call Paul a bore, long for John's return, and pledge not to buy anymore.  Ouch.

Soccer.  Football.  Hmm...bloggers blogging on it?  You bet!.  Andrew Ian Dodge at Liberty Cadre has had enough and has instituted a personal boycott, while Mark Rayner asks "Do you have soccer on your home world?"  Do you?  Maybe Soccer Dad knows....he had a post titled “The critically acclaimed for a plinth.” 

Thanks Dad.  Of course, Mom wants to tell us all about Four Year Old (Mis)Behavior, Portrait Studios and Pants-Dropping.  We guarantee that is the only blog this week using the term "wenis."  Lisa (next week's host) at Lil' Duck Duck tells another interesting story in The end of the duck & fried carpet??!!  I presume all of those kids know that you should Leave Things Better Than You Found Them.  OK, now that you've left things better than you found them, maybe a little staff motivation would be a good idea, or so Wayne Hurlbert at Blog Business World thinks.
 
Mothers...Fathers...hope you remembered Sunday was Father's Day.  Sunday was "also the day of loss of the USS Bonefish in 1945."   Jack Yoest had the scoop in Fathers' Day on Eternal Patrol.

A number of blogs took a financial advice theme with their submissions:  The AMT – If You're Not Scared, You Damn Well Should Be!, Wire Transfers When Closing on a House, Rate Buydowns, Stock Market Beat: Symantec Leverages Up, Using Mind Games To Stop The Cycle Of Debt.  We're not sure if all of that indicates a hot economy or a cold one...  I guess we could always start a new charitable organization.

Ooops...I forgot to mention that Free Money Finance raised the question Extended Warranty: Worth the Cost?  We’ve always been of the opinion that extended warranties are gambling...and the house always has the advantage.  FWIW.

Where are the CotV tech bloggers?  Aside from A DC Birding Blog’s test drive of new Internet browser Flock in the appropriately titled:  Flock Review, the pickings were quite thin in that area.  Maybe tech guys/gals aren’t vain.

The Rethink(IP) guys are science nerds at heart...thus you've got to love a blog writer who goes by GrrlScientist (Living the Scientific Life blog)!  The Grrl’s submission to the Car-r-nival:  The Rise of The Feathered Dragons.

Finally, three posts that didn't really seem to fit in anywhere else.  Makes me want to shout out "Potpourri for $1000, Alex!"  First, the death of FTD.com is predicted in:  A New Paradigm Replacing the Old.  Of course, Western Union is still around (although they did send their last telegraph earlier this year....  Goosing the Antithesis brings up Lovey-Dovey Christianity vs Reality.  Last, but not least, Suldog at Suldog-O-Rama gives us "A Recipe.”  Good luck finding a pan for that.

And that's a wrap!  Next week's host:  Lil' Duck Duck. 

Announcement: New Weekly Newsletter Covering Trademark Litigation

Posted by Stephen M. Nipper at June 13, 2006 10:14 AM

The fact that a lawsuit has been filed can be an incredibly valuable piece of information, especially in the practice of trademark law.  To wit, Rethink(IP) has released a new weekly e-mail newsletter.  Called Trademark Lawsuit Mojo, the newsletter consists of a list of Federal trademark lawsuits that surfaced in the previous week. 

Why is the existence of a lawsuit being filed such a valuable piece of information?

First, the defendant might not know that he/she/it has been sued!

Your company, or your client, might have no idea that a lawsuit has been filed. How can this be? Remember that in the United States, a plaintiff has 120 days from the date of filing to serve a Complaint upon the defendant(s). To reserve a preferred venue/forum, many times a plaintiff will preemptively file the suit and not serve the Complaint, spending up to the next 120 days putting their case together, acquiring additional evidence, and (sometimes) attempting to settle the dispute.

Knowing that your company or client has been sued (but hasn't been served) can be priceless information when counseling them. How's that for a valuable "heads up?"

Second, the filing of a lawsuit can also be a valuable piece of competitive intelligence.

Knowing that competitor X just sued competitor Y may change discussions you're having with competitor X, Y, and/or A! It could also help in decision-making on several issues, such as marketing and product development. Best of all, it may allow you to monitor the case for information that might be helpful in a variety of situations.

As one reader recently put it:

I subscribed last week and already impressed a client yesterday by being aware of a lawsuit filed by one of its competitors.

You can subscribe to Trademark Lawsuit Mojo using one of the below links.  Current rates are $99.99 a year or $9.99 a month.  The first three weeks are free (free trial).  After the free trial expires you can decide whether you would like to continue your subscription.

We don't expect any of us will be quitting our day jobs anytime soon … commercialization of this project (and eventually Copyright and Patent newsletters) is done to fund the “Rethink(IP) Projects Account” and let us provide additional cool tools and services to the legal community.  Apparently computer programmers don’t work for free. 

Please contact Stephen M. Nipper at steve@rethinkip.com for additional information.

$99.99/year
$9.99/mo

[update: if you'd like to see what our "beta" test of the data looks like, please check out the old site.]

Welcome CotC---Who is Rethink(IP)?

Posted by Stephen M. Nipper at June 5, 2006 06:00 AM

We’re hosting Carnival of the Capitalists (CotC) again (later today). This will be our second time doing so (the first time was back in September).

We’re also sporting a new design (later today we're told)…if you read via RSS you might want to check out our HTML…

Knowing that most CotC readers probably don’t regularly read law blogs…I thought I’d take the time to prepare a “Who is Rethink(IP)?” post…

We were three of the original patent attorney bloggers: Douglas Sorocco (PHOSITA Blog), J. Matthew Buchanan (Promote the Progress blog) and Stephen M. Nipper (The Invent Blog).

When we started Rethink(IP) the blog, we were three competitors blogging together about a topic all three of us were passionate about: farmshoring intellectual property services. Part of the “farmshoring” discussion is complaining about how other attorneys, usually large firm attorneys, (mis)treat their clients…which itself lead us to spend a considerable amount of time “rethinking” how intellectual property services should delivered to clients.

The fact that we were competitors blogging together intrigued Scobel/Israel enough to garner us a mention in Naked Conversations. However, the “competitors” angle soon took a hit when one of us (Matt) joined on of the other’s (Doug) law firm.

We frequently joke that we all have A.D.D., a condition that results in us frequently creating lots and lots of side projects, crazy ideas, and rabbit chasing. Some of our more interesting projects:

1. RSS Mojo – News and Notices: The Copyright Office for a while now has provided an RSS feed of their news. However, the Patent and Trademark Office didn’t have one. We decided that we’d set out to scrape the USPTO’s News and Notices page and craft a number of RSS feeds therefrom. We thought for sure that the USPTO would release their own RSS feed…it is coming up on a year later and it hasn’t happened yet.

2. RSS Mojo – Lawsuits: On behalf of our clients, we frequently compile and review listings of recently filed intellectual property lawsuits. It dawned on us…why not make this data more available to others. So, we created a weekly feed (RSS/email) of recently filed intellectual property (patent, copyright and trademark) lawsuits.

3. IP Memes newsletter. A free electronic newsletter put out every couple weeks by Technolawyer.com. The three of us author the newsletter.

4. Blawgr. With the help of lawyer blawgfather Kevin Heller we launched an online community for lawyers called Blawgr. It is currently offline for a major redesign and repurposing.

5. ShapeBlog. With Marty Schwimmer (Trademark Blog), Glenn Mitchell and John Welch (TTABlog)…a blog about the intersection of 3-D and the law. Fabrication, rapid prototyping, design…and the intellectual property issues they create.

6. Rethink(IP) Aloud podcast. We even podcast…

7. IP Funny (no, it is not a blog about urinary problems). Yep…we’re the anonymous bloggers (along with an anon fourth) behind the frequently neglected blog about intellectual property humor.

8. Esq Gear. Gear, gadgets, product reviews...for attorneys. Big news coming soon for this site...

9. …and a handful of projects we are not ready to mention just yet.

I’ve always loved Stephen @ Patent Barista’s quote about us: “These guys are like the Army. They do more before 9 a.m. than most people do all day.” If we only had more time...

Of course, it IS a blog. I probably should mention some of our more popular posts:

• Pressuring clients for more work...good idea?
• What’s your definition of a rainmaker? Bullshitter?
• Blackballed. You are the brand.
• Controlling RSS Overload…Animal House Style
• Why? Why? Why? Why? Why?

And that...in a nutshell...is Rethink(IP).

Recently on Rethink(IP)'s RSS Mojo Blog

Posted by Stephen M. Nipper at May 29, 2006 11:38 AM

• Listings of recently filed IP Lawsuits
• Trademark Lawsuit Filing Update (through May 27, 2006)
• Patent Lawsuit Filing Update (through May 27, 2006)
• Copyright Lawsuit Filing Update (through May 27, 2006)
• Trademark Lawsuit Filing Update (through May 21, 2006)
• Patent Lawsuit Filing Update (through May 21, 2006)
• Copyright Lawsuit Filing Update (through May 21, 2006)
• USPTO Notices:
• Patent Prosecution Highway Pilot Program between the United States Patent and Trademark Office and the Japan Patent Office (signed 22May2006)
• Notice of Collection of Practitioners’ E-mail Addresses
• Commerce Deputy Under Secretary to Address Midwest Businesses On U.S. Government Efforts to Combat Counterfeiting and Piracy in China
• USPTO Exam Guide for Geographical Indications Used on Wines and Spirits
• Request for Comments on Patents Search Templates (16May2006)
• Commerce Deputy Secretary to Speak at USPTO's Community Day
• U.S. GOVERNMENT BRINGS ANTI-COUNTERFEITING AND PIRACY PROGRAM TO OHIO

Dominant Design and Lost Profits in Creative Labs v Apple Computer

Posted by Bill Meade at May 17, 2006 02:51 PM

By Bill Meade, President – Basic IP Management, Inc.
bill@basicip.com
http://www.basicip.com

James M. Utterback’s (1994) MASTERING THE DYNAMICS OF INNOVATION is one of my favorite books. Utterback has lately been squeezed between Clayton Christensen’s work on disruptive innovation and Geoffrey Moore’s work on market structure and shareholder wealth management. But, I think Utterback deserves reading by patent attorneys.

First, because, Utterback’s book is just plain fun for a technology person to read. It has competition case histories of the typewriter (p. 1), automobiles (p. 34), television (p. 38), transistors (p. 41), calculators, (p. 42), disk drives (p. 46), and many other one-time high-tech industries. Second, I think Utterback deserves reading because his dominant design model has many uses in constructing defenses and offenses in patent litigation.

Utterback is a theorist of how competition grows and declines in an industry. I strongly urge you to buy this book and read for yourself Utterback’s theory (see end notes). I’m going to do a back-of-envelope summary here, to demonstrate how nicely the theory can be applied to patent litigation, specifically, to Creative Labs vs. Apple Computer. And, hopefully, to spark the idea that recent development in economic theory can be handy tools for patent litigators.

Utterback’s Theory: Dominant Designs

As a new technology is developed, entrepreneurs sense its missing features, think of ways to improve the technology, and introduce new products they hope will be differentiated by their improvements. In most new industries the result is that the number of competitors increases over time. What is really going on here is that an adolescent market is searching, groping, and exploring the technology’s capabilities. As people in the market get their heads around the technology, an optimal combination of features becomes clear. This combination is called by Utterback a “dominant design.”

Once a dominant design becomes available, many industries experience a collapse in the number of competitors. The shake-out-precipitating companies are the Microsofts, the Intels, and the Oracles, that benefit from the natural selection of markets. New market natural selection revolves around optimal packages of affordable features.

Two implications of Utterback’s theory that are significant to a patent attorney and patent litigator are:

• Markets are created by systems. Individual features are not enough to generate a new market. To reach critical mass, to precipitate a new market, a system of features is needed to enable new product use-models that can out-compete old use-models. Entrepreneurs like Thomas Edison often understood this. Edison created much more than the light bulb. He designed the light bulb, the generator, the transmission lines, etc. to compete with the gas industry.
• You have to have end-to-end solutions that reliably meet the needs customers find most important.

Example products that conform to Utterback’s theory are the DC3. Peter Senge in THE FIFTH DISCIPLINE (p. 6) listed the 5 components of the DC3 dominant design as:

1. Variable-pitch propeller,
2. Retractable landing gear,
3. Monocque body construction,
4. Radial air cooled engines, and
5. Wing flaps

In 1934, Boeing introduced an airplane similar to the DC3, the Boeing 247 with all of DC3’s components except wing flaps. Unfortunately, the 247 was unstable taking off and landing so as a product, it was not adopted by the market. The next year, however, the DC3 was introduced and it swept the market. “The DC3 was the first plane to support itself economically as well as aerodynamically” (Senge p. 6) and many are still flying in many parts of the world.

Creative Labs vs. Apple

Creative Labs has sued Apple Computer for patent infringement (of US6928433 Automatic hierarchical categorization of music by metadata) in the U.S. District Court for the Northern District of California (case number 3:06-cv-03218-BZ).

David Pogue wrote a great New York Times article on 3/9/2006 (see end notes) which to a reader of Utterback sums up the elements of the iPod’s dominant design at that date. These elements are:

1. Cool-looking hardware.
2. Fun scroll wheel.
3. Simple user interface menu.
4. Great library of add-on accessories.
5. Effortless synchronization.
6. Rock solid integration with an online music store.

The Creative Labs patent can be seen as an attempt to grab the idea behind element #3: Simple user interface menu. The idea is hierarchical menus based on album, genre, artist, etc.

Rating the Products:

Owning both an iPod (20 gig) and a Creative Labs Zen (40 gig) product I would evaluate the products against Pogue’s dominant design elements as follows:

• both the iPod and Zen have cool looking hardware,
• only the iPod has a scroll wheel,
• both iPod and Zen have simple user interfaces,
• the iPod has a vastly superior add-on accessory library,
• the iPod has fantastic synchronization, and the Zen’s synchronization is bad,
• only the iPod has a great integrated music store.

Dominant Design-Based Lost-Profit Argument:

Assume for the sake of argument that the Zen patent is valid, and that it is infringed by the iPod. I have done no analysis of the validity or infringement. For my purposes, I want to explore the concept of dominant design in defending Apple against a lost-profits damages argument by Creative Labs.

A dominant design argument would go like this: “The iPod and Zen products serve 2 completely different markets: the inexpensive stand-alone portable music player market (served by Zen), and the defacto standard portable music player market (served only by the iPod). Because Zen products do not have:

• a scroll wheel (element 2),
• a large library of add-on accessories (element 4), and
• an integrated music store (element 6).

Creative Lab's products serve only the inexpensive stand-alone portable music player market because Zen products do not meet all the market requirements of the defacto standard. If you bought a Zen product for your teenage daughter and saw her disappointment upon opening it, you may have suspected that the iPod and Zen are not substitutes. Dominant design puts theoretical building blocks underneath exactly why products that look the same are not substitutes.

Because the iPod emboides all 6 elements of the dominant design for the defacto music player market, it precipitated the market's formation. Creative Labs is not entitled to lost profits for the defacto standard market. Not entitled because the defacto standard market would not have formed around the Zen products.

End Notes:

Clayton Christensen (2003) THE INNOVATOR’S DILEMMA, Collins Reprint. http://www.amazon.com/gp/product/0060521996/sr=8-1/qid=1147890825/ref=pd_bbs_1/103-5034715-0679031?%5Fencoding=UTF8

Geoffrey Moore (2005) DEALING WITH DARWIN: Portfolio http://www.amazon.com/gp/product/1591841070/qid=1147890923/sr=2-1/ref=pd_bbs_b_2_1/103-5034715-0679031?s=books&v=glance&n=283155

David Pogue (2006) “Almost iPod but in the End a Samsung” NY Times http://www.nytimes.com/2006/03/09/technology/circuits/09pogue.html?ex=1143003600&en=c0b14704defa6610&ei=5070

Peter Senge (1994) THE FIFTH DISCIPLINE, Currency http://www.amazon.com/gp/product/0385260954/qid=1147890981/sr=2-1/ref=pd_bbs_b_2_1/103-5034715-0679031?s=books&v=glance&n=283155

James Utterback (1996) MASTERING THE DYNAMICS OF INNOVATION, Harvard Business School Press http://www.amazon.com/gp/product/0060521996/ref=pd_bxgy_text_b/103-5034715-0679031?%5Fencoding=UTF8

Rethink(IP) friend needs a job!

Posted by Stephen M. Nipper at March 31, 2006 01:03 PM

We need a BIG favor from our readers.

We've got a close friend who has Fortune 50 IP management experience (including managing the business side of litigation, generating IP, building IT infrastructure inside legal departments, raising the patent ranking (number of issued patents) of said big company by 15 places, etc.) that is looking for a job. This guy is educated in a very cross-disciplinary set of technical backgrounds. He is not a JD.

Does anyone have ideas on who needs a creative mover and shaker to get a corporation’s IP program going?

Anyone know of open IP manager positions?

Reply to Steve (snipper+job@gmail.com) if you do and he'll pass the information on.

Thanks in advance!

Rethink(IP): RSS Mojo

Posted by Stephen M. Nipper at March 28, 2006 12:40 AM

The Rethinkers have more blogs than you could shake a stick at. Seriously...

One of them is called the "RSS Mojo" blog. What is it?

RSS Mojo currently has two components: (1) US Patent and Trademark Office News and (2) IP Lawsuit Filing Updates.

1. US Patent and Trademark Office News

Unlike the Copyright Office, the Patent and Trademark Office doesn't yet have RSS feeds of their News & Notice's page. We've done it for you. You can subscribe via RSS or via e-mail.

2. Lawsuit Filings

We also provide regular updates of recently filed patent, trademark and copyright lawsuits. They are currently provided for free, but will move to a weekly (subscription only) and monthly (free) model in the next few months. You can subscribe via RSS or E-mail.

Interested? Everything you need to know is right here.

Rollyo + IP Sites + Nuevos = Great IP Searching

Posted by Stephen M. Nipper at March 15, 2006 08:11 PM

Back a few months ago everyone was abuzz with "Rollyo." Rollyo is a website where you can enter your favorite websites into a personalized search engine (ROLLYourOwn search engine or "searchroll"). Neat concept, but after some tinkering creating a "Rethink(IP)" Rollyo page containing all of the Rethinker's favorite IP sites and information...we never created a post for it. Oops. So, here it is: Rethink(IP)'s Rollyo page. Here's an example search: "Patent Troll."

The original sources were thrown together based on my bookmarks/OPML file and at that time I was limited to my top X sites. That may have changed, so Matt, Doug and I will go back and update the sources to make sure they are what we think are the best resources.

Today, I (being a part time Mac user) saw mention of a new (to me) Mac program called Nuevos. Nuevos is a search bar (much like you'd see in FireFox for searching Google/Amazon/eBay/etc.) that lets you search a variety of websites from one box.

Then it dawned on me, what if I added Rethink(IP)'s Rollyo page to Nuevos? So...I did. Now, I can easily search IP sites for a phrase (such as "patent reform") and know I won't be buried in splogs or paid avertisements. Only the sites Rethink(IP) picked will be in the results. Very cool.

Here's the code if you are a Mac user and want to create a Rethink(IP) Rollyo search link for Nuevos:

Rethinking Design and Fab(rication) Law

Posted by Stephen M. Nipper at March 6, 2006 07:05 PM

How many blogs do you need to have before someone does an intervention?

Rethink(IP) is proud to announce our latest collaborative blog, no not that one, but the "Shape Blog."

The Shape Blog is a collaborative effort between at least six IP bloggers: the TTABlog, the Trademark Blog, and Rethink(IP).

Rethink(IP) will be heading up the patent (design and utility) wing of a discussion of the intersection of 3D shapes and the law.

This topic is actually very important. As consumers are able to economically fabricate more and more items at home, IP owners that were previously immune to how consumer technology impacts their bottom line are going to have to pay attention. Think about it. If one could merely download a torrent of a part schematic from the Internet and "print" it on their personal fabrication machine (laser cutter, CNC, etc), why would they ever go buy replacement parts (or the original device in general)? Hmm...much gnashing of IP owner teeth ahead.

Here's the RSS feed: http://feeds.feedburner.com/ShapeBlog

Are you a Blawgr? Wanna be?

Posted by Stephen M. Nipper at February 27, 2006 02:18 AM

Last week Rethink(IP) went public with our latest work. A collaboration with Tech Law Advisor blog's Kevin Heller. Called "Blawgr," it is our attempt at a legal community weblog. This blog, which itself is a collaboration between the writers of the Promote the Progress blog, PHOSITA blog and The Invent Blog has left us passionate about one thing: working with other attorneys to create a a larger and larger legal community.

Blawgr is one piece in that puzzle...a community weblog.

What is a community weblog?

It is a weblog where we'll be turning the keys over to YOU...our readers, our peers, our fellow blawgers/law bloggers, our friends. YOU can sign up for an account and make posts and/or comments. As the picture (of my 4 year old Joshua) screams...SAY WHAT??? Yes, I'm sure many of you are thinking "are they nuts??" Maybe. Time will tell.

We're pretty convinced that we are onto something. In the meantime, we hope you will (1) stop by and check Blawgr out and (2) keep an eye on us.

We've got the King

Posted by J Matthew Buchanan at February 20, 2006 11:14 PM

Dennis Kennedy is the undisputed King of Legal Technology.  He’s a big thinker, a visionary and an overall good guy (he even agreed to don the BK costume at the recent BlawgThink 2005 event in Chicago to pose for this great picture).

Over the last year or so, the three of us have had the opportunity to collaborate with Dennis on various projects.  We’ve had a lot of fun (just look at the picture!) and always look forward to our next project with the King.

Soon we’ll be having a roundtable discussion with Dennis about legal blogging.  We’re planning on talking about such hot topics as blog experimentation, things we’ve learned, and things we’d do differently if we were starting today.  We’re going to record the discussion and post it as a podcast on the rethink(ip) blog…so stay tuned.

For a primer on some of the issues we’ll tackle, visit Steve’s excellent post on things he’d do differently, and Dennis’ excellent follow-up post.

The Patent Posse

Posted by Douglas Sorocco at February 17, 2006 10:54 PM

I have been playing around with some of my photos from last fall and ran across this one that I have been a bit remiss in putting up.

Yes, there are actually three of us – and we can show up in the same place at the same time.  This is an image of us (Matt, Steve and Doug – left to right) at BlawgThink last November.  Hobie Swan from MindJet took the photo – so it is his skills showing through in the image.

Now hopefully all our crazy fans will be able to sleep at night!

Return of the Prodigal Son...PatentMojo.com comes home

Posted by Stephen M. Nipper at February 9, 2006 05:36 PM

A long time ago, in a galaxy far far away....

Rethink(IP) owned a website called PatentMojo. PatentMojo was beautiful. It was built in Ruby and allowed you to set up RSS feeds of USPTO patent searches. And then it died...causing much gnashing of teeth. Not only did the site die, but we didn't even have access to the domain name to fix it. Argh. Leave it to three IP attorneys to not get the appropriate copyright assignments in place and copies of the source code. Lesson learned. ;)

Well...I'm pleased to announce that it's back. Sort of. We were able to obtain the domain name, but the code is gone gone gone.

So...if you know of anyone (programmer) who would be interested in helping us get our patent search to RSS site back up and going...please let us know. We'd love to talk with them.

What is Rethink(IP) Up To???

Posted by Stephen M. Nipper at January 5, 2006 10:24 AM

Posting on our Rethink(IP) blog has been light.  One of us changing firms, one of us preparing to be a first time father, all of us dealing with the Holidays and work...we have lots of excuses.

One of our excuses is that we are spending more and more time working over the various side projects we have (which means less time for blogging).  Through these "projects," we hope to build a legal community that will help us achieve our goal of bringing Web 2.0 content to Web 1.0 attorneys.

That being said, one of our "projects" is about to go live.  We are currently beta testing a forum/bulletin board which we have high hopes for.  The goal of the forum is to create an on-line, collaborative discussion community for our readers, legal bloggers and attorneys in general. 

If you are interested in helping us populate the forums with an initial set of forum topics and threads, please drop me a line (snipper@gmail.com) and I'll get you set up.  Thanks in advance.

And then there were two...

Posted by Stephen M. Nipper at November 13, 2005 12:58 PM

Do you know how many times this last week I had to answer the question "so when are YOU joining?" Oftentimes it was the first thing out of their mouths...ever before saying "hi." I was probably asked that question a dozen times at BlawgThink this week. Every time I had the same answer.

Sure, some of you know what I am talking about already, but for those that don't, last week fellow rethinker Matt Buchanan announced that he was leaving his small Toledo law firm to join rethinker Doug Sorocco's Oklahoma City firm (Dunlap Codding & Rogers). Matt isn't moving from Toledo (the question everyone was asking him), but will set up an office there in Toledo.

So....And then there were two "rethinker" firms (Dunlap Codding & Rogers and Dykas, Shaver & Nipper (my firm)).

It is an amazing opportunity for both of them (DCR and Matt), and the collaboration and association will benefit all of their clients. I know Matt. I know Doug. They have very similar experiences, backgrounds and practice areas. The two of them working together, with DCR's resources and assets, to serve their existing clients and the clients they acquire in the future is a truly amazing thing. And I have a front row seat!

So what does it mean for Rethink(IP)?

Nothing really.

Our mission remains the same, as will our content. Don't expect anything trendy (you're not going to see "RETHINK(IP), NOW ON CIABATTA BREAD") anytime soon, but I can tell you that we have some big plans...big I tell you!

So. Back to the original question. When am I joining DCR? I'm not. I have the absolutely best situation I could ever imagine right now. I'm in a growing little firm, working with great people and with great clients. Life is good. Will it keep people from asking? No.

Congrats Matt. Congrats DCR. What an amazing story that has only just begun.

And then there were two.....

Insourcing Quid Pro Quo

Posted by Stephen M. Nipper at November 2, 2005 10:31 AM

Insourcing is one of the main reasons Matt, Doug and I were drawn together almost a year ago. It was a conversation about how to work together to promote the insourcing of patent services to inland patent firms instead of outsourcing them abroad that started this great rethinking project. We've clearly gone beyond insourcing a major Rethink(IP) theme, but that topic is still close to our hearts.

In reviewing my client base recently I noticed something I hadn't seen before (and I'm sure my fellow rethinkers see too in their own practices), namely that the amount of work we are doing for foreign patent and trademark firms has substantially increased in the past few years. Substantially. Maybe The World is Flat has just opened my eyes more to the impact of technology and the Internet on my practice.

I'm not sure whether they are ditching their big city firms and insourcing to the Intermountain West and/or Midwest for customer service, for price, or for other reasons, but it is clearly happening. What amazes me is how quickly foreign IP attorneys get it, but US businesses as a whole don't.

Foreign IP work has traditionally been "quid pro quo," in that "if you send me work, I'll send you work." Perhaps it is due to the low performance of the US dollar or perhaps other factors, but the reality is that having IP work done in the US is as expensive as ever. In my opinion, this is a fact which is causing some foreign IP firms to consider other cost effective ways of protecting their client's intellectual property in the States, and one of those ways is insourcing. The result is that foreign firms are sending lots and lots of work to smaller firms in smaller metropolitan areas, firms that can't possibly support the old school quid pro quo.

Is it the end of "tit for tat" in IP work? I doubt it, but it is sure to have ripples in the market for worldwide IP services.

Other thoughts, insight and comments appreciated (the comments are open)...

Help Al!

Posted by Douglas Sorocco at October 29, 2005 10:48 AM

What a difference a day makes. My wife and I were in San Francisco the weekend that Katrina began to approach New Orleans. We were taking a vacation between the end of my federal clerkship and the start of a new job in September. As we were watching the news on Sunday before the hurricane hit, I thought that Monica and I could just stay on the west coast where I could find some temporary work if New Orleans suffered a direct hit. Apart from my job, we had nothing that required us to be in New Orleans and, if the storm hit, I had good reason to think that the firm wouldn't need me back anytime soon.

After sleeping surprisingly well on Sunday night, I called home to check in early Monday morning. The phone was answered by my tearful mother who told me that my cousin and her boys had been in a wreck the night before, and that my cousin had been killed. A drunk driver evacuating from New Orleans ran a stoplight and broadsided her van. The boys were in the hospital. I immediately went numb, because I knew that my cousin wanted Monica and I to take care of the boys (11 and 7) if anything ever happened to her. Monica and I decided to cut our trip short and immediately headed home.

Fast forward 2 months, we now have custody of the two boys--great kids--and we are living with my parents until we can return to New Orleans. To make matters somewhat more difficult, I lost my job and I have had to start my own practice in a market now saturated with attorneys that are also looking for work.

Despite my efforts of of the last month, I have not been able to locate any regular work. I am now looking for contracting work that can be conducted here in Gonzales, Louisiana. My ability to travel is limited, as my new family is adjusting to school schedules and bed times. I am sharing office space and have access to all the necessary tools to work remotely. Accordingly, I would love to work with a lawyer/firm or two that can provide me steady contract work for the next 2 to 6 months, preferably about 20 to 30 hours per week, to supplement my small case load.

I am a capable researcher and writer and have clerked for a year in federal district court. I also have an engineering degree and four years experience as an environmental consultant. If I might be able to help you, please email me at alrobert (at) gmail.com or give me a call at 504-615-5352. My resume, writing samples, and references are all available upon request.

Can you help Al out? 

I can personally vouch for Al's keen intellect and client-driven outlook toward legal services -- more importantly, Al's spirit and compassion would be of benefit to any project you may have.

The rethinker's firm and the second battlefront: A follow-up to Bill Meade's guest post

Posted by J Matthew Buchanan at October 27, 2005 09:44 AM

We told you Bill Meade “gets it.”

Bill is a fascinating individual who is truly passionate about the development and management of intellectual property.  We consider ourselves lucky to have met him and are looking forward to building on our relationship.

Bill provided us with the Proactive Invention Management article last week — I bet I’ve read it ten times.  His description of proactive invention management as “a war with two fronts” is dead on.  Unfortunately, many organizations don’t recognize the need to deal with both fronts, or, if they do recognize the need, they choose to fight the war only along the first front — the one between the inventors and the IP department.  This choice might be made for any of several reasons, not the least of which is budgetary in nature.

The mantra of these single-front organizations:  Increase disclosures!  Increase disclosures!  Increase disclosures!

Battling that front without addressing the second front — the one of IP capacity — is trouble in the wings.  This is particularly true if you begin to actually win the battle on the first front.  All of a sudden, the organization finds itself with “full access to the genius of the organization,” (Bill’s wonderful language) only to learn that it can’t efficiently process the genius….and valuable intellectual property is lost.

The answer?  As Bill states so aptly – you need to rethink IP business processes and IP business model management.

Now you can see why we’ve grown so fond of Bill.  Not only does he “get it,” but he’s courageous enough to “rethink it.”  Yep, he’s a rethinker, and we love rethinkers.

What can we add to Bill’s article (and theory)?  Simply this — outside patent counsel can help an organization fight the war on the second front.

No, I’m not talking about opening the billables floodgate and adding a massive amount of capacity to the IP department.  That would simply be throwing money at the problem.

I’m talking about help with the rethinking part.

We’ll elaborate more on this in future posts.  For now, consider the following:

• A rethinker’s firm will help you cast a critical eye on your processes…and is courageous enough to return the favor and continually reevaluate its own processes.
• A rethinker’s firm will help you implement changes to your processes…and will follow-through on proposed changes to its processes.
• A rethinker’s firm will offer ideas on how to increase the efficiency of the relationship.
• A rethinker’s firm will help you build specialization…and will spend some of its own money in the process.
• A rethinker’s firm will offer technology solutions that actually improve your processes, not just the latest, must-have, keeping-up-with-the-Jones & Co.– technology.

In short, a rethinker’s firm will help you with the rethinking.

Look for more on this topic in the future, and more from Bill as well.

 

 

Rethinking invention, innovation and incentives

Posted by Stephen M. Nipper at October 25, 2005 05:09 PM

Following up on Matt's post earlier today...it is not often that I come across someone, who (like my fellow rethink'rs) "gets it," but I had the pleasure of meeting one such person a couple months ago.

I was at a CLE on Grokster, where the speaker asked whether any of the attendees in the room had actually used BitTorrent before.  Sheepishly raising my hand, I noticed that there was only one other person in the room who raised his hand....a fact that astonished me.  After the CLE I approached this other BitTorrent user (who I didn't recognize as an IP attorney) and introduced myself.  Bill Meade was his name, former HP employee who had worked extensively on setting up HP's inventor reward programs as well as conducting countless inventor workshops.  The more we talked, the more I realized that he too was an IP rethinker...although from an engineering/inventor side.  We instantly hit it off.

Turns out that after he left HP he set up a consulting business (BasicIP) where he does a wide range of IP development services, including:  creating corporate IP strategies, compiling databases for patent portfolio management, developing rewards programs for inventors (thereby encouraging them to invent more), competitive intelligence, trade secret management, invention disclosure collection, etc., etc., etc.  Consider them IP SeaBees.  He might just be able to help some of YOUR clients generate more invention disclosures and otherwise better capture and protect their IP. 

Matt mentioned:  "Later tonight we’ll describe a project that Bill implemented at HP that met with huge success."  He was referring to an email discussion we had with Bill where he was talking about his involvement with HP's "Invent" program.  Turns out that Bill built HP's automatic invention incentive payment system, a program that resulted in a tripling of inventing within a month, an amazing accomplishment. 

Like I said, Bill comes at rethinking from a completely different angle, bringing his own experiences and opinions to the mix.  So impressed was I with what he was saying that I offered him a soapbox...this blog.  Tomorrow, you'll see his first (of hopefully many) guest posts. 

Until then...

Upcoming guest post - Bill Meade from Basic IP Management

We are pleased to announce another first for Rethink(IP).  Tomorrow, for the first time, we will have a guest author on the blog.

Several weeks ago, Nipper met someone who thinks like we do.  “He gets it” is how Steve described his meeting with Bill Meade, President of Basic IP Management, to Doug and Me on a late night Skype session after his lunch with Bill in Boise.

Bill does get it.  So we got him.

Prior to founding Basic IP Management, Bill served as the laser printer patent portfolio manager at HP and played a major role in that company’s famous “Invent” campaign.  He’s a big thinker with big ideas on the invention process and patent life cycle.

We’re happy to have Bill involved with the blog and hope that you enjoy his post.  Please join us in welcoming Bill to Rethink(IP).

Later tonight we’ll describe a project that Bill implemented at HP that met with huge success.  Tomorrow, we’ll post Bill’s guest article, which will focus on proactive invention management.

Whoa.  Invention management?  Proactive?  Yep.  I told you he gets it.

Stay tuned.

Carnival of the Capitalists on Rethink(ip) - Thank you sir may we have another?

Posted by J Matthew Buchanan at September 7, 2005 11:54 AM

Wow, what fun.  Hosting this week’s Carnival of the Capitalists was an absolute blast.  We had fun reading the submissions and compiling our narration, and had even more fun reading the positive comments, trackbacks and e-mail messages we have received in response to the post.

“Man that was fun.  Let’s do it again.”  Each of us has said that at least five times in the last two days.

Hmmmm….what to do?  Sign up for another, of course.

Done.  On June 5, 2006, Rethink(ip) will play carnival barker again.  We hope to see everyone back here for the second Rethink(ip) edition of the Carnival of the Capitalists.

In the meantime, we hope those new to Rethink(ip) will continue reading this blog and that our regular readers will keep following the Carnival.  After all, no matter where it’s hosted, you know you’ll get a great show with a little local flavor.

Speaking of which, be sure to visit the Carnival next week at Evelyn Rodriguez’s Crossroads Dispatches blog.

 

IP Memes and rethink(ip)

If you aren't familiar with The TechnoLawyer Community...you should be.  TechnoLawyer provides a number of great newsletters, and a forum where "technolawyers" can ask one another questions about technology (i.e., "has anyone every used _______ and what did you think about it?").  It is an excellent resource for all tech attorneys, and has an archive which I have searched from time to time with questions (what scanner to purchase, whether I should upgrade to the latest version of __________, etc.).  The best part?  It is free.  Try it, if you don't agree you can easily unsubscribe. 

Over the past year I have been writing a newsletter for TechnoLawyer called “IP Memes.”  IP Memes is “a weekly newsletter that explores emerging technology-related intellectual property issues — or “memes” as we call them. Think of it as your coal-mine canary for intellectual property issues.” 

Previous IP Memes authors have included Dennis Kennedy, Denise Howell, Gail Standish, Kevin Grierson and Kurt Calia...an amazing group of alumni. 

What excites me is the fact that fellow rethinkers Doug and Matt have agreed to join me as co-authors (starting with the September 26th issue).  The IP Memes newsletter is subscription only...so, if you want to read it, you better subscribe today!

Carnival of the Capitalists - Rethink(IP) Edition

Posted by Douglas Sorocco at September 6, 2005 09:00 AM

Email Subscription Available for USPTO Notices

Posted by Douglas Sorocco at August 26, 2005 11:27 PM

Thank you.  Thank you for the response to our providing the United States Patent and Trademark information, news and notices via email.  It has been great!

One of the major "complaints" that we have received is that we were only providing the information via RSS. RSS is really the information delivery option of the future and we will be pointing the way to some tutorials in the future, but in the interim - give the people want they want. 

So - below is an email signup application.  Simply put in your email address and you will receive all USPTO updates via email.

We value your privacy, just like we value our own.  We will never sell the names of the folks that sign up - so have no fear.  We will not add to your spam burden.

So, sign up and enjoy.  And please keep the feedback coming - it really helps us to know what you need and want.

Enter your Email Address to Receive USPTO News and Notices


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Rethink(ip) makes United States Patent and Trademark Office News and Notices available by RSS

Posted by J Matthew Buchanan at August 22, 2005 11:42 PM

We are pleased and excited to announce that we have created RSS feeds for all news items and notices released by the United States Patent and Trademark Office.

They haven’t done it or shown any intention of doing so, so we did!

Many of our readers will no doubt agree that the Office’s News and Notices site is a woefully antiquated and inadequate means for distributing important information to the intellectual property community.  We believe this site stands as a stark reminder of the Office’s failure to implement RSS technology.  We’ve ranted on this in the past, but have seen no action or commentary by the Office.
 
So we decided to take matters into our own hands.
 
Today we launch the following four RSS feeds that mimic the categories used by the Office:
 
Official Gazette and Federal Register Announcements (feed:   http://feeds.feedburner.com/RethinkIP_USPTO_OG )
General news items  (feed:   http://feeds.feedburner.com/RethinkIP_USPTO_GEN )
Patent news items  (feed:  http://feeds.feedburner.com/RethinkIP_USPTO_PAT )
Trademark news items  (feed:  http://feeds.feedburner.com/RethinkIP_USPTO_TM )
 
A fifth feed includes ALL items for each of the four categories listed above  (feed:  http://feeds.feedburner.com/RethinkIP_USPTO_ALL )
 
Go ahead and subscribe.  Who knows, you might find yourself actually reading PTO news and notices on a regular basis!

We believe this Rethink(ip) project is a great example of a practical application of RSS technology and we hope it will expand the use of RSS throughout the IP community.  We also hope it will grab the attention of decision-makers at the PTO and encourage them to take a serious look at RSS.
 
If you have any questions regarding RSS or how to use the feeds, please contact any of us at the addresses listed on the main rethink(ip) site.

UPDATE: Other IP RSS feeds can be found here.

Guest Blawgers Welcome

Posted by Stephen M. Nipper at August 19, 2005 01:17 PM

Have a rant, observation, crazy idea, complaint about the practice of IP law, or anything else you think our readers would enjoy? Send it to one of us (email addresses at www.rethinkip.com) and if it fits into the rethink(ip) theme, we'll post it. Heck, if you want we can even make it anonymous.

On BlackBerries, Mickey Mouse, importance, and indispensability

Posted by J Matthew Buchanan at August 16, 2005 10:39 AM

A Blackberry as a symbol of importance?  So says Doug in his great post reflecting on a recent trip to the Capitol and commenting on Dennis Kennedy’s Contrarian View of the Blackberry.

I’ll take it a step further – in the right context, they mark those who believe they’re indispensable (or have a fear that they’re completely dispensable).

Start looking.  You’ll see them.

Try this thought experiment — take Doug’s Blackberry-toting important hall-walkers and congressional staffers out of the Capitol building and put them on vacation in a beautiful locale with their family.

In your mind, do they still have their Blackberries?  Are they using them?  How frequently?  What do their kids’ faces look like as they use them?

Ok, you can stop.  I’ll give you the answers:  Yes, yes, very, upset.

I’ll submit this anecdote as proof-

At the end of a recent trip, My wife and I were able to take our boys to Disneyland in California.  We had two days at the park with our two young sons.  No work.  No blogging.  Just Mickey Mouse, cotton candy, and lots of smiles.

I had my cell phone, but it was tucked safely away in one of the backpacks.  Never used it.

I couldn’t help noticing, though, that many other people weren’t able to cut the cord.  I didn’t notice many Blackberries (this is the Hollywood set, mind you, and those Blackberries popular with the DC set are so utilitarian), but I must have seen over a hundred people with earphones connected to their cell phone, which was typically stuffed into a fanny pack or something similar (don’t even get me started on those things).

And they were actually using them!

Here’s one example.  We were waiting in line for the Buzz Lightyear ride (my oldest son’s favorite, by the way).  As we patiently walked the maze, we encountered the same people over and over again (everyone knows how this works).  This one poor guy was with his family as well (wife, two kids).  Like me, he was on sherpa duty (stroller in tow, two backpacks, cameras, etc.).  But he also had a wire dangling from his ear.  On one of our passes, I traced the wire to his backpack.  By the time I met him on the next pass, he had retrieved his cell phone — a Treo 650 — and was holding a conversation about an e-mail he had just received.  He assured the other party to the conversation that he would “chew on that” and promised to “shoot something back in an hour or so.”

Think about the ridiculousness of this situation.  He must have just gotten an e-mail and had called (or took a call from) the sender to tell them that he would respond to the e-mail.  Man, this guy must be indispensable!

(what odds will you give me that he’s a lawyer?)

Meanwhile, the sun shone and his wife struggled to entertain their obviously disappointed kids.

As a father, I briefly felt bad for the guy.  He sacrificed time with his family — which is so hard to get these days — and committed to sacrificing even more (remember, he’s got some chewing to do and an e-mail to write, all in the next hour).  I also felt bad for him as a fellow sherpa.  “Dude, if you’re gonna sacrifice time with the fam, at least make it easy on yourself — shell out the bucks for the wireless headset.”

Then I stopped thinking about it – I had to get back to my business of the day.  My oldest was teaching me how to aim the blasters on the Buzz ride.  There’s this pointer thingy, and you have to….

BlackBerries Run Amok!

Posted by Douglas Sorocco at August 3, 2005 11:14 PM

Dennis Kennedy has an interesting post up about the ever present BlackBerry entitled: A Contrarian View of the BlackBerry. Dennis, in only the way Dennis can, squarely takes aim:

I'm a bit of a contrarian on the whole obsession of lawyers with the Blackberry. See this article on the phenomenon featuring my former law partner Jim Gunn (one of the people who I truly appreciate having gotten the chance to work with during my legal career) for an overview of lawyers' affinity for the BlackBerry. In Jim's case, he has his usual geat sense of humor about the whole phenomenon.

I was talking to Dennis the other day and we were laughing about our recent travel horrors and I recounted to him a story about making a number of congressional visits while in DC last week. I found it interesting to watch two groups of people: the families touring the congressional office buildings and the staffers working in the congressional office buildings. The families were walking around with wide open eyes, smiles and a general sense of wonderment and excitement. In fact - they were the only people who would actually look you in the eye and acknowledge your presence. The parents were usually herding the kids and answering a gazillion questions a minute. Every time someone in a suit or "professional attire" hurriedly walked by staring zombie-like into their BlackBerry, a hushed silence befell the groups as they attempted to figure out if it was someone "important".

Since I usually make most of my visits in the spring, I don't usually get the see the large groups of tourists. It was a blast. Everyone was having fun and genuinely excited to be seeing democracy in action. What does this have to do with the BlackBerry? Well, the staffers, as you could imagine, were clueless as to what was going on around them. Maybe it has become too commonplace for them, maybe it wasn't quite so interesting to be asked for the 5,000th time where the cafeteria could be found. It could be a lot of reasons - but the one thing that struck me as funny was that all of these staffers were hurriedly walking (running) around with their eyes glued to their hands where the ever present BlackBerry could be found. In almost a trance, they move a couple of fingers, scroll a wheel, sigh and move on down the hall. It was almost as predictable as the Oompa Loompa dance moves in the new Willie Wonka movie.

My comment to Dennis: the BlackBerry is now a barometer or indicator of who is important and who is "out of the loop". On that particular warm and steamy afternoon in DC I knew, however, what group was "the important ones" - the kids and families who were genuinely interested in how our government works.

I know that at least one of the kids I saw that day will be a rethinker - and I doubt they will ever think of a BlackBerry as an indicator of "importance".

Remember the bucket

Posted by Stephen M. Nipper at August 2, 2005 01:11 AM

 A couple of weeks ago, Justice Sandra Day O'Connor spoke at a judicial conference in Spokane, Washington. During her speech, she read one of her favorite poems, a poem which has since become a favorite of mine. I include the poem below (with the author's permission, of course):

"There Is No Indispensable Man"
by Saxon N. White Kessinger, Copyright 1959

Sometime when you're feeling important;
Sometime when your ego's in bloom
Sometime when you take it for granted
You're the best qualified in the room,

Sometime when you feel that your going
Would leave an unfillable hole,
Just follow these simple instructions
And see how they humble your soul;

Take a bucket and fill it with water,
Put your hand in it up to the wrist,
Pull it out and the hole that's remaining
Is a measure of how you will be missed.

You can splash all you wish when you enter,
You may stir up the water galore,
But stop and you'll find that in no time
It looks quite the same as before.

The moral of this quaint example
Is do just the best that you can,
Be proud of yourself but remember,
There's no indispensable man.

So. Next time you are patting yourself on the back for the case you won, how many people viewed your blog yesterday, or whatever gets your ego thumping, remember that bucket. [Photo source]

Howdy Again!

Posted by Douglas Sorocco at August 1, 2005 12:45 PM

Well - it has been a long month hiatus, but a little rethinking and R&R does a body good! (Does anyone else remember that Saturday morning cartoon guy who had the anatomically correct pajamas?)

Looks like it has been a bit quiet around here, so I have some new thoughts and questions for y'all that I will be posting throughout the week. I also think you will start to see some improvements and additional features to Rethink(IP), so stay tuned.

A lot of you have also been asking about PatentMojo -- that is a long story for another time. It is quite the cautionary tale, however, so we will be sure to share it with you when everything gets sorted out. For the time being, let's just say that little project is "hibernating" and will hopefully be up and running again in no time.

 

 

 

Collaboration -- what the heck is it?

Posted by J Matthew Buchanan at June 12, 2005 10:50 PM

‘Collaboration’ is, no doubt, a buzzword with a bullet.  We’re being bombarded with products and services that promise to foster collaborative relationships and make existing collaborations more effective.

Great marketing hype.  But let’s get down to basics.  What exactly is a ‘collaboration’?

One listing on Google gives this definition:  to work together and cooperate on a project.

Ok.  Not sure that really helps.  I think its more that just “working together” on a project.  Thinking about it in the context of patent practice, an attorney could claim to be collaborating with a client on a patent project if he simply sent an e-mail or two to the inventors asking a few questions about the invention.  That’s “working together,” isn’t it?  Sure.  But, I don’t think its a collaboration.

It seems something more is required.  But what?

Some would have you believe that the missing “something more” is the right technology.  As if using the right collaborative software package turns every relationship into a collaboration.  Take the patent practice example again.  Using a “collaborative environment,” the patent attorney could post a draft application to the workspace and start a discussion with the inventor regarding the various questions he has.  Once the inventor responds using the discussions in the environment, the attorney could revise the application and file it.  Again, the attorney and inventor are working together on a project.  It’s hardly a collaboration, though.  For me, it seems that they simply eliminated e-mail from the project.  Cool, but not collaborative.

So here’s the disclaimer (sorry for not putting it at the beginning of the post):  I don’t know the answer.  I’m not sure what is needed to transform standard working relationships into full-blown collaborations.

I’m getting an idea, though. Rethink(ip) is a collaboration, I know that.  Indeed, its quite an effective collaboration (slap me if I’m wrong, guys).  So now I’m closely watching it and learning.

Why?  Well, to start, I think it would be pretty cool to give Google a better definition of the term.  Oh yeah, and I think it will help build better client relationships and deliver more effective service.

Along the way, I (we) will try to share some tips on effective collaborations….  We’ll even share some of our experiences with the latest and greatest collaboration software environments (yes, we do have one we use and love). 

Hopefully someday we’ll be able to define the thing.  I am prepared, though, for the possibility that we’ll never be able to actually define it.  I suppose in a worst case scenario, we could just resort to the classic definition of obscenity:  You know it when you see it.

Thoughts on the growth of the Middle Coast for legal services - its more than just our lack of rosewood conference tables

Posted by J Matthew Buchanan at May 25, 2005 10:17 AM

Look at this money quote from Doug’s excellent post on PHOSITA yesterday:

The firms in the “middle coast” are expanding to fulfill a real need: client driven legal services, alternative billing and compensation systems, sanity concerning the number of billable hours required, and service. 

Companies are no longer willing to pay sky-high rates in order to subsidize $100+ per square foot office space rates, unsustainable associate salaries and rosewood conference tables. 

Is that good stuff, or what?

Doug’s post made me think a little deeper about the “middle coast” concept.

Why is the middle coast growing as a destination for legal services work?

I can at least offer a theory as it relates to patent work.

The new expertise has landed in Toledo…and Oklahoma City, and Boise…and Anytown, USA.

Corporate counsel continue to get hammered on legal expenses.  For patent work, India is an option but most corporate counsel that are in a position to consider it are worried about the quality of the craftsmanship.  They’ve been through a patent litigation or two (or twenty) and understand the importance of quality craftsmanship.

The hammering continues, so they slowly look for other options.

And there we are, right in the middle….offering the best of both worlds:

lower expenses (ask — you’ll be amazed!) with the same level of expertise.

I’m willing to guess that the difference in expenses has probably always existed.  But, I think the expertise issue has changed dramatically over the last decade or so.  I’m not referring to expertise in substantive patent law and practice — small firms in the middle coast have always had a high level of legal expertise.  No, I’m talking about technical expertise.

In the past, technical expertise meant engineers.  Lots of engineers.  And physicists.  Middle coasters had access to these people and therefore had the technical expertise that allowed them to compete.  But, in the last 30 to 40 years, the requirements for technical expertise have changed.  Now, patent firms must offer skills in biology, chemistry, computer science, and other developing fields — the new expertise.

Over the last several decades, big firms seemingly had a lock on this new expertise.  They gobbled up newly minted lawyer-PhD's in all of these new fields.  They took their push for the new expertise even further by hiring squads of non-lawyer PhD’s and resurrecting patent agent practice in the process.  For awhile, the middle coasters couldn’t compete…geography, money, culture and many more criteria heavily favored the big city.

But that’s changing.

All of a sudden, experts in these new fields are staying in the middle coast.  For some, the middle coast is home, making it an easy decision.  For all, its a different way of life — the sanity Doug mentioned in his post.  Have you heard?  We’ve got PhD microbiologists in Toledo now (and I’m not just talking about my wife!).  Doug has ‘em in Oklahoma for crying out loud.  That’s a little tongue-in-cheek, of course, but the point is that big cities — and big firms — no longer have a lock on the new expertise.

This changes everything.  All of a sudden, when big city and middle coast firms are compared, the spotlight shines almost exclusively on expenses, which is where we really shine.

There is another feature that attracts companies to large firms (which are typically big city firms) — raw capacity.  You want 35 associates to handle your patent prosecution needs?  There’s a big firm or two (or twenty) that can do that.  In fact, they’ll make sure those associates start on it tomorrow evening.

None of our firms, individually, can do that.

But our network can.

 

 

Battle of the Sexes?

Posted by Stephen M. Nipper at May 17, 2005 01:31 PM

Following up on Matt's earlier post on "change" in Fast Company magazine ...

One of the articles that caught my eye was "I am Woman (I Think)." In that article, blogger Jory Des Jardins (blog) discusses her experience in working in a male dominated business. She observes that men (what a rethinker would call "old school") think that business must be done by "taking control of conversations" with clients (instead of listening) and that business deals are won based on "chutzpah, because we were aggressive, because we had balls."

She didn't agree. She wanted to rethink how business was done. She wanted to listen to clients. She wanted to build relationships instead of bossing clients around. She just didn't fit in...rethinking herself out of a job (she quit).

So...a question. Is this issue "old school" vs. "new school" (rethinking) OR is it men vs. women?

Odds of change are dismal - bad news for the rethink(ip) team?

This month’s issue of Fast Company magazine (a rethinker’s favorite) includes an excellent article on change.  It opens with a simple question — what if you really had to change?  I mean really change.  As in, your life depends on it.

The odds, according to FC, are a dismal 9 to 1.  “That’s nine to one against you.”

Lot’s of facts and figures to back it up, too.  Apparently 90% of heart-bypass patients can’t change their lifestyles…despite the health (and vitality) risks presented by continuing with current behavior.

Wow.  Must be frustrating to be a cardiologist.

Are these odds bad news for us rethinkers?  After all, we have a lofty goal of changing the practice of intellectual property law.

Each of us knows that change is tough.  It’s not accomplished overnight and it’s usually somewhat painful.  But, with hard work and a continuous effort that always keeps an eye on the prize, it can be accomplished.  And when it does happen (or, more appropriately, when the ‘changers’ realize that it has occurred), it can be beautiful.  And powerful.

Yes, I said beautiful.  Think about it:  Tivo.  Minimally-invasive medicine.  The Simpsons.  Satellite radio.  iTunes.  Blogging.  Plastic.  Hybrid vehicles.  Camden Yards.

So, no, we don’t view the odds against change as bad news.  They are simply the scope of the challenge.  It’s a big one, we’ll admit that, but it’s not like we’re dealing with life and death decisions…

…are we?

 

 

 

del.icio.us links for 2005-05-08

Posted by Douglas Sorocco at May 8, 2005 02:20 AM

• CorporatePR: Generalists: Renaissance People
  Maybe the ultimate embedded patent attorney should be thought of a "renaissance person" - competent in their area of practice and passionate about your business and success. The icing on the cake - they have interests outside the law …
  (tags: metaphors pr renaissance tech service rethinkip embeddedpatentattornet)

Updates on Rethink(IP) - Eavesdrop

Posted by Douglas Sorocco at May 7, 2005 02:06 PM

We had a snafu on the auto-posting over to the Rethink(IP) – Eavesdrop section this past week that was keeping the posts from showing up on a regular basis.

That is now fixed and our most recent conversations and answers to reader questions are up.

Take a look and keep the great questions coming.

Rethink(THIS!)

Posted by J Matthew Buchanan at May 6, 2005 09:39 AM

We’re talking about adding a feature for quick-take rethink items, sort of like fortune cookies from your favorite rethinkers.  These little gems are designed to stimulate the rethinking juices.  They’ll be short and sweet (we reserve the right to expand on them in future posts, though…).  As always, we welcome and encourage comments on all posts on the blog, including these.

We’ll be adding a design feature to the blog that sets these Rethink(THIS!) posts apart from others.  Yesterday, a long flight home from Boise (visiting fellow rethinker Steve and giving a presentation on patent reform) gave me plenty of time to brainstorm several of these little gems.  I can’t wait for the next round of blog improvements, so I’ll offer one up in my next post today.

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.

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.

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.

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

Posted by J Matthew Buchanan at April 14, 2005 09:58 AM

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.

thank you for such a great opening weekend

Posted by Douglas Sorocco at April 12, 2005 08:22 AM

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

Announcing the rethink(ip) blog

Posted by J Matthew Buchanan at April 8, 2005 07:49 AM

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.