IP ADR Blog

(Socrates image links to a fine article on "Intellectual Cheerfulness" here)

As Dr. Leigh Thompson of the Kellogg School of Management at Northwestern University has informed us, only seven percent of negotiators seek information that would reveal the other parties' true goals and aspirations when it would be dramatically helpful to do so.

That should make every negotiator stop in their tracks.  It means that 93% of us are not doing what we need to do to dramatically improve our own or our client's negotiation position.  93%.  And it's not like we're failing to do so because we also haven't yet discovered the cure for cancer.  No.  This is easy.  It just needs to be learned and then practiced.  

The Negotiation Guru in a post from last year on How Socrates Would Negotiate, leads with the spot-on observation that we're not asking strategic questions in a way calculated to obtain the information Dr. Thompson tells us we need to get the best deal.  (On a similar topic, see my recent post on How to Negotiate with Irrational People).  For now, an excerpt from the Guru's post and a link to the article itself.

The problem with many negotiators is that they do not direct their questions towards a certain purpose. The art of questioning has to be strategic. To be truly prepared, you need to put some thoughts and time into the type of questions you direct to the other party. Work out the questions with a strategic plan in mind.

Many negotiators believe that by proving inconsistency in the other party is strategic and tactical. They cannot be further from being strategic. When you show that you are trying to provoke them in your questions, you turn on the defensive mode of the other party. You put them on guard and that is not something you want to achieve during a negotiation. As the other party starts to get defensive and closes up to any form of conversation, the negotiation will go nowhere.

The true art is to make the other party open up to you.

Continue reading here.

Upcoming will be ways to integrate these negotiation techniques with your IP settlement negotiations.  Stay tuned!

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Mediating a fairly run-of-the-mill commercial case – a fight over the sale of an import business --  a federal settlement officer slowly begins to conclude that the parties are bargaining over the value of a business that trades in counterfeit Louis Vuitton and Gucci handbags.

Is this the moment when the mediator asks herself, if I’m carrying a pricey Prada, should I push the parties out of my pad?

But that’s the Carrie Bradshaw question.

The mediator’s questions go more like this: as a neutral mediator, do I have a duty to: (a) chastise the parties for engaging in illegal conduct; (b) recuse myself to avoid participating in the creation of an illegal agreement; or (c) inform the parties that any settlement reached might not be enforced?

Before answering these difficult questions, consider the recent case of Hye Young Yoo v. Sue Jho (Calif. Court of Appeal, 2nd Dist).

Yoo, the purchaser of a counterfeit handbag business, sued the seller after investigators confiscated the counterfeit goods, which naturally caused the business to fail. Yoo wanted some or all of her money back and the trial Court (wearing black polyester) agreed -- to the tune of $103,250.

Not surprisingly, the appellate court, slightly more Manolo Blahnik but nevertheless also sporting black polyester robes, held that when it comes to illegal contracts “the law will leave the parties as it finds them.” Id. In Yoo, leaving the parties the way the Court found them meant some pretty good times for the defendant. She stole Gucci and LV designs, sold them to (unsuspecting?) customers and made a cool $400K at a time when she was likely looking over her shoulder for the law to close in.

So, what’s a neutral mediator to do?

For the tentative resolution, click here.

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Qwest Communications is Corporate Counsel's Best Legal Department of 2008.  And it's not because Qwest is the fiercest fighter in the litigation jungle.  It's partially because Qwest used its in-house negotiation talent to settle a $40 billion lawsuit for $400 million.  

As the cover story Vision Qwest recounts, Qwest's General Counsel, Richard Baer, said his department, not outside counsel, would "take primary responsibility for handling the difficult, often tense, negotiations with the investors" after CEO Joseph Naccio "resigned  amid rumors of fraud and insider trading."

"It was very important that plaintiffs lawyers understood that the company is made up of people, good people," Baer says.  "We tried to humanize the company the best we could."

One of the ways Baer accomplished not only the settlement of life-threatening litigation but the revival of a company on the rocks was to bring far more work in-house and to remain closely involved in those cases being handled by outside counsel.  Last year, for instance, Qwest,

resolved 61 percent of litigation matters and 76 percent of employment matters without using outside counsel.

When Qwest lawyers do hire outside attorneys, they remain closely involved in the cases, says Brian Roche, a partner at Reed Smith, which handled recent trademark litigation for the company. "When you combine their deep knowledge of the company with the trial skills of an outside firm, you get the absolute best for your client," Roche says. "You'd think it would be more common. But it isn't."

This is a must-read article for anyone who wants to be next's year's best legal department or who wants to know how to work best with it as outside counsel.

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This treatise assumes you've reached agreement in principle or won a judgment or verdict in a patent infringement dispute.  Looks like an invaluable resource.  Patent Infringement Compensation and Damages.  Link here.  Publisher's description below.

When a patent has been infringed, there's usually a price to pay, whether it's the result of a trial verdict or a negotiated settlement. Even when compensation for patent infringement is a certainty, determining the right amount is a complex matter involving the interplay of many legal and financial variables.

Patent Infringement: Compensation and Damages is a complete, concise and detailed guide. Beginning with the assumption that a patent has been infringed, it explains the seven steps of determining patent infringement damages. In each, it shows you the method used, the possible variations, the unique patent law doctrines that may apply and the strategies to consider. It also examines how awards of damages are treated under accounting rules, helping you seek terms that will be most advantageous to your client from an accounting standpoint.

From estimating lost profits to introducing the testimony of expert witnesses, Patent Infringement: Compensation and Damages equips you with legal and practical insights that will keep you one step ahead of opposing counsel. Don't try or settle another case without it

This book is updated as needed, generally two times each year.

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Take a look at the new LexisNexis Copyright Law Center where we're pleased to be featured along with our friends at IPKat, the first Blog to welcome us to the IP Blogosphere.  Here's what LexisNexis has to say about its new Copyright Law Center:

We take pride in associating with the best talent in the legal world, so we are thrilled to include you as part of this dynamic new platform that features commentary from experts and gives visitors to the site the ability to interact with the content and one another. Also featured on the site is real-time copyright news, blogs from internal teams at LexisNexis and outside contributors, and news about attorneys, firms, and corporations, plus delivery options, including RSS feeds, podcasts and email alerts.

The selection of your blog was made by the Copyright Team responsible for the Matthew Bender Copyright publications as one of those most often visited, referred to and relied upon. . . .

Thanks LexisNexis!  We'll be nosing around the Copyright Law Center ourselves in the coming weeks.  Appreciate your including us.

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I've always said that the biggest lie in any business is "I don't take it personally."

It seems that some personal-offense-taking may be one of the reasons the lawsuit between billionaire J.K. Rowling and Fan-Lexicon-Site-Builder Steve Vander Ark has not settled (covered by our own Mike Young here and here). 

See Tim Yu's Talk of the Town piece Fan Feud in this week's New Yorker for the slight that may account for taking this spat to the bitter end.  Excerpt and link to full column below.

Last summer, at a “Harry Potter” convention in Toronto, a fan named Steve Vander Ark made a similar mistake when he dared to compare himself to Joanne (J. K.) Rowling. “It is amazing where we have taken ‘Harry Potter,’ ” he said to a crowd of dedicated “Potter” fans. Many readers dislike the epilogue in the final book; Vander Ark urged them to disregard it entirely, and even invented his own spell to do so (“expelliepilogus”). “Jo’s quit, she’s done,” he told the audience. “We’re taking over now.”

Comparing yourself to a living god can be risky, and Vander Ark has suffered cruel fates, in court and in the world of “Potter” fandom . . .

Continue reading here.

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A little slow on the uptake here in alerting U.S. readers to the official launch of the Anti Copying in Design organization's U.K. Mediate to Resolve service.  Illustration and excerpt direct from IPKat.  Mediate to Resolve's list of Mediators here.  For full IPKat post, click here. 

Not a side issue but an event in its own right, the official launch for ACID's Mediate to Resolve scheme was one of the reasons for the cork-popping at that organisation's 10th birthday party in London last week.

Right: handled properly, a good mediation can produce amicable, workable arrangements even between even potential foes

For the uninitiated:

"ACID’s (Anti Copying in Design) national Mediate to Resolve service for dispute resolution is based on the organisation’s extensive experience handling mediations. Just under 2,000 ACID mediations have taken place, of which less than 30% have required further legal intervention. ACID’S national network of Accredited Mediators offers a wealth of intellectual property dispute resolution experience. Their mix of negotiation style and skill provides a comprehensive service to those seeking mediation as a real alternative to litigation.

Many organisations are not familiar with the stages of the mediation process – and there is no reason why they should be – until they need it! We hope this booklet will clarify the use and process of mediation and help to explain the route to dispute resolution. At ACID, we are frequently asked “What mediation is and how does it work?” Mediation is a confidential meeting between two parties who are in dispute which enables them to retain control over the outcome. They are guided through the process by a skilled mediator who will use his or her expertise to restore or rebuild a harmonious relationship, but has no authority to impose an outcome.

These days the demands on businesses to succeed and grow are severely hampered by the increase in intellectual property infringement. Taking action against those who seek the fast track to market through IP theft places huge fiscal and time restrictions on the day-to-day running of organisations. ACID has spent the last decade encouraging parties in disputes to seek mediation sooner rather than later and Government is now sending a strong message to judges to look more favourably on disputing companies who seek mediation prior to any court applications". . . .

Continue reading here.

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R. David Donoghue over at the Chicago IP Litigation Blog is hosting a "Carnival" of Blogs that is new to me -- The Carnival of Trust.  

As David explains:

The Carnival of Trust is a monthly, traveling review of ten of the last month's best posts related to various aspects of trust in the business world. It is much like the weekly Blawg Reviews that I post links to and have hosted, but those generally contain far more than ten links. My job this month was to pick those ten posts for you and provide an introduction to each post that makes you want to click through and read more.

We're pleased that our sister blog -- Settle It Now -- is included in the category Trust in Leadership and Management along with Charles H. Green's Trust Matters; George Ambler's Practice of Leadership;  and Stephen Albainy-Jenei's Patent Baristas  (if they gave awards for blog template design, PB would win in my book every day of the week).  In this crowd I feel like Zelig!

Here's David's generous mention of the Settle It Now Negotiation Blog and my recent post on convincing your clients to give up more than you (their attorney) predicted while still maintaining your credibility.

On the subject of trust-based leadership, Victoria Pynchon at the Settle It Now, Negotiation Blog has an excellent guide for maintaining your client's trust during a difficult negotiation: How Can I Convince My Client to Lose More than Predicted and Still Maintain My Own Credibility? The answer is complex and multi-faceted, but it boils down to the fact that you have to get the stakeholders and decision makers face-to-face, get their buy in on resolution as a goal (in addition to winning), explore all avenues of resolution, and you have to let them explore all aspects of the dispute, even those that do not matter. The last point is a difficult one for lawyers. As a lawyer you generally want to remain focused on the settlement inputs -- money, confidentiality provisions, sale of existing product if something about the product is being changed, etc. -- but from a trust perspective it is important that the stakeholders resolve not just those issues that go into a final agreement, but any problems or concerns they have related to the dispute or the parties to the dispute.

And let me just add here -- though I'll sound like a broken record to my regular readers -- that business people seek out lawyers because they believe themselves to be victims of injustice. (see my short-short video on this topic here)

Though I, as a mediator, am always seeking business solutions to legal problems, the client's injustice problem must be addressed to maintain your credibility (and retain your client's trust.).  Every great mediator I know will address this issue with your client unbidden.  If you're using less than great mediators --  raise the issue yourself -- all competent mediators should be prepared to address the issues foremost on your client's mind right including -- Will I lose?  How much more is this going to cost me? and Am I Being Extorted or Low-Balled?

Thanks for the mention, David!  We're happy to see Settle It Now mentioned by an IP Blog as influential as yours.  Every IP dispute involves the same issues as every other commercial dispute, requiring the parties to go beyond their legal positions; explore all of both parties' commercial interests; create value from potential business synergies; claim as much of that value as possible; craft business solutions to legal problems; and, frankly address the injustice issues that led your client to seek you out in the first place. 

They'll be yours for life.

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