The IP ADR Blog : Intellectual Property Alternative Dispute Resolution Lawyer & Attorney : IP ADR : The IP ADR Blog

I'm not certain whether all of my IP ADR colleagues think business method patents are . . . well . . . ridiculous like I do, not to mention yet another way to stifle innovation,  ingenuity and the collaborative commercial spirit that made our economy great, but they'll have to weigh in now if they don't agree that this is very good news American business  . . . . 

Tech Crunch tells us today that Your Business Method Patent Has Just Been Invalidated, and not a moment too soon for an ailing economy, say I.  Snippet below.  Click above for full article.

If you are one of the recipients of the 1,300 business method patents issued in the U.S. last year, or the thousands more that have been issued rampantly and indiscriminately over the past decade, you are probably out of luck. The U.S. Court of Appeals in Washington, D.C. ruled today that business methods are not patentable unless they meet fairly narrow rules. What this means for Internet companies and patent trolls alike is that many of their existing patents may be invalid—at least until the case is heard by the Supreme Court, assuming it is appealed.

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Over at the Settle It Now Negotiation Blog, I've asked legal bloggers in every State to post a page devoted to helping voters exercise their right to participate in re-creating the government by consent that a democracy guarantees us.

Because I'm in Nevada, I posted Nevada voting information on the negotiation blog.  You can also find voting information for Illinois, Nebraska, Texas and New York as I write this post for Californians.  Hopefully, we'll have the entire country covered by day's end.

Find your California voting precinct by clicking here!

In California, you might be required to:

1. PROVE YOUR IDENTITY
   1. your voter registration affidavit was required to include your California driver’s license or state identification number or the last four digits of your social security number if you did not have a current and valid California driver’s license or state identification card.
   2. First time voters who registered by mail and DIDN'T provide this information at the time may be required to show a form of identification when they vote.
2. TO SEEK CALIFORNIA VOTER ASSISTANCE contact your county elections official who you can find here.
3. IF YOU DON'T KNOW WHETHER YOU ARE REGISTERED TO VOTE  contact your county elections office.
   1. The registration deadline was October 20 in California so if you are not yet registered to vote in California, you may not vote. 
   2. If you are registered to vote in another state, google "absentee ballot" with the name of your State to see whether you can still vote absentee. 
4. VOTING BY ABSENTEE BALLOT IN CALIFORNIA
   1. it's too late to obtain an absentee ballot in California
   2. if you already have an absentee ballot, it MUST be received by the county elections office by the time polls close on November 4 at 8:00 p.m.
   3. Late-arriving vote-by-mail ballots are not counted.

IF YOU'VE LOST YOUR VOTER ELECTION GUIDE, HERE IT IS ON THE INTERNET

A lot of first time voters in Nevada (where I've been for the last week+) are voting only for President because they do not understand the issues.  We here at IP ADR urge everyone to acquaint themselves with all of the issues (see election guide above) so that your voices can be heard on all critical matters facing the voters of the State of California this year.

Nearly all of us fought for the right to vote at some point in American history.  My own grandmother was able to vote in the first general election after which women achieved the right to cast a ballot.  Honor those who fought for our rights and honor yourself as a knowledgeable citizen with the power to make a difference in your own life and the lives of those you care about.

VOTE ON NOVEMBER 4!

More resources:

The California League of Women Voters

The California Voting Rights Act of 2001

Proposition 8 Voting Guide Materials

Presidential Candidate Statements

General Information on Provisional Voting (.pdf)

Advice to First Time Voters (.pdf)

What if We Had an Election and Everyone Came? (.pdf)

NPR's Election Issues Page

And for those who are really into it -- the Election Law Blog.

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Guest Blog Post by Tamera H. Bennett

Thank you to Victoria Pynchon for allowing me to be a guest blogger. In preparing to write the post I had several topics going through my mind, but I thought it would be interesting to pitch this topic out to the fantastic readers of this blog for some feedback.

This may be the first blog post that asks more questions than it answers.

Is the IP arena ready for the “Collaborative Law” process?

You may be asking what is “Collaborative Law?” A colleague of mine that has been in a trademark transactional/litigation/mediation practice for over 25 years did not know what I was asking about when I posed the same question.

“Collaborative Law” is an approach to resolve disputes by removing most, if not all, of the court house adversarial nature of litigation. It began in the family law arena and numerous states now have statues codifying the process for family law matters.

The ABA states:

The process is a structured, voluntary, non-adversarial approach to resolving disputes. The process is based on cooperation and team work, full disclosure, honesty and integrity, respect and civility, and parity of costs. The collaborative process enables individuals, families, businesses and organizations to maintain control over their relationships with others by empowering them with the ability to peaceably resolve their disputes.

You can read more about how the ABA is assisting in developing the practice area here.

In Texas, after one party files for divorce, the parties may agree to move into the Collaborative Law process. At that point the parties enter into a participation agreement outlining how they will behave and what is expected of them.

Below are the typical points to the participation agreement you will find in most statutes:

1.      The lawyers will not litigate the case. If the process fails, and litigation is the only recourse, the original lawyers must withdraw and the parties must retain new lawyers (the "disqualification" provision);

2.      Neither party will take advantage of mistakes by the other side;

3.      The parties will freely disclose all pertinent information and will not hide any material facts;

4.      What is said in the settlement meetings remains confidential;

5.      All experts will be neutral, and hired jointly by both parties and their children; and

6.      Everyone will behave courteously and in good faith.

The process should help eliminate that “hide the ball” and bury the other side in discovery mentality. One of the reasons it has taken off so successfully in family law is because there is a pre-existing relationship between the parties. In the event there are children impacted by the divorce, there are also good reasons to play nice because of the continued relationship of the parties. 

Back to my original question.  Is the IP arena ready for the “Collaborative Law” process?

Although there are more than three types of IP disputes, I am going to generalize them into three categories:  Infringements, Inter-related Parties/Joint Owners, and Contract Disputes.

1.  Infringement Actions: My gut tells me that in unrelated third party infringement actions we are not ready for the Collaborative Law process. Would an alleged infringer readily come to the table to settle the dispute? In this scenario, there would have to be an admission of infringement and the only issue remaining would be damages before I believe the parties would even come to the same table.

Would an alleged infringer really walk in the door with all of its accounting records and allow a jointly approved expert analyze them for a determination of profit? Probably not.

What happens to statutory damages and attorneys' fees? By the nature of electing the Collaborative Law process has the plaintiff given up statutory damages and attorneys’ fees (when appropriate) unless they then move out of Collaborative Law and back into the litigation system? I think so.

Could we move the owner of the copyright/trademark/patent and the alleged infringer into interest based talks as opposed to position based arguments?

2.  Inter-related Parties/Joint Owners: This is an area where I believe the IP practice field is ready for Collaborative Law and could embrace the process for helping their clients. 

How often do we face the dispute of two or three business owners wanting to remove a partner/shareholder or wanting to dissolve the business completely? In the division of assets the question becomes who really owns the copyrights, trademarks, patents, trade secrets, the website, the domain name, and on and on.

Typically one or more of the shareholders wants to continue the business and needs certainty as to the assets he controls before he moves forward. The scenario begins to sound more like a divorce, and often that is exactly what we tell our clients. Like a divorce, there was a prior relationship and like a divorce there are “kids” of the marriage that will need to be taken care of and raised after the fact.

If there is no truly “bad actor,” I believe Collaborative Law will work well in inter-related disputes. The books and records are already available to all the parties. The parties may need to hire several joint experts: a legal expert to analyze the ownership of the IP and a valuation expert to determine the value of the IP and the business as a whole. In the family law field, there is also a communication coach/expert to help the parties express themselves and work together. This could also be an option in IP/business disputes.

3.      Contractual Disputes: I am still undecided on where I fall on contractual disputes. Like a divorce, there is a prior relationship and most likely a continued desire to work together in the future. You are more likely to have a balance of power issue in contractual disputes than in inter-related parties dispute. In a licensee/licensor relationship, if the licensor files suit because there is breach of contract related to royalties, will the licensee simply hand over the books and records and agree to one expert’s report?

Can you move a licensee and licensor into interest based talks? It seems more attainable in a contractual dispute than in an infringement action. Again, it is probably only feasible if the parties will continue to have a relationship after they reach a resolution.

I have asked more than I have answered. When I first learned about Collaborative Law three years ago, I thought it could be an amazing process for areas beyond family law. I would enjoy your feedback on whether or not you think it could work for our IP clients.

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Turns out the term "Hollywood Contract" is not an oxymoron after all.  Not if you follow the three-part series Why Every Writing Team Should Have a Written Collaboration Agreement over at Theater and Entertainment Law.  And don't think you don't need one of these if you are part of a young writing team just starting in business with a friend.  I recently mediated a litigated dispute between two life-long friends with the loss of the friendship being the highest cost of the parties' failure to spell out the terms of their agreement.

An ounce of IP Prevention is worth a pound of litigation cure. 

As blogger and entertainment attorney Gordon P. Firemark explains:

In the absence of a collaboration agreement, the parties may or may not be considered partners. The work they create may or may not be considered a “joint work”, and thus ownership and control of the disposition of the work called into question. While it is true that these issues tend only to arise in situations where the team has broken up, or is in the process of doing so, the existence of a collaboration agreement can be useful in managing the parties’ separation. In some respects, a collaboration agreement is the creative team’s equivalent of a prenuptial agreement. But in many cases the collaboration agreement can be much much more.

By negotiating the terms of the collaboration agreement at the outset of the work, the parties can uncover differences in their expectations, and avoid problems that might otherwise arise later. In the absence of a collaboration agreement, the parties’ efforts may be lost if there’s no meeting of the minds, and the project may simply wind up being abandoned… or mired in litigation. Obviously, it is important to work with a lawyer to craft a workable contract that’s tailored to your team’s specific circumstances.

Continue reading here.

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A truly excellent post over at IP Asset Maximizer Blog on reducing legal expenses while still protecting your inventions.  To give you a taste before you speed on over there, blogger and self-described "Intellectual Property and Patent Business Strategist and 'Recovering Patent Lawyer'" Jackie Hutter suggests that the "disciplined" entrepreneur will

obtain[] patent rights that are adequate, but are not so broad as to fully protect the upside opportunity associated with the innovation. The risk to such an approach is that if the innovation is a runaway success, the patent rights may not be broad enough to fully exclude competition. Few product or technology innovations are truly runaway hits, however, so the organization that decided that not all patents must be gold-plated would probably come out significantly ahead in patent legal spends.

To business people, we attorneys can seem like overly anxious mother (and father) hens in the provision of both transactional and litigation services.  I learned this early as a paralegal (back when New York City was bankrupt and Times Square truly frightening to the 23-year old who took her lunch breaks prowling mid-town Manhattan).  Though I worked for the head of the litigation department, my desk was outside the door of the attorney who advised Uniroyal about the potential problems posed by their advertising.  He made the litigators look like pussy-cats, shouting on a daily basis at whoever it was in the ad department who just wanted a little room to create, man, and the "suits" were always worrying about liability for goodness sakes when it didn't much matter if someone sued you if you weren't selling any $%#@^% tires!! (or Sperry Top-Siders).

So remember, everything in moderation.  As Jerry McGuire's infamous mission statement exhorted:  fewer clients; less money. 

(by the way, that's my good friend Russel asking "do you know your name?")

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Apparently I was in a coma in March of this year when "the press went crazy for Martin A. Nowak’s study on the value of punishment."  As Scientific American recently reminded us

A Harvard University mathematician and biologist, Nowak had signed up some 100 students to play a computer game in which they used dimes to punish and reward one another. The popular belief was that costly punishment would promote cooperation between two equals, but Nowak and his colleagues proved the theory wrong. Instead they found that punishment often triggers a spiral of retaliation, making it detrimental and destructive rather than beneficial. Far from gaining, people who punish tend to escalate conflict, worsen their fortunes and eventually lose out. “Nice guys finish first,” headlines cheered.

See Using Math to Explain How Life on Earth Began here.

What does this have to to with IP ADR?  Plenty!

When negotiating the settlement of an IP dispute, framing your proposals as rewards rather than threatening further punitive litigation strategies and tactics will  make the other guy far more likely to engage in collaborative problem solving and your client far more likely to praise your extraordinary litigation skills.

Special note to mediators and settlement judges:  this should put the last nail in the coffin of the "litigation is risky and expensive" settlement strategy.

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Which Presidential administration do you think might be smart enough to do that?

Go to Wired to Vote:  Who Should Be the First U.S. Copyright Czar, then vote for the team with sufficient wisdom to appoint the right person.  Excerpt from Wired post below; full post at link above:

On Monday, Bush signed the "Enforcement of Intellectual Property Rights Act" creating the new position — an official on equal footing with the U.S. drug czar. The copyright czar is charged with implementing a nationwide plan to combat piracy and "report directly to the president and Congress regarding domestic international intellectual property enforcement programs."

We've started the list with a few of the usual suspects on both sides of the copyright debate. Make your own nomination below, and vote up or down on others as you see fit.

To cast your Czar Vote, click here.

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Can a law professor be a lawyer's hero?  I have just two words for you: Larry Lessig.

See Peter Black's Freedom to Differ post today on Lessig's WSJ editorial on changing copyright law for the better and for the good.

Just one of several suggestions below.

Deregulate "the copy": Copyright law is triggered every time there is a copy. In the digital age, where every use of a creative work produces a "copy," that makes as much sense as regulating breathing. The law should also give up its obsession with "the copy," and focus instead on uses -- like public distributions of copyrighted work -- that connect directly to the economic incentive copyright law was intended to foster.

Speaking of change .... what was the prevailing dispute resolution technology when Columbus sailed the ocean blue in 1492?

In England, trial by jury!

What's the prevailing dispute resolution technology today when we celebrate Columbus Day* more than 500 years later?

Trial by jury!

So I was just wondering ....... whether we might be able to convince Lessig to head up the LegalTED Conference Steering Committee for 2009.  I'd like to sign Bruce McEwen of Adam Smith, Esq. for the Steering Committee as well, for his unbelievably great analysis of the Heller collapse (which I observed up close and personal) and for this:

Are, then, the 19th-Century notions of "conflicts" a barrier to globalizing and consolidating law firms? If you want my view, it's that clients seek concentrated--not dispersed--expertise, and that deep and long-standing industry knowledge is precisely where competitive advantage comes from. This stands "conflicts" on its head, and says that clients seek depth, not shallowness.

As well as for noting that, um, clients are adults!

From Clients are Extraordinarily Understanding (h/t to Diane Levin's brilliant and comprehensive Blawg Review # 181 here)

_________________

*  Click here for the counter-narrative.

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See what IPKAT's talking about when it notes its fascination with the music industry's efforts to "develop new business models" in its post  on the formation of the Featured Artists Coalition. IPKAT comment below.  What excites the KAT at the link above.

The IPKat is fascinated by the continued efforts made on all sides of the music industry to develop new business models and feels that it's clearly apparent that there are almost as many potential business models as there are business interests -- this seems to herald the end of any "one size fits all" model. Yet there's safety in numbers, which means that even big name artists need to organise within groupings such as the FCA.

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... and agrees to donate it to the charity of your choice.

It's GOOD!

h/t Freakonomics here.

Sharing Paris iPhone photos - this at Le Cimetière du Père-Lachaise

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Thanks to the recent Twitter entry of R. David Donoghue -- "follow" him here -- of the Chicago IP Litigation Blog, we here at the IP ADR Blog can bring you the Sedona Discovery Cooperation Proclamation.

  Since I'm in Paris and David promises to post a piece on this in his blog tomorrow, I'll leave the commentary to him.  Here's the 3-page manifesto and below the introduction.

(left, Donoghue, standing up for reason and client-satisfaction).

The costs associated with adversarial conduct in pre-trial discovery have become a serious burden to the American judicial system. This burden rises significantly in discovery of electronically stored information (“ESI”). In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction, and extensive, but unproductive discovery disputes – in some cases precluding adjudication on the merits altogether – when parties treat the discovery process in an adversarial manner. Neither law nor logic compels these outcomes.

With this Proclamation, The Sedona Conference® launches a national drive to promote open and forthright information sharing, dialogue (internal and external), training, and the development of practical tools to facilitate cooperative, collaborative, transparent discovery. This Proclamation challenges the bar to achieve these goals and refocus litigation toward the substantive resolution of legal disputes.

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The Lawyers' Guide to Collaboration Tools and Technologies

Say goodby to quill pens and obstreperous adversarial posturing.  Join authors Dennis Kennedy and Tom Mighell in learning "Smart Ways to Work Together" in their Lawyer's Guide to Collaboration Tools and Technologies.

If you're practicing intellectual property law (why else would you be reading this blog) you know that technology is moving faster than the speed of the law and that your own practice is often moving faster than any human being possibly could.  What can Dennis Kennedy and Tom Mighell help you do about it?  Here's what their new book's ABA blurb says it has in store for all of us:

This first-of-its-kind guide for the legal profession shows you how to use standard technology you already have and the latest "Web 2.0" resources and other tech tools, like Google Docs, Microsoft Office and SharePoint, and Adobe Acrobat, to work more effectively on projects with colleagues, clients, co-counsel and even opposing counsel. In The Lawyer's Guide to Collaboration Tools and Technologies: Smart Ways to Work Together, well-known legal technology authorities Dennis Kennedy and Tom Mighell provides a wealth of information useful to lawyers who are just beginning to try these tools, as well as tips and techniques for those lawyers with intermediate and advanced collaboration experience.

Collaboration technologies and tools are the most important current developments in legal technology and are likely to remain so for the foreseeable future. Explained with minimal technical jargon, the book focuses on highly practical and usable ideas that you can put to work straight away.

With practical advice on how to use specific tools and concrete action steps to take, lawyers and law firms at all levels will benefit from working together better.

You'll learn:

* The basics of collaboration and collaboration tools

* How to select and implement tools and strategies

* The best ways to collaborate on documents, cases, transactions, and projects

* How to collaborate inside and outside the office

* How to collaborate using tools you already have or own

Technology now makes it easier than ever to work with others -- this is the first guide dedicated to the special requirements of the legal world with the practical steps it takes to do it right.

Far too often attorneys come to mediations and settlement conferences meeting one another for the very first time.  They have demonized one another, transmitted the satanic nature of the adversary to their clients -- who had already branded the opposition as cousin to the Bin Ladens -- and hope to work out a "deal" sufficiently satisfying to the parties that the clients are happy with the lawyers.

You'll litigate and settle all of your complex IP litigation far more quickly and efficiently with an attitude of collaboration and tools of cooperation.  The litigation will be less acrimonious and less expensive, making it far less likely that your clients will choose you as the next target of the lingering sense of injustice they have after some dimwit mediator splits the baby in half and hammers them to reluctantly accept a bad deal as the only alternative to an expensive and risky trial.

I can't express the value of Kennedy's and Mighell's book any better than did Patrick J. McKenna, author of Herding Cats, First Among Equals, and First 100 Days: Transitioning A New Managing Partner.

There is an old adage that one can either work hard or work smart . . . you have a choice. And we would all choose working smart, but once having made that obvious decision, you then have to figure out how.

The good news is that Kennedy and Mighell have now produced the most comprehensive playbook, whether you are a solo, large law firm practitioner or working within a legal department, for how to choose and use the right technology tools to 'smartly' collaborate.

And for those who know that collaboration is a profoundly human endeavor, the authors identify all kinds of practical and cultural issues to watch for. This is one of those few texts that will be dog-eared throughout, for continued reference."

If you're still not convinced, here's the first chapter courtesy of the Kennedy, Mighell and the ABA.

Buy it.  Read it.  Catch your practice and your life up with the 21st Century.  Thrive.

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