Getting Your Trademark by Satisfying PTO Attorney Interests
We talk a lot here at IP ADR about ascertaining and fulfilling party interests to help you settle your patent, trademark, copyright or trade name and trade dress litigation. As Entrepreneurship Magazine recently reported in getting into the mind of your negotiating counterpart, knowing your negotiating partner's desires, aims, goals, needs and fears (its interests) will go a long way to getting you the best deal available.
Getting a solid grasp on the other party's interests will help you:
* Determine what you have or can do that might be of value to them, which can make it easier to figure out how best to get what you want;
* Craft deals that acceptably satisfy the other party's interests, which will increase the likelihood that the deal will be sustainable (since the other party will be motivated by their own self-interest to successfully implement the deal);
* Uncover potential sources of value that might otherwise have been missed, which will increase your ability to invent creative, value-maximizing solutions.
Now, thanks to Las Vegas Trademark Attorney's recent post welcoming Michael Hall to the Trademark Blogosphere [Registration Ruminations]we learn how to Help[] Yourself by Helping Examining Attorneys. In other words, by satisfying examining attorneys' "earned point" interests.
Back in December 1997, Fordham University School of Law hosted a discussion at which Judge Quinn of the TTAB and other panelists spoke about PTO practice. Richard Friedman, a former examining attorney who had moved on to the NBA (as counsel, not a player!) explained how it works:
[I]f an examining attorney pulls an application that is in perfect order and can be passed right to publication, that is two points for the attorney. The examining attorneys love that. They are already thinking ahead to their bonus at the end of the year when they do something like that.
So your job should be to concentrate on making an application two-points perfect. . . .
Let’s say some kind of substantive refusal area comes up, but it is a gray area — not the easy section 2(d) case or the easy descriptiveness refusal. Let’s say the examining attorney pulls an application that is in a gray area, but everything else is okay. The examining attorney is apt to say, “All right, I am going to take my chance and not send the refusal so I can get those two points for that first-action publication.”
If, however, there are other things wrong in the application papers, little stuff, and they are going to have to send you a letter anyway, then they might as well put in the substantive refusal to cover themselves. That is the way things work, whether we on the outside like it or not.
Discussion, Trademark Prosecution in the Patent and Trademark Office and Litigation in the Trademark Trial and Appeal Board, 8 Fordham Intell. Prop. Media & Ent. L.J. 451, 461 (Winter 1998).
In 2005, The Trademark Reporter published an article on the registration of product configuration trade dress with respect to three product types. For one, the authors specifically observed:
To the extent one central theme existed, those who submitted their evidence of acquired distinctiveness at the time of filing the application, or before USPTO examination, appeared to avoid any challenges to the sufficiency of the evidence provided.
Karen Feisthamel, Amy Kelly, & Johanna Sistek, Trade Dress 101: Best Practices for the Registration of Product Configuration Trade Dress With the USPTO, 95 Trademark Rep. 1374, 1383 (November - December 2005).
This particular study involved a narrow field, but the authors’ observation makes perfect sense if you’re looking at it from an examining attorney’s perspective. As Richard Friedman said, “The way to make your life easier when prosecuting trademarks at the PTO is to make the examining attorneys’ lives easier.” Needless to say, following this strategy does not remotely guarantee that you won’t receive a refusal, and obviously there will sometimes be good reason to file an application that you know will result in an office action. However, it puts you in a position where the examining attorney might be inclined to resolve a close question in your favor.
An Olympic Moment: Negotiating IP Licenses and Disputes with Chinese Nationals
Item: China, one of the world's largest and most promising markets, has seen a 20 percent annual increase in patent application filings over the last fifteen years.
Item: In 2007, the State Intellectual Property Office (SIPO) of China received 694,153 patent applications, an increase of 21.1 percent over the previous year
Item: As of May 2008, China is currently third in the world for the generation of invention patents behind the United States and Japan.
Item: If patent filings in China continue to grow at the current rate, the SIPO will overtake the USPTO (United States Patent and Trademark Office) by 2012.
Item: More than four million patent applications were filed with SIPO from early 1985 to December 2007.
Item: In 2005, 2,947 patent-related cases were filed in Chinese courts, representing an increase of 15.6 percent from 2004.
Item: Patent-related lawsuits involving international companies such as Pfizer, Honda, Philips, and 3M have increased by 77.5 percent over the past year.
Get the picture? Yes, we see. To be among the leaders of the IP pack, companies with substantial patent portfolios need to know how to negotiate with the Chinese.
Here are some resources:
Negotiating in China: Trust is Just the Beginning (h/t China Law Blog's post which adds the following advice to that provided in Trust):
Go into your negotiations prepared. Far too often my firm has had Western clients who insist on a particular term from their Chinese counterparts that no Chinese company can give or ever gives. If every manufacturer of widgets in China requires at least a 60 day turnaround time, you are wasting your own time and money by insisting on 10 days for you.
[Use] an already tested contract to gage the bona fides or good faith of a Chinese company. For instance, my firm has been using a non-disclosure agreement for so long in China that we can in large measure gage the legitimacy of Chinese manufacturers just by how they react to it. Legitimate Chinese companies always eventually agree to it (usually rather quickly, but sometimes with reasonable modifications). The illegitimate company refuses to sign, usually claiming such agreements are "never" signed in China or are "illegal."
Further negotiation advice from the China Law Blog
Negotiating in China
quoting an article of the same name from Harvard Business School Working Knowledge on the eight important elements underpinning "the Chinese negotiation style:"
Guanxi (Personal Connections)
While Americans put a premium on networking, information, and institutions, the Chinese place a premium on individuals social capital within their group of friends, relatives, and close associates.
Zhongjian Ren (The Intermediary)
Business deals for Americans in China don't have a chance without the zhongjian ren, the intermediary. In the United States, we tend to trust others until or unless we're given reason not to. In China, suspicion and distrust characterize all meetings with strangers.
Shehui Dengji (Social Status)
American-style, "just call me Mary" casualness does not play well in a country where the Confucian values of obedience and deference to one's superiors remain strong. The formality goes much deeper, however unfathomably so, to many Westerners.
Renji Hexie (Interpersonal Harmony)
The Chinese sayings, "A man without a smile should not open a shop." and "Sweet temper and friendliness produce money." speak volumes about the importance of harmonious relations between business partners.
Zhengti Guannian (Holistic Thinking)
The Chinese think in terms of the whole while Americans think sequentially and individualistically, breaking up complex negotiation tasks into a series of smaller issues: price, quantity, warranty, delivery, and so forth. Chinese negotiators tend to talk about those issues all at once, skipping among them, and, from the Americans' point of view, seemingly never settling anything.
Jiejian (Thrift)
China's long history of economic and political instability has taught its people to save their money, a practice known as jiejian. The focus on savings results, in business negotiations, in a lot of bargaining over price - usually through haggling. Chinese negotiators will pad their offers with more room to maneuver than most Americans are used to, and they will make concessions on price with great reluctance and only after lengthy discussions.
Mianzi ("Face" or Social Capital)
In Chinese business culture, a person's reputation and social standing rest on saving face. If Westerners cause the Chinese embarrassment or loss of composure, even unintentionally, it can be disastrous for business negotiations.
Chiku Nailao (Endurance, Relentlessness, or Eating Bitterness and Enduring Labor)
The Chinese are famous for their work ethic. But they take diligence one step further - to endurance. Where Americans place high value on talent as a key to success, the Chinese see chiku nailao as much more important and honorable.
And if you're looking for a China-knowledgeable IP litigation team, you couldn't go wrong by hiring Irell & Manella and asking them to include on that team new IP attorney and Mandarin-fluent Adam Goldberg (who does not "share my DNA" but is my step-son).
And if you're doing business everywhere in the world, What About Clients says of When Cultures Collide: Leading, Teamworking and Managing Across the Globe buy it, read it, refer to it and link to the blog.
Done.
Blawg Review #171
If intellectual property had a theme song it would have to be "Like a Virgin."
Why?
Because IP is all about "the very first time," the "aha" moment, the creative spark that gives rise to previously undreamed imaginings.The restrictions of "how we've always done things" fall away and the numbing repetition of days become vibrant. The rest, of course, is work. Trial and error. Success. Failure. Rearranging the disaligned. Completion.
Then the suits arrive. That's us, the lawyers.
In honor of the moment of creation at the root of every intellectual property dispute, this week's Blawg Review No. 171 gives you the great virgins of history.
To kick off the "virgin" IP ADR Blawg Review, we're linking you to Kate Monro's brilliant and (in)famous blog The Virginity Project and giving you a tantilizing excerpt:
Touched for the very first time...
It’s all about virginity loss. Or is it?
. . . . I love listening to the episodes in people’s lives that are imprinted into our psyches like hot wax into a seal. The moment itself could be as dull as dishwater but it doesn’t matter because the beauty is in the detail and the connective tissue of emotions that frame this unique story.‘You never fall in love like you do when you’re eighteen. Shot though the heart. I’ll have that again, any day of the week.’ Russell, lost virginity aged 17
Virginity loss is the backdrop to a thousand visceral teenage moments…
‘For me, the first hands-down-the-pants experience was far more significant. That was earth shattering. I mean, there is a hole there. How bizarre is that?’ Tim, lost virginity aged 16
Virginity loss is the swing door between child and adulthood. A door that we all want to push…even if we’re unsure of what we may find on the other side….
‘It was a pivotal moment, not only because I lost my virginity but also because it was a first taste of freedom, of what life could be like out in the big wide world and it was totally thrilling’. Heidi, lost virginity aged 15
When I asked Kate if she could address the Blawg Review's readers, she graciously and immediately accepted my invitation as follows:
Bad hair, the contents of a vicar’s cassock and toxic contamination coverage litigation. These are just a few of the subjects turned back and forth between Ms Pynchon and myself this last week. A very good email correspondent she is too. Not only that, but she’s a blogger with heart. I know, tell you something you don’t know…..
O.K. I will. I’ve spent the past two years travelling Britain and collecting virginity loss stories from an amazing cross section of people. The oldest was 101, the youngest was 17. Yes, it’s been quite the journey. Next up, I plan to come to America and do just the same. If you are game, I would love to hear from you. Anonymity guaranteed, I promise.
Either way, I hope you enjoy stepping onto virgin territory with the lady of the law…
(and while we're speaking with a British accent, take a look at Kate's other law blog friend's new blog category, Irritation to which I can only say this == the exchange rate).
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Finally!! Blawg Review 171 as "told" by Famous Virigins from Wilkiality, the Truthiness Encyclopedia.
Wikiality claims that the The Virgin Mary was "a Republican . . . against abortion, stem cell research, gay marriage and women in the workplace." We believe she's ecummenical and inter-religious. Whatever her American political party, in her honor, we give you the best law and religion posts of the week, including the Florida Employment and Immigration Law Blog's announcement that the EEOC has issued new guidelines on religious discrimination and the suggestion by Thoughts in a Haystack that Religious Intolerance is Good for You. The Legal Theory Blog takes religion head on in its post on negotiating meaning with Islam while MacLeans.CA Blog (So Much Bigger than Ezra) frets about the globalization of anti-blasphemy laws (whose first target could easily be this Blawg Review). We don't know what the Virgin Mother would think about Shari-ah and Mediation but you can catch Geoff Sharp riding the far edges of possibility on that topic at Mediator blah blah . . . . We do believe the Virgin Mary does not like divorce. But if you really Agree on Everything, you not only don't need a mediator, we wonder why you're asking for a divorce. Finally, though Marc Randazza has a pledge of allegiance he could get behind, we're placing no bets on Mary agreeing with him.
Ken ("I am Not Gay") Mehlman is the former Chairman of the Republican National Committee. Wikiality annointed him the "world's oldest virgin" "[a]s the result of his religious piousness and his not being married." Pretty flimsy evidence but it gives us an excuse to cover sex and sexuality in an IP ADR Blog. It doesn't look like the Indiana Law Blog is having any sex whatsoever, pulling out that old "I have a headache" chestnut and blaming it on Conflicting Gay Marriage Laws. A Florida Court has required one of its state's high schools to permit a Gay-straight alliance on campus ( School Law Blog); the Sexual Orientation and the Law Blog sees the light at the end of the Don't Ask, Don't Tell tunnel; and, the Australian Gay and Lesbian Law Blog reports on legislation that would permit children of gay and lesbian parents to be treated as -- what else? -- their children for purposes of the Family Law Act. Speaking of bi-sexuality, check out Bob Ambrogi's post at Legal Blog Watch about a bi-"sexual attorney predator" who stalked men and women as well as once trying to convince an employee to "go to the hotel room of a highly paid expert witness who was faring poorly in a deposition [with] instructions . . . to "take care" of him in order to improve his mood." Finally, we all just say "no" to accusing a Judge of pedophilia while attempting to prove your legal point, noting the the four month contempt sentence covered over at QuizLaw.
Jesus, far and away the world's most famous virgin, has been imagined as lusting in his heart (cf. the Jimmy Carter Playboy interview), having a wife and family (D.H. Lawrence, The Man Who Died) and, you got it, being gay. For this last sacrilege, check out the Pink Triangle's post Gutless Grovelers Have Bowed to Religion Again. WWJD? Because he hung with an odd assortment of tax collectors, prostitutes, lepers, and the undead (cf. Lazarus) we assume he'd agree with Eugene Volokh that the usual "best interests" analysis would fall short in custody decisions for parents with unusual or nontraditional friends and associates. Volokh's thoughts on the issue as well as those of his readers here. Finally, Sarah Lawsky considers the outcome of "Mamma Mia!" -- a "division" of a daughter by three putative fathers -- in light of the seminal Summers v. Tice decision concerning injury and probability. Hint: it's not any of the members of the troika formerly known as the Blessed Trinity.
Ralph Nader, consumer advocate and democratic presidential spoiler has not, according to Wikiality, ever even dated, let alone gone 'all the way.' Because Nader is famous with law students for having said that legal scholarship is "mental gymnastics in an iron cage," we dedicate his virginity to legal practice. We think Ralph would like Dan Hull's post at What About Clients? commenting on Gerry Spence's post that "Law Education is a Fraud" (followed by a spirited debate between Dan and yours truly on the subject -- are we really all crashing bores?). See also f/k/a's Law Blogging and the Cult of Gerry Spence. For tips on social networking, check out Kevin O'Keefe's LexBlog post and for a more theoretical legal practice post, see Ken Adams' thoughts on whether Law Firm Contract Drafting Services are a Commodity? If it really is all about the client, ask your local GC what s/he really wants. We regularly check in on the Wired GC who last week posted on Virtual Law Partners. Big firm practice is always in the news because we're naturally competitive and want to catch a peek of the Masters of the Universe in their underwear. In Laid Off By Cadwalader? My Shingle asks Why Not Go Solo by Choice? The Cadwalader lay-offs give Jordan Furlong at Law 21 the opportunity to give us the year's best post on retaining and training associates, caring for clients and benefiting the law firm while you're at it in Associates and the bad table. For the small fry among us, Susan Carter Liebel's Build a Solo Practice recommends ways to avoid our personal Brain Drain while The Greatest American Lawyer challenges lawyers to offer Money Back Guarantees! Holden Oliver advises us to take care of our clients by keeping them informed. Finally, Madeleine Begun Kane offers an Ode To Judge Ronald Leighton, quoted in full below.
Attorneys are often verbose,
Penning legal complaints grandiose,
Writing hundreds pages
And setting off rages
From those who find wordiness gross.
But Judge Leighton showed major restraint
When he ruled on an endless complaint.
In a limerick poem
He said, redo this tome
Cuz in 8(a) compliance it ain’t!
Joan of Arc. Virgin. Martyr. Warrior. We dedicate the week's consumer rights post to a woman who dressed like a man to protect her virginity and died at the stake for saving her country. Before rushing to legal or Ecclesiastical authorities -- both of which are historically and notoriously unreliable (right Joan?) -- take simple steps to protect your own welfare by subscribing to Michael Webster's Bizop News, which this week warns us about our inclination to follow our first instincts. Drug and Device Law links us to Pharma-Free Doctors for Journalists where you can presumably find that rare physician who is untainted by free drug samples. From the other side of the consumer/provider aisle we hear from Overlawyered (Drunk Driving for Profit) that an insurance company was sandbagged to the tune of $5.8 million in compensatory and and $10.5 million in punitive damages. We think that's karmic or at least levelling the playing field. Meanwhile, the Public Citizen Law and Policy Consumer Blog alerts us to the FDA's decision to finally begin regulating tobacco, which does not remind us of virginity, but of cigarettes, particularly the best ones memorialized by former U.S. Poet Laureate Billy Collins in The Best Cigarette. (and if you don't like Billy Collins, the IP ADR Bloggers will sentence you to a term of emotional labor at Gerry Spence's Trial Lawyer Camp).
We devote disability law to The Elephant Man -- who suffered from neurofibromatosis -- and who presumably died a virgin. No, Pain, Depression and Anxiety is not the name of a law firm, but a post on obtaining social security benefits from the Maryland Injury and Disability Law Blog. Disability Law 2.0 - Tan * Rested and Ready covers the new California appellate decision on aisle space while the New York Disability Law Blog cheers the SSA Commissioner's exhortation that "eliminating the backlog of Social Security Disability claims is a moral imperative." Randy Chapman's Ability Law Blog gives advice to parents about how to find "related services" for their school-age children. Though not a disability, age itself tends to create the type of obstacles the disabled face. To prove the truism that its best not to let your children become writers, I offer a conversation with my mother when she was in her early 80's.
After exchanging the usual telephone pleasantries, mom began to stutter and giggle in a way I'd never heard before. Finally, she got her question out past the hilarity -- "honey, do you think I need to worry about safe sex?" Go mom! But let's talk about what kind of sex is really unsafe for the Greatest Generation -- intimacies that end in the looting of trust assets as described by Estate of Denial in "Dear Candidate." (cf. That's not the sound of one hand clapping . . . . ) Think you'll find sexual safety among the widows in nursing homes? Think again and read Sex Offenders Living in U.S. Nursing Homes from the Nursing Home Abuse and Neglect blog.
Emily Dickinson is famous for being a true American virgin. But as this week's New Yorker 
reminds us, the "theory that Dickinson was a lesbian shares a Dewey-decimal classification with a raft of other case studies -- Emily the sufferer, performer, healer, seducer, victim, hysteric, dog lover, mystic, feminist paradigm, vestal daughter, consumptive, agoraphobic." (cf. Vagabond). Emily's presence here gives us the opportunity to report on law and the arts. The Art Law Blog discovers yet another Pollack find in It's Not About the Money (cf. Who the $#%$ is Jackson Pollack). Over at Empowering Thoughts for Dancers there's a short song of praise for Volunteer Lawyers for the Arts and at Stephanie West Allen's Brains on Purpose, there's a post on legal practice and the art of Improvisation. Why did Emily avoid the great mass of humanity? Maybe she didn't know what The Divorce Coach knows -- people who blame others for everything can be managed. See "It's All Your Fault! (12 Tips for Managing People Who Blame Others for Everything)." . Speaking of American women poets ( a rose is a rose is a rose is a rose) at least one California lawyer muses on whether a contract is a contract is a contract. Finally, Counterfeit Chic asks an IP-Art cross-over question -- is it more subversive to create countercultural clothing or to undercut its now-iconic status by flooding the market with fakes? In legal terms, a trademark is a trademark -- but the ingenuous invocation of law to protect Seditionaries is a ironic twist.
Diogenes of Sinope spent so much time wandering around in search of an honest man that he apparently never got laid. Michele at the University of Oregon Student Law Blog believes she's found the honest, or at least the greenest law school in the nation while Will Li (2L) at the Situationist has a few caustic words for BigLaw's Summer Camp Sleep Over Programs. Three years of answering Socratic questions followed by a three day bar exam. Yup, it's over. To renew the feeling of relief that once was, read Peanut Butter Burrito's -- Done. I read a lot of law student blogs for this Blawg Review and can only report that most of them don't seem much interested in the law. Not true, however, of Nuts and Boalts. I really enjoyed reading Don't You Ever Get Tired of Being Wrong? (re Committee on the Judiciary v. Miers). Law students don't always breathe a sigh of relief when the bar exam is over but we think Ouch at Think Like a Woman, Act Like a Man can relax -- it's the people who don't know they missed the hearsay question who are in danger of failing. Its not only law students who are looking for a few good lawyers -- David Lat is kicking out the jams by letting Ann Althouse, Tom Goldstein, and Dahlia Lithwick choose his new co-blogger by juding six candidates in an "American Idol"-style competition See update here. Finally, next year's bar examinees should check out May it Please the Court's post on Handwriting.
Virgin Immanuel Kant -- the orignal moral reasoning guy -- prompts us to bring you Moral Grammar and Intuitive Jurisprudence from the Neuroethics & Law Blog; and, to remind everyone that mustangs do not need birth control from this week's Animal Ethics. Finally, we think Kant might have been intrigued by Why We are Too Rational to Stop Polluting from Amateur Economists.
Isaac Newton. The Straight Dope thinks the virginity of this octogenerian scientist and mathematician is less surprising that the fact that the math gene somehow keeps perpetuating itself. We consecrate Newton's virginity to this week's best IP and IT posts. William ("I am virginal") Patry is asking questions about the government's engagement in copyright infringement but it is Patry's final blog post that we celebrate as a true virginal moment. Pause here.
My late mother, aleha ha-shalom, told me repeatedly that I had a religious obligation to learn every day, and I have honored her memory by doing exactly that. Learning also involves changing how you think about things; it doesn't only mean reinforcing the existing views you already have. In this respect, Second Circuit Judge Pierre Leval once said that the best way to know you have a mind is to change it, and I have tried to live by that wisdom too. There are positions I have taken in the past I no longer hold, and some that I continue to hold. I have tried to be honest with myself: if you are not genuinely honest with yourself, you can't learn, and if you worry about what others think of you, you will be living their version of your life and not yours.
Other IP bloggers have, of course, reflected on Patry's Final Blog Words here and here.
Back in the worldly word, Patently O -- which promiscuously shares itself with millions of readers every year -- turns its pen over to David McGowan who discusses why we should not interpret the recent Quanta decision too broadly. Lou Michels suggests we be the masters of our own domains, using the the recent San Francisco IT fiasco as a cautionary tale -- don't let a single person have control of all the keys to your kingdom.
If you're reading this on your iPhone, you've moved from cigarettes to PDA's. Congratulations. Brett Trout at BlawgIT suggests that you might soon be watching television from that device in your post-coital bliss. Protection, protection, protection. In a software license, boilerplate integration and non-reliance terms might not insulate a firm from claims based upon its salesfolks' "over"promises. What's this? Blog content licensing might be dying for lack of buyers? People buy blog content? I can hear my mother asking "why buy the cow . . . . "
The IP Dispute of the Week, of course, is Hasbro's suit against Rajat and Jayant Agarwalla for their Facebook hit Scrabulous. Scrabble itself was invented during the Depression by Alfred Mosher Butts, an out-of-work architect. How did he do it? As the New York Times explained in its review of Steve Fastis book, Word Freak (Zo. Qi. Doh. Hoo. Qursh) Scrabble's inventor assumed that the game would work best if the game letters "appear[ed] in the same frequency as in the language itself." So he
counted letters in The New York Times, The New York Herald Tribune and The Saturday Evening Post to calculate letter frequencies for various word lengths. Playing the game with his wife, Nina, and experimenting as he went along, Butts carefully worked out the size of the playing grid (225 squares, or 15 by 15), the number of tiles (100), point values for the letters, the placement of double- and triple-score squares, the distribution of vowels and consonants, and so on.
In response to the Hasbro lawsuit Ron Coleman at Likelihood of Confusion asks "How Many Points is Infringement?" -- one of those rare legal questions that actually has an answer rather than 20 more questions.
If Player 1 opens with "fringe" (double word) for 24 points; Player 2 follows by slapping an "i" on the triple word score followed by an "n" for "infringe" and 33 points; and, Player 1 responds with "ment" for 19 points, the combined score for "infringement" is 75 points. Our readers can do the math and moves on "trademark" and copyright." On the matter of greater moment -- Will the ax fall on Scrabulous -- Jonathan Zittrain at The Future of the Internet answers his own question in the affirmative based on the name alone, opining that by calling it "rainbows and buttercups” instead of “Scrabulous” there’d be little claim of brand confusion but noting the "residual claim that the Scrabulous game board infringes the copyright held in the Scrabble game board." More on Scrabulous and its replacement with Word Scraper at the Video Game Law Blog here. (Mr. Thrifty's and my first game of Word Scraper here!)
Has anyone recently said God bless the best IP aggregator in the universe -- the IP Think Tank's Global Week in Review? This week IPTT points to the following posts on the Hasbro Scrabble debacle -- (Spicy IP), (Techdirt), (The Trademark Blog), (Out-Law), (Law360). While we're talking IP aggregation, check out Patent Baristas' regular Friday IP Round-up. All around aggregators include Anne Reed's (Deliberations) reading list and Kevin O'Keefe's LexMonitor.
Both Geoff Sharp and I picked up 8 impediments to settling patent cases on appeal (a desire for "justice" is not an impediment but a means to settlement). While we're taking an ADR angle, Virtually Blind's post Second Life Lawsuit Avoided; Law is Cool's Love, Actionable; and, Slashdot's recommend reading of the week (The Pragmatic CSO) are all well worth a look.
Slashdot also reminds us that IP prevention is worth a pound of IP litigation with the post WB Took Pains to "Delay" Pirating of the Dark Knight as follows:
"a new studio tactic [is] not to prevent piracy, but to delay it . . . Warner Bros. executives said [they] prevent[ed] camcorded copies of the reported $180-million [Dark Knight] film from reaching Internet file-sharing sites for about 38 hours. Although that doesn't sound like much progress, it was enough time to keep bootleg DVDs off the streets as the film racked up a record-breaking $158.4 million on opening weekend. . . The success of an anti-piracy campaign is measured in the number of hours it buys before the digital dam breaks.'"
The Law and Magic Law Blog announces the dismissal of the defamation lawsuit against Magic Mag on the ground that its a protected opinion while Ernie the Attorney has a way to make your iPhone magic here.
Meanwhile, the Legal Talk Network gathers together bloggers and co-hosts, J. Craig Williams and Bob Ambrogi to welcome Attorney Kevin A. Thompson from the firm Davis McGrath LLC, and Lauren Gelman, Executive Director of Stanford Law School's Center for Internet and Society to discuss Viacom's suit against Google's YouTube for the violation of its copyrights in a $1 billion lawsuit. 
Because I used to type patent applications for Uniroyal (IBM Selectric - 5 carbon copies) I get a sweet whiff of nostalgia from Wiki Patents -- like this one -- Flexible Row Redundancy System 7404113 -- a row redundancy system is provided for replacing faulty wordlines of a memory array having a plurality of banks. The row redundancy system includes a remote fuse bay storing at least one faulty address corresponding to a faulty wordline of the memory array . . . . Another available data base for the engineering-attorney crowd is the subject of Securing Innovations post IBM Technical Disclosures' Prior Art Data Base. Concurring Opinions covers IP in the News this week, Peter Zura's 271 Patent Blog considers a patent that was a "Colossal Waste of Time" and IP Kat curls up with Small and Sole.
J. Edgar (I am not a perv) Hoover is yet another iconic American virgin (cf. Don DeLillo's masterpiece Underworld and the front page that inspired it). In honor of crime fighting, we bring you Religion Clause's post on the RICO action just filed agains the Church of Scientology and Tom (I'll sue if you say I'm gay) Cruise. Serving the needy prison population might get more economical according to a post over at Amateur Economists -- How Telemedicine Can Actually Work. What better way to celebrate a Virgin Blawg Review than posting a link to Courtroom Casanova where Mr. Big(Crime) "hits on" the prosecutor. Closer to home the L.A. Police Deparment has captured 43,000 counterfeit sunglasses -- you weren't expecting snow shoes -- with a street value of $8.5 million (Blogging Shades, My Authentics.com Counterfeiting News). After a Portland, Oregon policeman was convicted in traffic court following a citizen's complaint that he used a no parking zone to grab take-out, Scott Greenfield proclaimed a "Cop Love Sunday"; Seth Freilich was somewhat less charitable. Should misinformation about people's conviction records be placed online? Check out Concurring Opinion's post The Problems of More Accessible Criminal Conviction Information. For more IP Crime news, see Copyright Law and Information Blog's post E-Bay Sofware Pirate Sentenced to 48 Months in Prison.
Lewis Carroll "Some writers . . . who have fallen short of accepting Dodgson as a paedophile, have tended to concur that he had a passion for small female children and next to no interest in the adult world." Wikipedia. 'But I don't want to go among mad people,' said Alice. 'Oh, you can't help that,' said the cat. 'We're all mad here." Alice's Adventures in Wonderland These two quotes are as good a lead-in as any to the law of Hollywood. While you're in a fanciful state of mind, check out the Digital Media Law blog's analysis of the current state of the SAG negotiations. And remember, Sharon Stone left Los Angeles for San Francisco because the daily Hollywood beauty contest at Bristol Farms was "too much competition." (cf. Last Action Hero) So it's no surprise that here in botoxed fantasy-land, its not just your enthnicity, but the tone of your skin that can get you booted off camera -- The Entertainment and Media Law Blog.
Mother Teresa Hooray!! There is a Pro Bono Legal Blog. This week, PB blogger Aaron Hurst is thinking about using google alerts to identify people or communities in need. See Pro Bono Junkie's Blog post Customer Service is One Blog Away. Some of the most important pro bono work being done today is off-shore at Guantánamo. Check out the Show and Tell Trial over at the American Constitution Society Blog. Elsewhere, the Attig Law Firm, PLLC rightly touts its own horn for its success in its pro bono efforts to assist a U.S. Veteran in securing disability benefits.
The Virgin Queen Elizabeth I Elizabeth is acknowledged by historians as a charismatic performer and a dogged survivor, in an age when government was ramshackle and limited and when monarchs in neighbouring countries faced internal problems that jeopardised their thrones. What did Elizabeth do right? Neutralize, negotiate and resolve conflict by "uniting the body natural with the body politic" as she proclaimed at 25 years of age when she ascended to the throne:And as I am but one body naturally considered, though by His permission a body politic to govern, so shall I desire you all...to be assistant to me, that I with my ruling and you with your service may make a good account to Almighty God and leave some comfort to our posterity on earth. I mean to direct all my actions by good advice and counsel.
In honor of Elizabeth, I give you posts from my own ADR blog posse this week. First, we honor the newest member, Nancy Hudgins of Civil Negotiation and Mediation who has proven her bargaining cajones by negotiating the price of a bottle of "Old Raj, a distinctive gin . . . distilled with saffron [that has] a slightly orange-ish color and a different subtle but piquant taste." WWED -- What Would Elizabeth do? I think she'd negotiate with terrorists but not without first consulting Andrea Schneider at the ADR Prof Blog. If you read any Blawg Review post this week, let it be Diane Levin's Mediation Channel post All Gardeners are Optimists: What Squirrels Reminded Me about Conflict Resolution. Poetry. (cf. the summer issue of the r.kv.r.y. quarterly literary journal). Gini Nelson offers us wisdom on the Myers Briggs Indicator that will tell you everything you need to know about your "type" other than your sexual preferences. (cf. her ABA article on the same topic here). Are you a Virtual Virgin? Then run right over to Mediation Mensch's post on "Getting Virtual." Though Stephanie West Allen hails from the Renaissance rather then the Elizebethean era, anyone worried about the well-being of their parents should check out her Idealawg post Mediation Can Work in Many Elder Care Situations. We hope Justin Patten won't mind our making him an honorary ADR British Queen by linking to Human Law's post from last week: As we head into recession and a wave of redundancies does the Human Resources profession have some flair and imagination? We do have an American ADR "Queen" -- Chris Annunziata -- who will hopefully forgive me for giving him honorary ADR Queen status. Our academic readers could benefit themselves and our "on the ground" professionals by reading this week's CKA post Why Nobody Really Reads Law Review Notes here. My high school French is bad, but it looks like French mediator Dominique Lopez-Eyechenie is reporting that mediators have been deployed to the Metro to referee disputes there -- is that right Dominique? Finally, the Health Care Neutral (our last honorary male ADR Queen) talks about immunity and couldn't we all use just a little of that?
Below: Madonna and Friends -- Like a Virgin for your listening pleasure while reading this week's Blawg Review.
Next week, the Blawg Review will be hosted by the Ohio Employer's Law Blog which we expect will be far more respectful of BR's readers' political, religious and sexual sensitivities than this one was. Thanks for letting us play. And a very, very, very good night!
Thanks to the following law blogs sending link love our way:
Pharmaceutical News and Resources
Thanks to CKA Mediation and Arbitration Blog for the honorary NoDoz Award (here's the ADR Executive Summary of #171, Chris)
a fool in the forest (with special thanks for brightwhiteandsparklinglyvirginal)
And Google News no less . . .
(Blush) many thanks to Infamy or Praise for suggesting #171 "is a strong contender for Blawg Review of the Year."
The New York Personal Injury Law Blog (Linkworthy) which apparently thinks the title is more interesting than the post itself.
Wise Up at Simple Justice's Blog Review No. 170
Because the introduction of the movie Magnolia narrates the best criminal law bar exam question in the history of film, period, I posted it for you over at the Settle It Now Negotiation Law Blog here. Below, the haunting last scene of that dark comedy -- Aimee Mann's Wise Up -- below.
If you want to access the mind of criminal attorneys (who have all the fun!) then run, don't walk, over to Simple Justice for a satisfyingly meaty Blawg Review. What? No IP crimes? Mediating sunglass and handbag counterfeiting disputes is as close as I ever get to criminal law and then the question is always an ethical one -- can you imply that charges will be dropped if a civil settlement is entered into. I believe the answer is "no" but I see it done all the time.
Stay tuned here for next week's Blawg Review which will be penned by the members of the IP ADR Blog.
IP Risk Management: Protection, Protection, Protection
When I was practicing, I'd tell my clients that litigators and trial lawyers were the profession's surgeons. We were the people they wanted to avoid because surgery is costly and potentially life-threatening.
Transactional lawyers, I stressed, were the Internists of the profession and they should be consulted early and often.
Because we can't prevent litigation any more than we can prevent strokes and heart attacks, we have INSURANCE. If your business has protectable trade secrets, a patent portfolio, valuable copyrights, coveted trademarks/names or any other type of intellectual property (and all businesses do) mosey on over to the Gauntlett on Insurance Blog's recent post Restoring Balance to the IP/Insurance Interface.
Most major corporations have procedures, either through existing personnel or through the aid of consultants, that:
• Identify and evaluate the full range of IP;
• Determine the level of patent, copyright or trademark infringement by the company or others;
• Reduce exposure to legal action by managing risk;
• Protect residual risk through insurance.
The challenge comes in the last component through identifying products in the marketplace that can create similar opportunities for reimbursement and designing protocols to assure that the maximum policy benefits available to the company are properly secured.
How challenging is it to "assure that the maximum policy benefits available to the company are properly secured"? Allow me to share my experience.
Though I have pursued coverage claims and bad faith actions against insurance carriers, by far the vast percentage of my coverage litigation practice was on behalf of insurance carriers providing excess CGL or D&O insurance to Fortune 50 companies. Occasionally (not often) I'd also take a look at smaller claims to determine in the first instance whether coverage was available. Some of those claims were from companies seeking coverage for patent or copyright infringement litigation.
Here's my advice. If you believe yourself vulnerable to suit, don't rely solely on your risk management department. Get an annual insurance check-up by a specialist in IP insurance coverage issues. Then get a second opinion from an insurance litigator. I know that sounds expensive. But it's a drop in the bucket compared to the first six months of IP litigation. Think:
-
electronic discovery
-
complex procedural manuevering
-
depositions of your key personnel
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media coverage
Get the picture? Not only do you not want to hire insurance coverage litigators, you never ever want to see a mediator or settlement officer with insurance company experience. Why not? Because by the time you're willing to sit down with the opposition to settle a case with the aid of a third-party neutral, you've already lost no matter how great a deal you cut to terminate the litigation.
So if you can't save yourself from having a coronary, at least buy yourself a policy of insurance that will cover the likely (and unlikely) claims that put your company's life at risk.
(and, yes, insurance companies do look for ways to deny you coverage; make it improbable or very very risky for a carrier to do so)
Counterfeit Handbags, Mediation and the Rule of Law
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.
IPKat Announces the Official Launch of ACID's Mediate to Resolve
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 arrangementseven 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". . . .
The Chicago IP Litigation Blog Includes Settle It Now in the Carnival of Trust
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.
((red)) and the ownership of intellectual property
The significant problems we face cannot be solvedby the same level of thinking that created them.--Albert Einstein
Lawyers, philosophers and scientists are all trained to question first principles. The right of one individual to the absolute and exclusive right of dominion over property by virtue of creation or payment (by money or barter) is one of the first principles of capitalism and is rarely questioned. /**
The ownership of ideas, however, and one's entitlement to preclude others from interfering with another's dominion over them, is more slippery today than ever. In this month's Harvard Business School Working Knowledge journal, for instance, Professor James Heskett kicks off a reader's forum -- Who Owns Intellectual Property -- (open until April 24) with the following:
I [recently] visited the website of the branding consultancy Wolff Olins, responsible for creating the branding for (RED), which raises money for The Global Fund being promoted by Bono and Bobby Shriver. (RED) is a brand, a piece of intellectual property that was designed purposely to be co-opted by others wishing to incorporate it into their advertising. Organizations such as Apple, Gap, and American Express have promoted their products and services using (RED) while raising money for The Global Fund.
Wolff Olins' homepage presents a provocative redefinition of brands as practical platforms that enable people to do things. In its words, "As brands become less the property of an organisation and more the banner of a movement, ownership will become even looser. Logos will be things other organisations, and individuals, can borrow and adapt." That belief, they maintain, will require that some companies, in their own best interests, relinquish control over brands and "be more generous" with consumers. In other words, they take the risk of transferring ownership and quality control of what used to be called their brand to others. In this case, who owns the intellectual property?
More generally, are views of ownership of intellectual property changing? If so, how will it affect the way intellectual property is valued for financial purposes? Are laws worldwide regarding intellectual property out of date? What do you think?
To add your own thoughts, click here.
____________________
/** Though possibly apocryphal, in responding to the question "what proof need I present to demonstrate my ownership of this slave," a trial judge sitting in a non-slave state in 1840's America is said to have answered, “a bill of sale from God Almighty.”
Prepare to Celebrate World IP Day
“Never before in history has innovation offered promise of so much to so many in so short a time.”
"Intellectual property has the shelf life of a banana."
These two quotes from world-class innovator and IP rights owner, Bill Gates, say it all about the state of intellectual property today. While most people are aware of the intellectual property concept - of copyright, patents, industrial designs and trademarks - many still view them as business or legal concepts with little relevance to their own lives. To address this gap, WIPO’s Member States decided in 2000 to designate an annual World Intellectual Property Day. They chose April 26, the date on which the Convention establishing WIPO originally entered into force in 1970.
Follow the Money: Insurance Coverage for IP Assets
($5700 by Andrew Magill)
I just ran across this terrific resource for IP practitioners -- Insurance Coverage for IP Assets. Were I still in practice today, I wouldn't make a move without this great source of IP settlement wisdom.
Here's the thing about the law of insurance coverage (a sub-specialty of mine for the last ten or so years of my practice) -- you cannot simply read your clients' insurance policies nor simply read the pertinent case law in deciding whether to make -- or more importantly to press -- a claim for coverage.
There are no easy coverage answers and the difficult questions raised by every coverage dispute vary from state to state.
I live with policy-holder counsel and he can't answer my questions unless I look up the answers and give them to him, at which point he'll tell me why I'm wrong (I usually am) unless I've asked six or seven additional questions. (thanks honey!)
So add this valuable book to your research library in 2008.
Publisher's description of contents below; link to publisher's web page featuring the book above.
Insurance Coverage of Intellectual Property Assets is the first resource to comprehensively analyze the insurance protection issues that must be considered when an intellectual property dispute arises. From determining the scope of coverage under a policy, to tendering of a claim, to seeking remedies when coverage has been denied, this essential guidebook details the interactions among policyholders, insurers and the courts.
You'll find comprehensive and timely analysis of federal and state case law and major commercial insurance policy provisions that address:
- The extent of insurance coverage under the "advertising injury" and "personal injury" provisions
- Language in policies that limits or excludes coverage for intellectual property claims
- Public policy exclusions to coverage for claims of an infringement undertaken with intent to harm
- Interpreting ambiguous language in insurance policies
- Defending a claim under a "reservation of rights" and potential conflicts of interest triggered thereby
- Forum selection and choice of law
And more.
In addition, there's detailed discussion and comparison of the actual language used in most commercial insurance policies and the 1976 and 1986 Insurance Services (ISO) policies.
John Leo Wagner, Federal Magistrate (Ret.) Joins the IP ADR Blog
The IP ADR Blog is pleased to announce that we are being joined in our IP blogging venture by John Leo Wagner, Federal Magistrate (Ret.).
Judge Wagner is a colleague of Mike Young's and mine at the Southern California ADR firm Judicate West. His impressive credentials will soon be posted in the "About" section of the blog (up at the top there). We provide only the highlights of his judicial and private practice career below.
Welcome John!! We know that our IP ADR Blog readers will greatly enjoy hearing your thoughts on the negotiated resolution of IP disputes.
ABOUT JUDGE WAGNER
Judge Wagner has been engaged in the settlement and trial of intellectual property disputes for over 20 years. He is currently a full-time neutral with Judicate West Alternative Dispute Resolution, where he mediates and arbitrates all manner of patent, copyright, trademark, trade dress and trade secret disputes.
John was formerly Of Counsel with the Los Angeles-based law firm of Irell & Manella LLP, where he was the head of the firm’s ADR practice group and Director of the firm’s Alternative Dispute Resolution Center. He worked for over seven years as one of the ADR Center’s primary neutrals, settling a myriad of difficult intellectual property disputes.
Before joining Irell & Manella, John served for over twelve years as a United States Magistrate Judge in the Northern District of Oklahoma, where he founded and administered the Court’s mediation program, and served as the resident expert in settling IP disputes.
John has mediated and arbitrated thousands of cases and was recognized as a Southern California Super Lawyer in the field of Alternative Dispute Resolution in 2007. He has also been selected for inclusion in he 2007 edition of The Best Lawyers in America in the specialty of Alternative Dispute Resolution.
John is the President-Elect of the International Academy of Mediators, a Fellow of the American College of Civil Trial Mediators, a Member of the CPR International Institute for Conflict Prevention and Resolution’s Panel of Distinguished Neutrals and a Diplomate Member of the California Academy of Distinguished Neutrals. John is also a member of the Board of Directors of the Federal Bar Association's ADR Section.
John has been active in guiding national ADR policies and practice for over two decades. He was appointed by Chief Justice Rehnquist to serve on the Court Administration and Case Management Committee of the U.S. Judicial Conference, where he helped to formulate rules and policies governing ADR programs in the Federal Courts. He also served on the CPR Advisory Committee dealing with Mediation Procedures and the CPR/Georgetown Commission on Ethics and Standards in ADR.
Judge Wagner frequently teaches and lectures on ADR topics.
We're happy and proud to have him join us here.
On the Internet, Nobody Knows You're a Dog: Negotiating the Settlement of Your IP Dispute
HOW IT STARTS
"They cheated me," said the C.E.O. of a Fortune 500 company.
"They stole my invention [or process, design, employees, product, market, or, customers]."
"They copied, knocked off, lied, misled, withheld, and, denied."
This is how the litigation begins. You can recite it in your sleep because you drafted the complaint, the counter-claim, and, the interrogatories. You prepared the examination, the cross-examination, and the jury instructions.
HOW IT ESCALATES
With each passing day, their wrongful, outrageous behavior and the injustice done to your client grows.
Why?
Because they prove their essential bad character and malicious intent with each litigation thrust and parry. Your conduct is righteous, avenging, and, pure, while theirs only confirms their bad faith. They destroy documents, alter evidence, mislead the Judge, and file pleadings at 5 p.m. the day before three-day weekends.
HOW IT COMES INTO THE JUDGE'S SETTLEMENT CHAMBER OR THE MEDIATION CONFERENCE ROOM
Although no one "takes it personally," by the time you bring your clients to a settlement conference or mediation, they cannot bear the sight of one another.
I have not only been instructed that joint caucuses will not be tolerated, I've been asked to assure that the parties will not lay eyes on one another because the other side's very corporeal existence might so inflame the disputants that the negotiation session will melt down before it has had the chance to begin.
If you are a litigator with at least five or six years of experience representing clients in hotly contested intellectual property litigation of any stripe, you know that I am not exaggerating.
I want you to keep this litigation posture and emotional climate in mind for the next few weeks because all of my posts are going to be based it.
WITH A LITTLE HELP FROM OUR FRIENDS -- ENSURING THE BEST POSSIBLE NEGOTIATION
In the coming weeks, we will be discussing some concepts in the social psychology of conflict that will help you de-esclate the conflict, which will, in turn, help everyone brainstorm and negotiate a deal as effectively and efficiently as possible.
Toward that end, we'll talk about cognitive biases, with a little help from our friend Michael Webster, whose Psychology of Compliance and Due Diligence Law Blog was just last week named one of the ten best legal blogs on the internet.
We'll also rely upon Harvard Business School's Working Knowledge, an invaluable, free resource that will improve every commercial litigator's ability to "cut to the chase" of the business interests that lie at the heart of every great settlement.
Today's post, for instance, in fact the entire series of posts, was inspired by the HBS Working Knowledge Newsletter article -- Why We Aren't as Ethical as We Think - A Temporal Explanation by Max Bazerman (author of the great new negotiation text Negotiation Genuis) and his colleagues Ann E. Tenbrunsel, Kristina A. Diekmann, and Kimberly A. Wade-Benzoni.
Other on-line resources we'll be using to explore this topic include:
Beyond Intractability (this link, for instance, is to our friend Ken Cloke's article on Mediators without Borders, which describes several great techniques for de-escalating conflict).
The Freakonomics Blog, covering, among other things, marketing strategy that often overlaps with negotiation strategy, see e.g. Should Apple Burn its Economics Textbooks here and monetizing the value of spending more time with a loved one here.
Brains on Purpose, our friend Stephanie West Allen's Neuroscience and Conflict Resolution Blog, see e.g. this recent article -- Conflict, Is it All In Your Head?, which appears, along with another cool dozen-plus conflict resolution blogs at Mediate.com's "Featured Blogs" page and Geoff Sharp's 40 Sites in 40 Minutes including Gini Nelson's Engaging Conflicts on such topics as The Ethics of Compromise here and Diane Levin's Online Guide to Mediation on such topics as Is Your Negotiating Style Leaving Value on the Table? here.
Roger Dooley's brilliant Neuromarketing Blog, see e.g. our Negotiation Blog post on Small Talk and the Value of Joint Sessions here.
The Legal Theory Blog, see e.g. Negotiation and Time Perspective.
The Trial Lawyer Resource Center, whenever we need reminding that trial may well be the better alternative to a negotiated resolution, and to avail ourselves of the settlement insights posted there such as Listening During Settlement Negotiations.
Malcolm Gladwell's Blog (the Tipping Point and Blink), see, e.g., this post on why journalists failed to detect the Enron debacle.
The texts on which we usually rely will also be cited to assist you, including
Professor Leigh Thompson's introductory-intermediate guide to negotiation, The Mind and Heart of the Negotiator (2d ed) -- the first chapter is online here.
Lax & Sebenius' essential 3D Negotiation -- excerpt online here.
Bazerman and Malhotra's newest compilation of negotiation advice, with which to earn your own post-graduate negotiation degree, Negotiation Genius.
The American Bar Association's massive compendium of negotiation strategic and tactical advice, The Negotiator's Fieldbook (online chapters include Analyzing Risk by Jeffrey Senger)
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Money, Possessions, Virtual Reality, Knockoffs, Patents, Friends, and the Wages of Conflict Avoidance: A Day with the Sunday New York Times
(right: 1915 New York Times logo from the Project Gutenberg eBook)
It's one of those days when nearly everything in the massive Sunday New York Times seems laser-directed at my interests, which also happen to be those of the IP ADR Blog. So in case you didn't have my relaxing reading day, here are the good reads from today's NYT.
- how and why we deal with money and possessions the way we do (Even in a Virtual World, Stuff Matters);
- new ways to value the intangibles driving the post-industrial economy (Re:Framing - When Balance Sheets Collide with the New Economy);
- the painful personal results of conflict avoidance (much more about this soon) (How to Avoid, Well, You);
- poker strategy and tactics (yes, law/busines/IP is more poker than Clue) (When to Hold 'Em, and When to Go to Poker School);
- patent reform (of course) (House Passes Bill to Curb Suits by Patent Owners)
- wait for a final ruling, negotiate settlement or pursue an at-risk launch -- Teva weighs its options after federal court refuses to enjoin its release of a copycat generic (Wyeth Loses Bout in Fight on a Generic);
- a challenge to negotiation orthodoxy raised by San Diego, California real estate "range pricing" to encourge the parties to negotiate in the ZOPA (A Pricing System with Wiggle Room); and, finally,
- the history of knockoffs (The Knockoff Won't Be Knocked Off) (more on this later as well).
That's it. It's one of those rare Sundays when, as a result of our interior painting project and the kindness of neighbors whose new pool was finally ready to be christened, I could read the entire Sunday New York Times.
IP ADR Dictionary: E is for Empathy: Bringing Your Clients in from the Cold
(photo, right, E and F by ednothing)
We were about to move on to "F" is for the Future in the IP ADR Dictionary, having already said that "E" is for Entrepreneurial Integrative Bargaining and, more simply, "E" is for Emotion.
But then we saw yesterday's Lawsagna post Three Kinds of Empathy and couldn't resist applying it to your IP disputes.
Lawsagna not only defines the three types of empathy (according to Paul Ekman) but also has a bunch of great links on its uses, so please do check it out there.
The bare bones are:
- “Cognitive empathy” is “knowing how the other person feels and what they might be thinking. . . .
- “Emotional empathy” is . . . a state [of] “feel[ing] physically along with the other person, as though their emotions were contagious.”
- “Compassionate empathy” [is] understand[ing] a person’s predicament and feel[ing] with them [in a way that] spontaneously move[s you] to help, if needed.”
THIS IS WHY YOU NEED TO BRING THE BUSINESS PEOPLE TOGETHER AT SOME POINT IN THE MEDIATION OR SETTLEMENT NEGOTIATION TO BREAK THE IMPASSE
I have a million stories about the parties more or less spontaneously settling litigation after hours and hours of impasse in shuttle negotiation. See e.g., Conspiracy Theories and Granfalloons.
Impasse-busting joint caucuses are particularly useful in IP negotiations because the parties are so often in the same business or industry and the lawyers, for all of their industry experience, are not.
Listen, the clients have so much in common that you don't even need to search for the semi-meaningless-empathy-building-"granfalloon" of shared experience (same nationality, same language, same military service, same college, same hometown,etc.) to get the three empathy principles working in your favor. Shared experience is in your clients' genetic structure.
I never commence a mediation in joint session because at that stage of the settlement negotiation, all the parties want to talk about is why they're going to win -- not a terrifically useful way to start a productive business negotiation.
But I never let the parties leave the mediation without putting them together, with or without attorneys and mediator, in a last ditch effort to make a deal.
YEAH, LIKE WHAT, YOU ASK
In one case -- a lawsuit over the design of an Hawaiian shirt -- I was the second mediator to attempt settlement of copyright litigation that had been extremely contentious. We were moving in such small increments toward a potential settlement (in the nano- and stratospheres) that we were essentially at impasse all day long.
When I suggested a joint session, counsel said, "why do you think Party A will be able to explain to Party B better than you why he should pay us what we want?"
My response? You can predict it, I'm certain.
"These guys negotiate more deals in a day," I said, "than we litigators negotiate in a month or a year. Let them try to do what they're best at doing."
I then coached both of the parties before their meeting (without counsel or mediator) but I don't think I needed to. They emerged 20 minutes later with a business deal.
When I asked how they had accomplished it (they were both smiling and proud of the result), one of them recounted, to the other's evident pleasure, "well, we talked about baseball for a couple of minutes and I said 'how about $X?' He mentioned his son joining a LIttle League team and I told him my son had just been made Captain of his high school football team. He responded to my demand by saying, 'I really don't want to pay more than $Y.' I asked 'how about Q' and we shook hands on the deal."
"We didn't want the lawyers to look bad," he concluded, looking around to see that the attorneys weren't within hearing range, "so we decided to stay in the room and talk a little bit about business before coming back out. The deal was done in only five minutes."
And this is a common experience, not a rare one-off.
Lesson?
Trust your clients to have the capacity to empathize with one another's business plight and their skill in cutting a deal that is genuinely best for them. These guys were seasoned business men in one of the toughest and most aggressive industries in the world. And yet they emerged from that joint session like little kids who'd just hit a home run.
Bring your clients and their considerable negotiation skill-set back in from the cold and they will thank you for it by bringing you their buisness the next time their first response is to bomb the bastards back into the stone age.
And with that, we finally leave the letter "E."
