IP ADR Blog

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

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

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

For the uninitiated:

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

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

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

Continue reading here.

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

As David explains:

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

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

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

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

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

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

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

They'll be yours for life.

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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.” 

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“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.

Continue reading here.

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($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.

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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.

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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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(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.

1. how and why we deal with money and possessions the way we do (Even in a Virtual World, Stuff Matters);
2. new ways to value the intangibles driving the post-industrial economy (Re:Framing - When Balance Sheets Collide with the New Economy);
3. the painful personal results of conflict avoidance (much more about this soon) (How to Avoid, Well, You);
4. poker strategy and tactics (yes, law/busines/IP is more poker than Clue) (When to Hold 'Em, and When to Go to Poker School);
5. patent reform (of course) (House Passes Bill to Curb Suits by Patent Owners) 
6. 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);
7. 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,
8. 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.

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(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:

1. “Cognitive empathy” is “knowing how the other person feels and what they might be thinking. . . . 
2. “Emotional empathy” is . . . a state [of] “feel[ing] physically along with the other person, as though their emotions were contagious.”
3. “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."

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