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

As I mentioned in my last post, I decided to more or less abandon the IP ADR Blog and pursue a more general blog about Commercial ADR, including arbitration and mediation, focusing on the business of business and the substantive laws with which business people and their lawyers must grapple, recommending litigation in some cases, arbitration occasionally and mediation and settlement (a lot!)

One of the long-standing members of the IP ADR Blog and IPADR.COM, as well as my good friend and Straus Institute colleague Eric Van Ginkel, will be picking up the baton and continuing to write about IP issues, both nationally and internationally, with the assistance of attorney Robert Rose at Sheldon Mak and a few other IP experts.  Even I'll be staying around and contributing a post or two whenever I have IP thought.

• Email This
• Print
• Comments
• Trackbacks

• Email This
• Print
• Comments
• Trackbacks

I was once contacted by one of the writers for the hit series House who wanted to know what the parties may do doing a mediation.  After explaining several current mediation "processes" to him, I said this. 

The beauty part is that you can actually do anything you want during a mediation.  There are no rules.

Then we had a great conversation about what Dr. House might do in a mediation, none of which made it to the screen because it was too wild to appear there  But we had a lot of fun. 

Mediation advocacy is not too much different from trial advocacy except that the page is blank.  The stage is empty.  The computer hasn't yet booted up.  The first word hasn't been penned.  None of the characters has spoken.  The sun is not yet up.  

As our former national poet laureate Billy Collins has written in his great poem Aristotle,

This is the beginning.
Almost anything can happen.
This is where you find
the creation of light, a fish wriggling onto land,
the first word of Paradise Lost on an empty page.
Think of an egg, the letter A,
a woman ironing on a bare stage as the heavy curtain rises.
This is the very beginning.
The first-person narrator introduces himself,
tells us about his lineage.
The mezzo-soprano stands in the wings.
Here the climbers are studying a map
or pulling on their long woolen socks.
This is early on, years before the Ark, dawn.
The profile of an animal is being smeared
on the wall of a cave,
and you have not yet learned to crawl.
This is the opening, the gambit,
a pawn moving forward an inch.
This is your first night with her, your first night without her.
This is the first part
where the wheels begin to turn,
where the elevator begins its ascent,
before the doors lurch apart.

Mediation is a writers' blank page.

Writing is easy. All you do is stare at a blank sheet of paper until drops of blood form on your forehead. - Gene Fowler

Aside from writers' block, I have no answer to the question why there isn't more great mediation advocacy.  But I can steer you in its direction.  Take a look at Stephanie West Allen's interview with Diane F. Wyzga -- an attorney, nurse, and a professionally trained storyteller, who helps lawyers tell their clients' stories to juries.  Read the entire interview.  I provide only a tantalizing excerpt below.  Then we'll talk more about mediation advocacy next week.  As attorney Wyzga explains:

What could I teach a lawyer about storytelling? Robert McKee had the answer:

Storytelling is the art of expressing meaningful change in the life situation of a character in terms of values to which the listener reacts with emotion.

This is what lawyers do all the time! I just needed to overcome law school’s linear analytical training that says he who dies with the most facts, wins. And show lawyers how we listen to stories.

In the grip of a heartfelt story artfully told, the factfinder listener’s mind is fully engaged creating a parallel world of social judgment based on their world views and experiences. Now the attorney and factfinder are one: working in concert in a cooperative enterprise considering options, possibilities and outcomes.

As of a recent verdict in June, I have 11.11 million reasons why I continue to believe that a heartfelt story artfully told using language with power, passion and precision will engage your jury every single time.

Read on here . . . .

• Email This
• Print
• Comments
• Trackbacks

As you can tell from our IP ADR Dictionary here, we're word and definition freaks at the IP ADR Blog.

So we're pleased to pass along IP ADR Blogger Les Weinstein's recent note to take a look at the latest Intellectual Property Dictionary.

This book brings together articles by leading international scholars from diverse disciplinary perspectives who focus on the legal, social and cultural dimensions of intellectual properties - including patents, copyrights, trademarks, trade secrets and rights of publicity.

These articles employ a creatively eclectic approach to the study of intellectual property law and policy viewed through the lenses of traditional doctrinal analysis, historical perspectives, critical cultural study, and empirical examinations of intellectual property in action.

The volume also directs critical attention to the significance of intellectual property in contemporary processes of globalization and political economy.

The author and board of editors on this one form a pretty impressive group.

Author Rachel Gader-Shafran has a BA in Political Science from UCSB, an MA in applied linguistics from UCLA and a JD from American University, Washington College of Law, cum laude. The author has taught as an Adjunct Professor at American University, Washington College of Law and has published The Intellectual Property Law Dictionary with Law Journal Press and The International Students' Survival Guide to Law School in the United States . . .  continue here.

Board of Editors

Christine Haight Farley is an Associate Professor of Law at American University, Washington College of Law. Professor Farley teaches courses in Intellectual Property Law, U.S. Trademark Law, International and Comparative Trademark Law, and Law and the Visual Arts . . . continue here. 

Peter Jaszi teaches at the Washington College of Law of American University in Washington, D.C., where he also directs the Glushko-Samuelson Intellectual Property Law Clinic. He specializes in domestic and international copyright law. Prof. Jaszi is an experienced copyright litigator and a frequent speaker to professional audiences in the United States and abroad. . . continue here.

Leonard Klein is Legal Research Librarian and Intellectual Property Subject Specialist at the Jacob Burns Law Library of George Washington University Law School. In addition to providing research support to faculty, students, alumni and visiting scholars, he selects new resources for the Library's extensive intellectual property collection. . . . continue here. 

Eliav Korakh is a partner at Borochov, Korakh, Eliezri & Co. He specializes in Patent Law and deals with the USPTO and international agencies in his practice. He has particular experience in the areas of computer hardware and software, telecommunications, optics, applied mathematics and physics, electronics and medical devices, and business and commercial Law. . . . continue here.

Here's the link to purchase the book if you'd like to add a hard copy IP Dictionary to your bookshelf.

• Email This
• Print
• Comments
• Trackbacks

Here's the thing about bullying.  When you do it in public, champions will arrive on the scene to do battle.  According to the recent ABA article Oregon ‘Ground Zero’ in RIAA Battle Against File-Sharing,

in filings this week, Attorney General Hardy Myers' office said the Recording Industry Association of America's litigation tactics may violate his state's data-mining laws . . . [and] called for an investigation of the recording industry's tactics.

In response to the RIAA's muted characterization of the AG's attempts to protect its citizens as  "misguided," New York lawyer, Ray Beckerman (The Recording Industry vs. the People) . . . says that the "the Oregon AG's move to question the RIAA's tactics is long overdue."

 "The RIAA has been bringing fake copyright infringement lawsuits, the sole purpose of which is to get the names and addresses of John Does. . . . The strategy is then to drop the case and pressure individuals to settle, he added.

For those who missed our first post on this issue here, we once again provide an explanation of bullying from the social scientists.  

Bullying, they tell us, is the repeated and deliberate abuse of power by one person or group over another person or group.

The social context in which bullies flourish?  Relatively stable social groups with a clear hierarchy and low supervision.

Why?  Because hierarchy – a system that ranks people one above the other -- makes low-status individuals visible, easy to get at and less likely to receive protection by their peers. 

When you bully a State's citizens in full view of that State's arm of justice, however, you can't expect that you -- the sixth grade bully -- can continue to shake down the third graders for their lunch money.

Kudos to the State of Oregon for riding to the rescue!

For college students targeted by the RIAA -- and those who might be -- attorney Beckerman provides his practical and legal advice here.

• Email This
• Print
• Comments
• Trackbacks (1)

(right:  Los Angeles IP and Entertainment attorney Richard Jefferson)

Some comments deserve their own post and this is true of Richard Jefferson's thoughts on our recent post Red Hot Chilis and Showtime Californicate in the Los Angeles Superior Court.   

After reading over the Complaint, I now see legally how the Red Hot Chili Peppers (the "RHCP") were able to get this case in Court without being accused of blatantly filing a frivolous complaint.

The RHCP have coupled a claim for unfair competition and dilution regarding the TV show title (which looks like a weaker claim on its face) with the stronger claim against the TV Show's soundtrack release (the Californication soundtrack). Of course, the media headline is going to pick up on the more publicized RHCP Album Name vs. TV Show element, but this is typical of the media game in Hollywood.

There are a number of issues that make this case an interesting case to follow, such as the claim that the RHCP's album title has acquired a "secondary meaning" that will transcend trademark categories and the fact that Showtime actually applied for a federal trademark for "Californication" in the TV series category.

Like most entertainment cases, it appears to me that this is just another case of "who has the bigger pockets to pay their lawyers". I suspect that there were extensive pre-litigation correspondence between the parties and Showtime never reached a settlement number that was high enough for the RHCP so they sued.

Also, not only is this good exposure for the band but the way that the media has spun the story so far, Showtime is getting some good pub as well by making it seem like this is a far fetched claim.

Thanks for the thoughtful analysis Richard!  Much appreciated.

• Email This
• Print
• Comments
• Trackbacks

When a body as pro-business as the American Bar Association calls out an industry group for bullying, it's time for that organization to take a close look at its behavior in the marketplace. 

Remember, it's not just about the law. 

It's about civilization, community, ethics, even etiquette. 

It's about making allies rather than enemies.  It's even about -- gasp -- doing good.  Or at least not doing any harm.

(image from Will Blog for Experience -- RIAA:  Screwing You Since 1952)

So why is the Recording Industry of America Association the likely winnner of the IP ADR Dictionary's 2007 Bully Award?

Because it continues to act like a sixth grade kid shaking down the first graders for their lunch money on the primary school playground. 

But first the definition of a bully in his full social context.

In their 2005 article Bullying roles in changing contexts: The stability of victim and bully roles from primary to secondary school academics Mechthild Schafera, Stefan Korna, Felix C. Brodbeckb, Dieter Wolkec, and Henrike Schulzdam use as their "bully" definition the systemic one:

[the] repeated and deliberate . . abuse of power [which is] most likely to occur in relatively stable social groups with a clear hierarchy and low supervision, as is found in schools, the army, or in prisons.  

In this context, say the authors "[a]n aggressive individual’s search for dominance can be facilitated by a hierarchical structure in that it makes low-status individuals visible and easy to get to."

This definition of systemic bullying fits to a "T" the behavior described in the recent ABA Journal article Plaintiff to RIAA:  Download This! 

The attorney subject of the article who is litigating a malicious prosecution suit on behalf of a woman wrongfully sued for illegal downloading, says that the RIAA, 

targets people [for downloading infringement actions] without the resources to challenge the lawsuits. . . 

According to [the malicious prosecution filed on behalf of his client] a support center employee told [Plaintiff] that unless she paid the [RIAA] $4,000-$5,000, she would be ruined financially. Additionally, the action states, the claim center employee told Andersen that he believed she was innocent, but she should pay something anyway.

“He explained ... that defendants would not quit their attempts to force payment from her because to do so would encourage other people to defend themselves,” the complaint states.

At issue is the RIAA's methodology for identifying infringers, a methodology that is not "100 percent" according to law professor Jonathan Zittrain. 

According to Zittrain, a professor at Harvard Law School and the University of Oxford, none of the infringement actions has gone to a verdict.

Some suspect that many of the association’s suits have resulted in default judgments because many defendants cannot afford legal representation. Cases might settle for far less than the initial demand.

“I heard of a $300 settlement they just took,” says Jason Schultz, a senior staff attorney with the Elec­tronic Frontier Foundation. According to Schultz, the RIAA outsourced much of the copyright infringement litigation “factory style” to small law firms, and it hired nonlawyers to negotiate settlements.

Though Jonathan Lamy, RIAA’s senior vice president of communications, claims that the group’s investigation methods are sound and that it is not pursuing those who cannot afford legal counsel, everyone knows that few ordinary citizens could afford the legal representation necessary to defend themselves against the type of aggressive and well-orchestrated campaign described by the ABA article.

So why is this bullying?

Bullying, like pornography, is one of those things you know when you see.  That the RIAA's illegal downloading campaign perfectly fits the academic description of bullying therefore comes as no surprise.

The RIAA's "deliberate and repeated" use of powerful computer technology to investigate consumers' downloading activity, coupled with its well-orchestrated use of an army of low-paid attorneys and collection agents to deliberately and repeatedly bring suit against consumers who might be potential -- but certainly not proven -- illegal downloaders is marketplace bullying at -- frankly -- its most shocking.

And though the RIAA spokesman insists that it does not "target" those who cannot afford legal representation -- how many of us -- even the professionals among us -- could? 

This is systemic bullying at its most definitional

[the] repeated and deliberate . . abuse of power [which is] most likely to occur in relatively stable social groups with a clear hierarchy and low supervision, as is found in schools, the army, [] in prisons . . .

or simply in the marketplace.

Nobody likes a bully.  It's time for the RIAA to do a little soul searching about its place in the society that supports its members by buying their products.

When its the ABA  -- not the ACLU -- that marks you as a school yard bully, you're not making any friends -- only enemies.  And no organization, no matter how powerful, can afford that.

• Email This
• Print
• Comments
• Trackbacks

(above, art imitating the truth -- Billy Flynn: Would you please tell the audience... err... the jury what happened? -- Razzle Dazzle from Chicago)

Why are we back to the "B's" and more particularly, why are we back to BATNA?

Because I've been mediating more "pure money" cases lately and recalling for my litigants the central fact of settlement life.

IF YOU'RE NEGOTIATING THE SETTLEMENT OF A LAWSUIT, YOUR "BETTER ALTERNATIVE TO A NEGOTIATED AGREEMENT IS A JURY VERDICT."  PERIOD.  END OF STORY.

This is why we're so happy to have found a new legal blog called Deliberations, which is all about the psychology of jurors; what they like; who they'll hate; what their predilictions and pre-dispositions are and how you and your clients might be able to influence them to decide the case in your favor.

As the Jury Research people teach us (here, by the way are two of the best jury consultants in Southern California, if not the nation, Chris St. Hilaire of M4 Strategies and Tom Bernthal of Jury Insight -- see the recent $15 million verdict largely credited to Bernthal's efforts) the jury is not comprised of your law school class, your university friends or even your high school classmates.   

Who is it composed of and how do they think?  That's the problem.  You and I -- no matter how down to earth we believe ourselves to be -- have NO IDEA. 

This week, however, Deliberations helps us out by telling us just how many jurors will likely be struggling with alcoholism and drug addiction in their families when we voir dire them and by pointing us to this great NPR (must read) quiz on the American Jury System.

The author of Deliberations, Anne Reed, a trial lawyer and jury consultant at Reinhard, Boerner & Deuren in Milwaukee, recently suggested to me that trial lawyers, jury consultants and mediators "might have something in common."  

Oh yes.  YOU -- trial lawyer, jury consultant, jury -- are the other side of my equation.

YOU ARE MY DISPUTANTS' BATNA.

• Email This
• Print
• Comments
• Trackbacks

(right, from car-toon-studio, just in time for halloween, a dementor)

Straight from Slashdot's mouth to IP ADR's ear we get the very truth from IBM about its plan to corner the market in marketplace bullying with its Patented Protection Racket.  

It boggles the imagination. 

So what is ADR about this? 

ADR is soul, man.  And IBM, for reasons known only to someone in legal, wins the monthly IP ADR anti-soul prize.  I.B.Dementor.M.

Read on . . .

Wikipedia defines a protection racket as an extortion scheme whereby a powerful non-governmental organization coerces businesses to pay protection money which allegedly serves to purchase the organization's 'protection' services against various external threats. Compare this to IBM's just-published patent application for 'Extracting Value from a Portfolio of Assets', which describes a process by which 'very large corporations' impress upon smaller businesses that paying for 'the protection of a large defensive patent portfolio' would be 'a prudent business decision' for them to make, 'just like purchasing a fire insurance policy.' Sounds like Fat Tony's been to Law School, eh?

• Email This
• Print
• Comments
• Trackbacks

First Let's Talk About Anger

Please raise your hand if your clients -- corporate clients -- are angry about the burdens of litigation.  Irritated with the document "demands" and interrogatories.  Frustrated about the e-discovery.  Ticked off at the way opposing counsel asks them questions as if they're lying.  Hot under the collar about the mounting attorneys' fees and the distance between the day suit was filed and the probable day on which a trial might eventually be scheduled.  Simmering about the time the litigation consumes, time they'd prefer to be spending doing their actual jobs -- planning for and implementing business strategies for a profitable future instead of fighting about the unprofitable past.    

And we're not even talking about your clients' anger at the defendant who has stolen their intellectual property or that of the company they work for.  And if you believe that powerful people in highly sucessful and profitable businesses do not fear that litigation might hurt their careers, follow the Qualcomm/Broadcom e-discovery story and the fate of its general counsel for a little while, here, here and here.  

Why I'm Talking About Anger

Dealing with anger is my job.  As a negotiation coach, mentor, facilitator, and mediator, I need the parties to intellectual property litigation to be thinking as clearly as they possibly can when challenged to settle an important piece of litigation.  Everyone arrives at the mediation in some degree of anger -- from mild irritation to controlled rage.  Because anger tends to prevent the parties from thinking clearly and from sharing information that would dramatically increase their ability to achieve the best possible negotiated resolution, I'm usually called upon to help the parties move from hostility to collaboration.  

So What's "Fundamental Attribution Error"? 

Social scientists who study the reasons people act the way they do have discovered something fundamental about the way we explain to ourselves the behavior of others.  What researchers have found is that whenever someone else's behavior causes us harm, we tend to assume that person intended to cause us the harm we experience or, at a minimum, caused us harm by virtue of their carelessness in regard to our well-being.       

If our spouse arrives home late on the evening we've scheduled an outing with our friends, we'll  reflexively blame their tardy arrival upon their desire to thwart our plans or their careless planning.  Our spouse, on the other hand, will reflexively ascribe his late arrival to traffic conditions.  Though both spouses might be at least partially right, the injured spouse will almost always ascribe her harm to her husband's intentional or careless conduct and the injury-causing spouse will almost always ascribe her harm to the traffic or the weather or an unexpected but necessary business obligation.

Why do we make this error in our dealings with others?  Because we crave control.  If we attribute the cause of our harm to the intentional or careless conduct of the person who harmed us, there is some chance that we can convince them -- by way of "punishment" for their misdeeds -- not to do it again.  If it's really not their fault, there is no way we can prevent a similar occurrence from taking place in the future.     

So What Does FAE Have to Do With Settling IP Litigation?

First, FAE makes us angry, preventing us from thinking as clearly as possible.  

Secondly, FAE prevents us from seeing "our own part" in the conflict at hand.  This latter effect has been found by researchers to prevent athletes, for instance, from finding and addressing the causes of their substandard performance.  Why?  Because in ascribing their substandard performance to the fault of others, they fail to search for and find those causes over which they have actual control, i.e., the errors they are making that cause them to fail.

When Everyone is Able to Give Everyone Else the Benefit of the Doubt, Tension Eases and the Parties Can Work on Their Mutual Problem Collaboratively and Effectively.

Now that you know about fundamental attribution error, you can never again be quite so perfectly certain that your righteous indignation is justified.  You might just be able to give your opponent the benefit of the doubt.  He is not the malicious, cheating liar you believe him to be.  And you are not the saint upon whom harm has been imposed without any fault of your own.

Most people are so certain that the conflict to be resolved is the other guy's fault that they can't even begin to see that resolving the dispute is a mutual problem that is best resolved by way of collaboration rather than further posturing, hiding evidence and "spinning" one's tale of loss, injury and innocence.

Because I could write an entire book on this subject, I think I'll just stop there and let you and your clients ponder it for a little while.  It may sound ridiculous, but learning about FAE made all of my relationships much better almost immediately. I think understanding it might help my readers out as well.

For other law- and business-related blogs addressing FAE, click here, here, here, here and here.

• Email This
• Print
• Comments
• Trackbacks (1)

This post is brought to you by the letter "I" for Innovation.

Thanks to BlogRiot for the post here with designer's statement and Stumble Upon for taking me places I've never been before!  If you can avoid the StumbleUpon addiction, you may add "stumbling" to your list of "productive procrastination"  techniques.  It could be worse.  You could be watching television or suing someone for patent infringement.

• Email This
• Print
• Comments
• Trackbacks

The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.

Anatole France, The Red Lily, 1894, chapter 7 

 AP Minneapolis from the Los Angeles Times

A woman facing a $222,000 music-sharing verdict asked a judge Monday to overturn it.

Jurors in a case that six record companies brought against Jammie Thomas found that she violated the companies' copyrights by offering 24 songs over the Kazaa file-sharing network. They ordered Thomas, a mother of two who makes $36,000 a year, to pay the companies $222,000.

In a motion filed Monday, Thomas' attorney, Brian Toder, did not argue that she hadn't violated the copyrights. Instead, he said that because the songs could have been purchased online for about $24, the $222,000 verdict was disproportionate and amounted to punitive damages. 

for remainder of article, click here.

Jury Instructions

Copyright law allows damages of $750 to $150,000 per song.

What the Jury Awarded 

$9,250.00 per song.

The Music Companies' Actual Damages

The songs could have been purchased online for about $24.00.  Without itemizing, defense counsel pegged the record companies' actual damages at "less than $151.20 in all."

Who Else the Major Record Companies are Pursuing

According to the Times, the Recording Industry Association of America has sued 26,000 of its individual consumers for damages.  In September, it also sent "a new wave of 403 pre-litigation settlement letters to 22 universities nationwide" on behalf of the "major record companies."  See RIAA News Release here.

Why the Jury Likely Made the Thomas Award So High

If you've been following this story, you don't have to do much guess work to believe the jury was likely punishing the defendant for lying to them on the witness stand.  Although the defendant denied file-sharing on direct examination, documents produced at trial pretty well demonstrated that she was not telling the truth. 

This always pisses the jury off.

What the Jury Didn't Know

• Thomas. a single mother of two, makes $36,000 a year.
• 2006 Executive Compensation for One Major Record Company Warner Music Group as reported to the Securities and Exchange Commission as of January 17, 2007
  • Chairman and CEO Edgar Bronfman, Jr. -- $1 million salary;  $6 million bonus
  • Lyor Cohen, CEO U.S. Recorded Music $1.5 million salary: $4.5 million bonus  
    Michael Fleisher, Exec. VP $ 800,000 salary; $ 1.4 million bonus
  • Chief Financial Officer David H. Johnson $700,000 salary; $800,000 bonus
  • Alex Zubillaga, Exec. VP, Digital Strategy $600,000 salary; $1 million bonus
• The U.S. Bureau of Labor Statistics estimates the average yearly earnings of salaried composers and music directors in 2006 at $53,320.
  

Even Primates Won't Tolerate Econimic Inequities on this Scale

Finally, though I've resisted seeing it for more than 25 years, the Les Misérables "power to the people" song . . . .

Little people know
When little people fight
We may look easy pickings
But we've got some bite

So never kick a dog
Because he's just a pup
We'll fight like twenty armies
And we won't give up
So you'd better run for cover
When the pup grows up!

• Email This
• Print
• Comments
• Trackbacks (1)

Thanks once again to Liklihood of Confusion for its post The Red Cross Fights Back.  The links provided by Confusion's Ron Coleman bring you this nugget from the PR war that we cannot imagine anyone other than the Red Cross winning.

It is particularly regrettable that J&J's lawsuit would seek to interfere with the preparedness mission of the Red Cross – increasingly important post 9-11 – during National Preparedness Month when everyone should be working together to get prepared.

Research shows only 7 percent of Americans have taken the necessary steps to prepare for disasters, but that 82 percent would get prepared if it was easier to do. Red Cross items such as those that are the subject of the amended complaint help families take the necessary steps to Be Red Cross Ready: to get a kit, make a plan and be informed.

The basis for many of J&J's claims focuses on an alleged agreement between Clara Barton and J&J in 1895 . . . 

The Red Cross will aggressively protect its longstanding right to use the Red Cross emblem in support of its humanitarian mission.

Post-9/11 humanitarian relief and protecting American families from terrorism.  Got anything to top that J&J?

See our previous post on interest-based potential negotiated resolutions to this dispute here.

• Email This
• Print
• Comments (2)
• Trackbacks

(photo "or not" by Tal Bright)

O.K., I'm adding B's to the IP ADR Dictionary. First, B was first for Bonobo (coupled with a racy moment of Bonobo physical intimacy).  But really, in any ABC's of negotiation, B must be for BATNA -- the Better Alternative to a Negotiated Agreement.  Lax and Sebenius in their brilliant 3-D Negotiation, call BATNA your "no-deal option."

Whatever you call it, before you knock on the door of any mediation or settlement conference meant to resolve your IP litigation (or pre-litigation dispute) you must know whether the litigation is a better alternative to the range of potential settlement offers that might be presented to you.     

In IP litigation, your BATNA begins with your projection of what the litigation will cost you; what your chances are of prevailing (at trial, on appeal, or on re-trial); and, how much you stand to gain (in dollars, competitive advantage, business opportunities, etc.).  Your opponents' ability to bear the cost is also a critical consideration as well as anticipated changes in the law like the Patent Reform Act recently passed by the House here in the U.S.  The possibility of market changes and alterations of competitors' strategies must also be researched and considered (who, for instance, expected Apple to drop the iPhone's cost by $200 sixty days after its release?)

I have lots and lots and lots to say about your BATNA.  I could, actually, write an entire BOOK on BATNA if someone could find a sexier name for it.  How about Paris Hilton's Sex-Slave BATNA Videotape?  

Today, however, we focus on the expense of patent infringement litigation care of Law.com's Dispute Between Broadcom and Qualcomm Provides Window into World of Big IP Fees, an excerpt of which follows:

If you ever wanted to know how big-name clients negotiate with big-name law firms about work on massive patent lawsuits, Wilmer Cutler Pickering Hale and Dorr has given us all an instructive look.

The Boston-based firm has filed an extensive motion in San Diego federal court detailing its $8.5 million-plus price tag for work on behalf of Broadcom Corp. in a nasty patent dispute with rival Qualcomm Inc.

Some of the highlights include an $850-an-hour rate from the top Boston-based partner assigned to the case, and significantly higher hourlies across the board than another firm charged on the case.

Broadcom did negotiate a significant discount from WilmerHale at one point in the case, and the firm said its rates were fair.

"The rates WilmerHale charges are the same as, or even lower than, the rates it charges to other commercial clients," the motion read. . . .

The motion reveals that Boston-based WilmerHale patent litigator William Lee charged $790 to $850 an hour, hundreds more than local litigators from the San Diego office of McKenna Long & Aldridge. McKenna charged up to $475 per hour for litigation partner Robert Brewer Jr., who manages its San Diego office. WilmerHale associates charged from $275 to $490 an hour.

In the motion and in an interview, the firm said its costs were entirely acceptable.

"We think it's fair and reasonable," said WilmerHale Boston partner John Regan, who, according to the motion, charges $640 an hour. "We think the rates we charge are market rates. Certainly one can't quarrel with the result."

I'm Shocked, Shocked, That Gambling is Going On Here

Anyone shocked by these fees hasn't been practicing in the Southern California legal market for the past ten years.

I too worked on cases in which there was so much money at stake that attorneys' fees of this scale were a drop in the bucket.  You try telling Exxon that the cost of litigation is high.  Its counsel's first response to me was this:  "my client spends hundreds of millions of dollars a year drilling dry holes.  Exxon does not worry about the size of my bills."  

Touche!

You, your opponent and your mediator all know which cases these are.  In these cases, the little lecture about the cost and uncertainty of trial tends to offend the lawyers and clients who do not need schooling in this.

Still, even Exxon might better spend its money drilling for oil than sending its attorneys' children to private schools and Ivy League Universities.  But hey! transferring large sums of money from one player who could afford it to another is how I spent most of my legal practice. 

• Email This
• Print
• Comments
• Trackbacks (2)

(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."

• Email This
• Print
• Comments
• Trackbacks

(photo by Tom Magliery) 

Today's post is brought to you by the letter "E" for emotion.

First of all -- let's not kid ourselves about lawyers, business executives, managers and inventors.  People have been known to draw guns from their waist-bands, pull knives from their boots, engage in fisticuffs or, key one another's cars in suburban shopping malls when Driver A concludes that Driver B has "stolen" "his" parking place.  People have been murdered for this.

But what of the person asserting dominion over the challenged and coveted parking space?  For how long has he owned it?  Generally?  On a typical sunny Southern California day? 

60 seconds?

Now I want you to think about the anger that I've so often seen erupt in a separate caucus when an attorney ventures, for the first time that day, to suggest that the most recent offer to settle a patent dispute is not bad really, particularly given the -- well -- potential problems with the litigation . . . .

Listen, there's nothing wrong with emotion. 

We're territorial.  And when we've created something out of whole cloth, the sweat of our brow, our own hard-earned dollars, ingenuity, creativity, courage, intellect, and, ambition -- our intellectual property -- we're perfectly well justified in getting a little bit heated when someone says they invented it (or patented it) or used its name or imagineered it first.

Why It's So Important to Acknowledge and "Surf" our Emotions in Negotiating Settlement

As Harvard Professor Daniel L. Shapiro (author of Beyond Reason) explains in his terrific essay Untapped Power:  Emotions in Negotiation (the Negotiator's Fieldbook, Schneider & Honeyman, Eds.), emotions can have the following negative impact on negotiations:

• suppressing "resentment, anger or other strong emotions can debilitate a negotiator's cognitive and behavioral functioning" by: 
  • causing us to act in ways that do not serve our long-term interests;
  • consuming "important cognitive energy" that might otherwise be available to "process information [and] think about important substantive or process issues;" or, 
  • incline us to stereotype our "adversary" in negative terms that interfere with cooperative attempts to explore benefits that might be available to both, while
• acting out our anger also has negative consequences such as:
  • communicating to our bargaining partner a degree of hostility that reflects our willingness to go to extremes and unwillingness to soberly reflect upon potential solutions -- conditions that too often lead to premature impasse.

So What's a Justifiably Distressed Negotiator to Do?

Recognizing our anger (rather than denying it) while at the same time choosing to stress the potential for positive fellow-feeling appears to ensure a far more favorable outcome than angry or even aggressive moves at the bargaining table.  

As Shapiro explains:

[N]egotiators in a positive mood achieve more optimally integrative outcomes, use fewer aggressive behaviors and report higher enjoyment of their interaction.  As parties build affiliation with one another and develop fulfilling roles, they become more engaged in their negotiation tasks and experience a state of "flow," a peak motivational experience that is intrinsically and personally rewarding.

The power of positive emotions toward the agreement and toward the other [have the additional benefit of] overrid[ing] the temptation for parties to dishonor their commitments.

Positive emotions also foster cognitive expansion . . . , aid negotiators' attempts to problem-solve creative options to satisfy their interests [and] . . . trigger the release of . . . dopamine, which in turn fosters improved cognitive ability . . . 

[As researcher Barbara Fredrickson has found] certain positive emotions -- including joy, interest, contentment and pride -- all share the ability to broaden attentional, cognitive, and behvioral ability . . . 

[Alice] Isen's research [also] suggests that people experiencing positive affect demonstrate thinking that is flexible, creative, integrative and effcient.  Each of these characteristics is important for an interest-based negotiator, who is trying to brainstorm creative options that satisfy each party's interests.

There you have it.  Not some kum-bay-ya whoo-hoo west coast new age feel-good freak, but a Harvard Professor who has negotiated international business and diplomatic agreements throughout the world reports that acknowledging one's anger, managing it and choosing to use one's positive emotions during any bargaining session will ultimately help us drive the best commercial bargain available.  

"E" is therefore not simply for emotion.  It's also for efficiency, effectiveness and excellence as well.

• Email This
• Print
• Comments
• Trackbacks

In 3-D Negotiation by Lax and Sebenius (listen in your car for eight bucks here) the authors quote former GO Technologies CEO Jerry Kaplan on the working value of the contracts we lawyers draft to memorialize "the deal."

[Lawyers] tend to confuse "the deal," the working understanding between two parties, with "the contract," the written words that attempt to capture that understanding at a point in time.  Words are good for capturing some tings, such as the rules of chess, but not for others, such as how to ride a bicycle.  What makes deals work are not the written words but . . . personal relationships between the individuals charged with making them work.

3-D Negotiation, Chapter Eleven, Negotiate the Spirit of the Deal at 168.

As I'm always saying, the technology companies are "getting" it faster than any other industry in town.  Lax and Sebenius go on to quote Dick Allen, Sun Microsystems' Global Commodity Manager for Memory, who oversaw a billion-plus dollars of purchasers annually.  He too focused his attention on the "ongoing social contract" rather than the precise contractual terms.  When asked for comment, he stressed that

both Sun and our suppliers sign a letter of agreement and put it in a draw.  [I] like[] to keep [my] agreements down to 3 or 4 pages, as opposed to the 30- or 40- page documents the legal staff would prefer in order to cover all contingencies.  The Commodity Team feels that the key to a successful ongoing relationship is based on trust that has been built up over many years, rather than in the words of a legal contract.

. . . Sun shares a lot of technological and strategic information with its suppliers.  This relationship is not based on contracts or monetary exchange during the development phase, but on the common goal of profitably bringing new technology to market.

I have nothing to add.  To wisdom this profound, I simply listen, stay alert for an opportunity to use it in my own business, and then attempt to apply it there.

• Email This
• Print
• Comments
• Trackbacks

Today's post is brought to you by the letter "C."  

The happy little fellow at left is a Capuchin monkey, many of whom have been trained to work for "money" by researchers. (where's PETA when you need them?)

As Forbes Online reported last year in Primate Economics, these monkeys refuse to work if they observe one of their fellows "earning" an unequal share of the rewards.

What does the Capuchin consider "unequal?" Probably pretty much the same thing we do.

Forbes reports that the Capuchin will more or less happily "work" for a "CEO" monkey until the CEO begins to "earn" five times as much food as the "worker" does.

When that critical inequity is reached, the laborer rebels and refuses to work, leaving both monkeys without "income." 

In other words, the capuchin would rather go hungry than participate in a reward system that is radically inequitable. 

And it's not just quantifiable inequities that cause the Capuchin to "strike."  He will also digs his heels in and refuse to go to the office if he sees a co-worker receiving better quality compensation.

The "money" researchers have trained the Capuchin to work takes the form of pebbles that can be traded for food, such as cucumbers.  The Capuchin will happily work for cucumber-trading pebbles unless he sees one of his co-workers receiving more desireable grapes for the same amount of "money."

If this qualitative inequity continues, the cucumber-earner becomes agitated, throws his pebbles out of his cage and eventually refuses to perform any further tasks for the researchers whatsoever.

The obvious take away?

If you want to negotiate the settlement of an IP dispute, you must find a way to "spin" your proposal as fair and reasonable under the circumstances.  It's not just about numbers, it's about the reasons for numbers.

In a post-scarcity economy, primates (read:  people) are less concerned about absolute rewards (wages, goods, standards of living) than they are about how those rewards compare to their fellows'.  As the researchers conclude:

Rewards in a market economy [must be shared].  [The] the essential flaw in systems like communism [however, is that] people are expected to share resources without regard to how much work they do.

We're willing to cooperate.  We just need to be assured that the system in which we labor possesses a reasonable degree of reciprocity. 

• Email This
• Print
• Comments
• Trackbacks (1)

Check out this week's New Yorker article, Swingers here by Ian Parker where you will learn that one set of our ancestors, the Bonobo, lives in a society in which

"female alliances intimidate males, sexual behavior is as rich as ours, different groups do not fight but mingle, mothers take on a central role, and the greatest intellectual achievement is not tool use but sensitivity."

 Why is this an IP ADR item?  Because the collaborative and reciprocal resolution of our intellectual property disputes requires not only our competitive tool (read:  weapon) making ability, but also our sensitivity to the needs and interests of others. 

In a 2003 New York Times article A Course in Evolution, Taught by Chimpanzees, author Nicholas Wade compared the aggressive, violent, male-dominated, territory defending style of the chimpanzees with the gentler ways of the bonobos as follows:

Male[] and female[] [chimpanzees] do not associate in families but in separate hierarchies. Males make females defer to them, with violence whenever necessary, and every female is subordinate to every male.

A female chimp advertises her fertile period with a visible swelling and is then so pestered by males that she may get to eat only at night. . . . 

Though bonobos are almost as aggressive as chimps, they have developed a potent reconciliation technique -- the use of sex on any and all occasions, between all ages and sexes, to abate tension and make nice.

Assuming the common ancestor of people and chimps had social behavior that was essentially chimplike, how much of that behavior has been inherited by people? The unusual behavioral suite of male kin bonding and lethal territorial aggression may look as if it has been inherited with little change. Among the Yanomamo, a South American tribe, the number of males who die from aggression is about 30 percent, the identical rate found among Gombe chimps.

Dr. Wrangham said the consistent pattern of aggression seen at all the chimp sites suggests that male chimps have ''a strong emotional disposition'' to be aroused by the sight of strange males, to form coalitions against enemies, to be sensitive to balances of power and to be attracted to hunting. The same disposition could have been inherited down the human lineage.

Why do we care?  It's not just because we share a single ancestor with both chimps and bonobos and therefore possess the innate characteristics of each, it's also because bonobo behavior can give us hope that we can create a society that isn't focused quite so much on territoriality, aggression, and zero-sum outcomes.

As Ian Parker notes in the New Yorker article, the study of bonobo and chimp behavior 

has a place in the long-running debate about the fundamentals of human nature -- a debate, in short, about whether people were nasty or nice.  Were humans savage but for the constructs of civil society (Thomas Hobbes)?  Or were they civil but for the corruptions of society (Jean-Jacques Rousseau)?

Defining and re-defining achievement -- success -- is a new task for every new generation.  Are we going to continue playing King of the Hill or can we inspire ourselves to reach down into our bonobo nature and solve some of our power problems with fellow feeling?

Of course the real reason for this post is the chance to reprint the photo above -- the female chimp looking so peaceful, even blissful (see the larger photo in the New Yorker) -- in a familiar posture that wouldn't be right to re-print in a blog rated "G" unless the subjects were Bonobos.

And, hey! did you guys have a Bonobo release for that photo?

• Email This
• Print
• Comments
• Trackbacks (1)

Distributive Bargaining (d-stryby-tv bärgn-ng) aka "cutting the baby in half"

(right: King Solomon. Although we use the term "cutting the baby in half" to signify compromise, the phrase refers to Solomon's "reality test" for two women, each claiming to be an infant's mother. When the King suggested cutting the baby in half, the woman who gave up the infant was declared its mother. The term should be more readily associated with integrative or interest-based negotiation because the ploy revealed the parties' true interests, reunited mother with child and saved the child's life.  Not bad for a day's work -- hence the equation of Solomonic with wisdom).

1.  the process by which the parties distribute the substance over which they are negotiating

2.  the “spread” between the parties’ respective bottom lines

3.  a Zero Sum exchange in which whatever one side gains, the other side loses

4.  means of reaching a deal in which one party generally has to suffer the larger portion of the “loss” on the spread

5.  classic “win-lose” negotiation

6.  parties move toward resolution through a series of concessions

7.  when mediating, the parties often use the mediator as a “conduit” for the series of concessions

• Email This
• Print
• Comments
• Trackbacks

TRIZ is a Russian acronym for Theory of Inventive Problem Solving that requires innovators to understand the problem they are seeking to resolve as a system; to imagine the ideal solution; and, solve the contradictions.   See The Essence of TRIZ in 50 Words.

As reported in WIPO Magazine in 2005 (Patent Information: Buried Treasure - page 8):

The TRIZ methodology was developed specifically on the basis of patent information. TRIZ began with the hypothesis that there are universal principles of invention, which are the basis for creative innovations that advance technology, and that if these principles could be identified and codified, they could be taught to people to create or enhance their inventive capabilities.

Large and small companies are using TRIZ to create or improve  products and to elaborate R&D strategies for new technology. TRIZ is just one illustration of how patent information has been exploited as a tool for developing problem solving and innovation strategies.

There are forty inventive TRIZ principles that could arguably be used to resolve social problems, including the resolution of disputes.

I have to admit, however, that I find this problem solving method more complex and impenetrable than any business or legal problem I've ever been asked to solve.  Maybe this is a difference in the way technical and non-technical people think.

What do YOU think about TRIZ?

• Email This
• Print
• Comments
• Trackbacks

Entrepreneurship:  the process of identifying, developing, and bringing a vision to life. That vision may be an innovative idea, an opportunity, or simply a better way of doing something.  The end result of this process is the creation of a new venture, formed under conditions of risk and considerable uncertainty.  See also the Adeologue Blog on Entreprenerial Negotiation.

Interest-based or Integrative Bargaining:   (a) bargaining strategy that focuses on satisfying as many interests or needs as possible for all negotiators; (b) a problem-solving process used to reach a solution that addresses the parties' needs and desires; (c) the alternative to distributive bargaining which focuses on distributing rewards from a single fixed item of value, such as real or intellectual property; a business opportunity; or a fixed sum of money or number or type of goods; (d) an approach to negotiation in which the resources at issue are believed to be unlimited; the parties' creative negotiation strategies able to increase available resources; and, multiple satisfactory resolutions exist.  See Engineering Management Blog on Value Based Negotiation.

Intellectual Property Entrepreneurial Negotiation:  Strategic alignment, as described in Building a Strategy Pyramid at Entrepreneur.com,  is just one of the ways to use interest-based or "integrative" negotiaiton techniques to make your intellectual property more valuable by aligning your needs and interests with those of a strategic partner.  Also see Austin Software Council Start-Up Tips.

And dispute resolution?  Because litigation is just one of the many bargaining chips available to parties in negotiating future business opportunities, all of the above resources can improve your ability to maximize the monetary and future potential value of any IP litigation you have commenced or to which you have been made an unwillingly party.  

• Email This
• Print
• Comments
• Trackbacks