Here are several stories to start your Monday morning with that I was not able to get to last week because of client commitments and some new business opportunities:
The first round of Bilski briefing has been filed with the Supreme Court. Click here for links to the various amici briefs at Patently-O, and here for an analysis of Bilski’s opening brief at BlawgIT.
Victoria Pynchon has an important warning for IP litigators about understanding a client’s insurance coverage at her IP ADR Blog — click here to read the story and here to check out Pynchon’s husband’s new Catastrophic Insurance Coverage Blog. The blog appears to be a good read, but more importantly IP litigators should make sure that they investigate client’s insurance policies early in a case.
William Patry has a new copyright-related blog, Moral Panics and the Copyright Wars. It is a companion to his book of the same name, which is excellent. I had the privilege of receiving an advance copy, which I loved. I will post a review soon. For now though, click here for Patry’s first post on the new blog.
Finally, last Friday, as they were headed into the August recess the Senate confirmed David Kappos as the next Director of the PTO — click here for the PTO’s press release.

Continue Reading IP News Shorts

Welcome to the August 2009 Carnival of Trust. The Carnival of Trust is a monthly, traveling review 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 (click here and here), 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. For my regular Chicago IP Litigation blog readers, this will be a slight departure from the case analysis format you have come to expect, but very similar to my earlier stints hosting the Carnival of Trust and Blawg Review.
It is the trust that matters, not the title.
At IP Think Tank, Duncan Bucknell added to the recent debate in the patent community about whether the IP function should move into the corporate C-level suite, adding a Chief Intellectual Property Office to the ranks of CEO, COO, CTO, CIO, CLO and CMO – click here and here to read Bucknell’s posts. Following up on comments by Microsoft’s Marshall Phelps and Rockwell Collins’ Bill Elkington, Bucknell explained that the issue is not the name, but in a company having an IP champion that earns the organization’s trust and respect, whatever title that person is given:
You have to build your own credibility within your organisation as someone who reliably gets the job done. As you build trust with those senior to you, then your (ongoing?) commitment to communicating the value that can be added using intellectual property will become more prominent.
Make some (achievable) promises and then deliver. The more that you do this, the more credibility will be given to the IP function, and the greater awareness those senior to you will have. Some would call such a person an ‘IP Evangelist’ – I would say that they are just doing their job. People executing on difficult tasks bit by bit has always been what success is about.
As usual, Bucknell’s analysis is excellent. A person’s respect within an organization is at least as important as their title.
Running an organization is all about building trust.
The patent community focused much of its attention this week on the confirmation hearings for David J. Kappos, nominee for Director of the US Patent & Trademark Office. Click here for Patentability’s summary of the hearing highlights and here for a copy of Kappos’s statement at Patently-O. The hearings were relatively short, likely because there appears to be widespread trust in Kappos’s background and abilities. And although much of the hearing focused on procedural patent office issues, Kappos showed he deserved that trust by focusing his statement on his plans to earn trust with all of the stakeholders in the patent world. He specifically addressed concerns that his corporate background could disadvantage individual inventors or academics:
I am mindful that the USPTO serves the interests of ALL innovators in this country, small and large, corporate and independent, academic and applied, and – most importantly — the public interest. While I have spent my career to date at a large corporate enterprise, I am familiar with the concerns and issues of all USPTO constituents – including small and independent inventors, the venture and start-up community, public interest groups, the patent bar and many others – and will reach out to all of them.
Kappos addressed his plans to build trust with his employees at the USPTO:
I am mindful of the incredible dedication of the thousands of USPTO employees, and the essential role they play to the success of the US innovation system. I will work every day with the USPTO employees and the unions that represent them to establish strong, positive relationships grounded in professional treatment for these workers producing work product based on professional judgment.
He addressed the need to build global trust and relationships:
I am acutely mindful that innovation today is global and that IP policy is of paramount importance, not only in our country, but also in the EU and Japan, in China, India, Brazil and many other developing countries. I will use my international experience and my understanding of global IP trends to help this Administration represent, advance, and protect the interests of American innovators in the global arena and to lead the world in developing strong, balanced, inclusive intellectual property systems that advance the well-being of all participants.
And he addressed the need to build trust with the Administration he seeks to join and the American people the Administration serves:
Finally, I am mindful that the office for which I am being considered, working as part of Secretary Locke’s team and within the Administration’s agenda, must be intensely focused on how to serve the American people at this time of economic uncertainty.
Gene Quinn provides proof that Kappos’s trust-building efforts worked in his IPWatchdog post about the hearings (click here to read the post):
In all, what Kappos said was certainly reassuring, and he should have absolutely no problem getting confirmed. If he does stay mindful of the needs of all those who use the USPTO, small, large and in between, and the interests of the diverse industries who sometimes need contradictory things in order to thrive, he will not only be a good leader, but he will be an exceptional leader and might really reform the Patent Office into the entity it can and should be in order to foster economic development and job creation in the US.
Walter Cronkite personified trust.
The passing of Walter Cronkite last month does not have much to do with intellectual property, but I could not do this month’s Carnival of Trust without mentioning Cronkite. To me and so many others, Walter Cronkite embodied trust. Cronkite was the person so many turned to in times of national tragedy, like war, and in times of national triumph, like the Apollo XI moon landing. Naturally, Cronkite’s passing caused numerous reviews of present-day news personalities and almost as many questions about whether times have changed so much that we cannot have another Cronkite. In the Chicago Reader blog, Whet Moser decries a poll that found the Daily Show’s Jon Stewart to be the most trusted newsperson on the air today – click here to read the post. Frankly, the poll does not appear to be scientific and, therefore, not very trustworthy. But I have trouble arguing with the results. I love news. Three newspapers are delivered to my door every morning, and I read each one. Okay, I at least skim each one. I grew up watching the nightly news, but I now finding myself turning to Stewart for news programming more frequently than I turn to Couric, Gibson or Williams. I like and even trust all three. But Stewart has built a more powerful trust with me by calling out the problems with the 24-hour news cycle and by making me laugh. Stewart has some obvious biases, but he makes sure they are obvious and he creates even more trust by poking fun at both sides of most issues. Truth and laughter are powerful trust builders.
Cronkite deserves more than one entry in this Carnival, and the second comes from the Carnival of Trust’s own Charles Green at his Trust Matters blog – click here to read the post. Green breaks down the components of The Most Trusted Man in America: 1) honesty; 2) selflessness; and 3) integrity. Green also explains that Cronkite’s calm, baritone voice reinforced each of the three characteristics. I could not agree more. Hearing Cronkite’s voice is an instant dose of trust.
For those not fortunate enough to develop their own “personal,” trust relationship with Cronkite through his news programming, check out this NPR obituary to get some measure of the man and his history.
Credentials can generate and regulate trust.
At the Mediation Channel, Diane Levin makes a strong argument that legal mediators need to develop an accreditation system – click here to read the post. And IP mediator Victoria Pynchon responds at her Settle It Now blog with her own arguments for credentialing mediators for the good of mediators, the mediating parties and society’s trust in the mediation system as a whole – click here to read the post.
How can companies build trust?
Building trust can be a slow and sometimes uncertain process. At his Touch Points blog, Steve Finikiotis cites a study suggesting that trust in corporation in the United States and other developed countries is at its lowest point ever – click here to read the post. In order to remedy the decreased trust, Finikiotis provides four trust building steps: 1)Focus on understanding and meeting customers’ preferences; 2) Under-promise and over-deliver; 3) Transparency; and 4) Encourage and foster feedback.
And although Finikiotis did not focus on this example, last month Amazon showed just how those steps do build trust. Amazon was accused of copyright infringement when a digital book seller used a self-service program to sell unauthorized copies of several books, including George Orwell’s 1984, to Amazon Kindle users. When Amazon learned of the alleged infringement, it erased the books from its customers Kindle accounts. As you might expect, there was a public outcry. Kindle users were upset to learn that books they purchased and felt they owned could be removed from their devices and accounts. And Amazon sprang into action following Finikiotis’s four steps:
Amazon listened to its customers’ frustration at having the books removed and the possibility of future removals;
Amazon replaced the books;
Amazon’s founder and CEO, Jeff Bezos, issued the following very direct and honest apology:
This is an apology for the way we previously handled illegally sold copies of 1984 and other novels on Kindle. Our “solution” to the problem was stupid, thoughtless, and painfully out of line with our principles. It is wholly self-inflicted, and we deserve the criticism we’ve received. We will use the scar tissue from this painful mistake to help make better decisions going forward, ones that match our mission.
With deep apology to our customers,
Jeff Bezos
Founder & CEO
Amazon.com
4. Through its response and apology, Amazon fostered feedback.
Amazon turned a negative situation into a very positive one. As a Kindle owner (and lover), I was very happy with the response and it has made me an even more loyal Kindle customer. And others agree. For example, Amazon’s response helped convince PublicOrgTheory blog to go ahead with a Kindle purchase – click here to read the post. And In Propria Persona has qualms with copyright law, but saw the apology as good customer service and said it improves the likelihood of him purchasing a Kindle – click here to read the post. Finally, the Below the Line marketing blog says that “Amazon shows how to apologize,” and notes that customer comments on the Amazon site have been largely positive since the apology; proof that Finikiotis’s steps work. Nice job to both Finikiotis and Amazon.
And with that story of trust done well, thank you for reading, whether you are a regular reader of this blog or a Carnival of Trust groupie.

Continue Reading August Carnival of Trust

Here are several stories and updates worth a read:
I am hosting the August Carnival of Trust on Monday, August 3 here. I hosted once before and really enjoyed the experience — click here and here. 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. If you have trust-related posts from the last month, send them to me. by Friday or Saturday. For other examples of Carnival of Trust posts, check out recent hosts Adrian Dayton and Victoria Pynchon.
I was featured in Stephanie Allen West’s Reading Minds column in the ABA’s Law Practice Management magazine this month — click here to read the column. Along with Jennifer Loud Ungar, Andrew Flusche, and Todd Kashdan, I was asked to recommend a favorite management book. I went with an unorthodox choice, but a valuable read, the Boy Scout Patrol Leader’s Handbook. Here is some of my recommendation:
In the many years since I relied on the Handbook to run Boy Scout patrols, I have found the lessons in this volume to be equally applicable to leading and managing teams of lawyers or businesspeople. The Handbook is a powerful guide for developing successful organizations, maintaining group morale and achieving group success. As an example, it lists these 10 tips for being a good leader: (1) keep your word; (2) be fair; (3) communicate well and often; (4) be flexible; (5) be organized; (6) delegate; (7) set an example; (8) be consistent; (9) give praise; and (10) ask for help. These are words to live by for patrol leaders, lawyers and C-level executives alike.
Michael Atkins has a great post at his Seattle Trademark Lawyer about a strong brand protection program worth emulating — click here to read it.

Continue Reading IP News Shorts

A new blog and several stories I have been meaning to get to, but have not had enough time:
* Tom Patterson, from Chicago, has joined the blogosphere with the Emergency Business Litigation blog, another blog by Lexblog. It does not have an IP focus, but some of Patterson’s first post deal with Federal Circuit decisions regarding injunctions in patent cases — click here and here to read them. Welcome to the blogging conversation Tom.
* The IP ADR Blog has an interesting guest post from Robert Rose discussing patent arbitration rules — click here to read the post. Of particular interest, Rose points out the oft forgotten statutory obligation to notify the PTO of any arbitration award, which is made part of the file history.
* Also from the IP ADR Blog, Victoria Pynchon has posted the slides that were the basis of a February 2009 CLE presentation we did about alternative dispute resolution in patent disputes, a valuable tool particularly in difficult economic times. Click here for Pynchon’s post with the slides.

Continue Reading New Blogs & IP ADR News

I have noticed that my news updates tend to be patent-focused, so today they focus on trademarks and copyrights:
IP Law & Business (subscription required to access the article) has an interesting article in the February/March 2009 issue identifying Justice Ginsburg as the Supreme Court’s “champion of copyright holders” because of recent opinions supporting broader copyrights. The article also identifies Justice Breyer, based on dissents in the same cases, as leading the cause for narrower copyrights. And the article predicts that the Supreme Court is trending toward a narrower view of copyrights.
Seattle Trademark Lawyer Michael Atkins has a timely post (click here to read it) that traces the March Madness trademark back to the Illinois high school basketball playoffs, as early as the 1940s. The NCAA and the Illinois High School Association have since pooled their rights and both have a license to use the marks.
Victoria Pynchon has a great series of posts looking at laches in trademark law based upon a recent Ninth Circuit decision — click here and here.

Continue Reading Copyright & Trademark News

Here are several items from around the web that are worth your attention:
The latest edition of Doug Lichtman’s IP Colloquium is available here and it is another excellent listen. The program looks at copyright’s statutory damages regime through the lens of music downloading. Lichtman moderates an impressive group of experts and stakeholders in the debate. It would be worth the time, even if CLE credit was not available, but it is.
Congratulations to Victoria Pynchon of the IP ADR Blog and Settle It Now on her move to ADR Services — click here to read Pynchon’s post about the move.
The Alternative Patent Dispute Resolution Project at San Diego’s Thomas Jefferson School of Law has an interesting survey up about how ADR should be used in patent cases. No results yet, but I will discuss them here when they are made available. The survey follows up a survey done ten years ago by IPWatchdog’s Gene Quinn. Click here to take the survey.

Continue Reading IP News: ADR & Copyright Damages

Along with the IP ADR Blog’s Victoria Pynchon, I am giving an ALI-ABA continuing legal education teleconference discussing alternative dispute resolution as a low-cost alternative for intellectual property disputes — click here to register. The program is at 12 pm CT on this Wednesday, February 18. Here are ALI-ABA’s program highlights:
Why Attend?
In a difficult economy, intellectual property protection and assertion is more important than ever. The combined stressors of a poor fiscal climate and shrinking legal budgets place a significant strain on any business dependent upon IP assets. as companies face difficult economic decisions, it is increasingly difficult to fit the expense and extended uncertainty of copyright, patent and trademark litigation into a forward looking business plan. This one-hour seminar explores the use of alternative dispute resolution as a means of protecting intellectual property and business activity, while minimizing the expense and devotion of time related to traditional IP litigation.
What You Will Learn
This program examines how to move an IP dispute toward alternative dispute resolution; best practices for controlling the expense and length of the process; and best practices for successful alternative dispute resolution. Whether you are an experienced IP practitioner or simply one grappling with IP issues in your general commercial practice, knowing how to offer your clients a wide array of ADR options might make the difference between a practice that survives and one that thrives. The seminar will cover the following topics:
How to choose between litigation and ADR.
The most successful strategies for guiding your dispute into the best ADR forum at the most productive time.
The five basic rules of “distributive” or “fixed sum” bargaining that will give you the “edge” in all future settlement negotiations.
The five ways to “expand the fixed sum pie” by exploring and exploiting the client interests underlying your own and your opponents’ legal positions.
The Ten Mediation/Settlement Conference Traps for the Unwary.
Invest just 60 minutes at your home or office to learn about alternative dispute resolution in the IP field from this duo of experts. This audio program comes to you live on Wednesday, February 18, 2009, 12:00-1:00 pm CST, via your phone or your computer. Materials corresponding to the course may be downloaded or viewed online.
Planning Chair
R. David Donoghue, Esquire, Holland & Knight LLP, Chicago, IL
Faculty
Victoria Pynchon, Esquire, Settle It Now Dispute Resolution Services, Beverly Hills, CA

Continue Reading Continuing Legal Education: Alternative Dispute Resolution in Intellectual Property Cases

Along with the IP ADR Blog’s Victoria Pynchon, I am giving an ALI-ABA continuing legal education teleconference discussing alternative dispute resolution as a low-cost alternative for intellectual property disputes — click here to register. The program is at 11 am CT on February 18. Here are ALI-ABA’s program highlights:
Why Attend?
In a difficult economy, intellectual property protection and assertion is more important than ever. The combined stressors of a poor fiscal climate and shrinking legal budgets place a significant strain on any business dependent upon IP assets. as companies face difficult economic decisions, it is increasingly difficult to fit the expense and extended uncertainty of copyright, patent and trademark litigation into a forward looking business plan. This one-hour seminar explores the use of alternative dispute resolution as a means of protecting intellectual property and business activity, while minimizing the expense and devotion of time related to traditional IP litigation.
What You Will Learn
This program examines how to move an IP dispute toward alternative dispute resolution; best practices for controlling the expense and length of the process; and best practices for successful alternative dispute resolution. Whether you are an experienced IP practitioner or simply one grappling with IP issues in your general commercial practice, knowing how to offer your clients a wide array of ADR options might make the difference between a practice that survives and one that thrives. The seminar will cover the following topics:
How to choose between litigation and ADR.
The most successful strategies for guiding your dispute into the best ADR forum at the most productive time.
The five basic rules of “distributive” or “fixed sum” bargaining that will give you the “edge” in all future settlement negotiations.
The five ways to “expand the fixed sum pie” by exploring and exploiting the client interests underlying your own and your opponents’ legal positions.
The Ten Mediation/Settlement Conference Traps for the Unwary.
Invest just 60 minutes at your home or office to learn about alternative dispute resolution in the IP field from this duo of experts. This audio program comes to you live on Wednesday, February 18, 2009, 12:00-1:00 pm CST, via your phone or your computer. Materials corresponding to the course may be downloaded or viewed online.
Planning Chair
R. David Donoghue, Esquire, Holland & Knight LLP, Chicago, IL
Faculty
Victoria Pynchon, Esquire, Settle It Now Dispute Resolution Services, Beverly Hills, CA

Continue Reading Continuing Legal Education: IP Alternative Dispute Resolution

Litigators universally struggle to enforce order over complex cases, and patent cases are some of the most difficult. They often include multiple patents, numerous accused products, inventors, experts and often various contracts. Generating systems for both capturing and organizing facts and issues is critical, but difficult. And once you organize it for yourself, you need to find a way to organize it for the Court and then the jury, an even more difficult task.
I have generally used notebooks including marked up copies of the patents, key prior art, any contracts , accused product information and other hot documents. Others use computer programs or even whiteboards. But the Settlement Negotiations Blog (via Vickie Pynchon at the IP ADR Blog) has converted me to mind mapping — click here for the Settlement Negotiations post and here for the IP ADR Blog post. Mind maps allow you to graphically depict all of the critical facts and issues in your case, how they interconnect and to hyperlink to the relevant documents or testimony. And the best part is that you can burn your mind map onto a DVD and offer it to the judge as an aid for resolving summary judgment motions or construing claims. This one graphic depiction of your case with hyperlinks to the evidence could be more powerful than a twenty-five page brief explaining your arguments in detail. Mind maps are excellent tools for creating order from the disorderly facts of a litigation.
Here is an example of what a mind map can look like:

Continue Reading Creating Order in Complex Litigation

Here are several IP posts that you should check out:
* The MTTLR Blog’s Lauren Strandbergh has an interesting post (click here for it) about the implications of the Google Book’s settlement and how the Book Rights Registry — a Copyright Clearance Center or ASCAP-like entity that will, among other things, distribute proceeds from out-of-print books to the authors or rights holders — will change the publishing industry. Strandbergh raises the right questions, but we will only get answers as we ee how the system works.
[UPDATE:] Speaking of the Copyright Clearance Center and ASCAP, the WSJ Law Blog has a post today (click here to read it) based upon this WSJ story (subscription required for the full text) about two new companies that are aggregating patents and guaranteeing never to assert those patents against their members. It is not clear from the story if they plan to assert them against non-members, but it is an interesting move in the struggle between non-practicing entities and corporations that feel targeted by patent litigation. I believe there have been industry-specific versions of these companies in Europe for some time. As I understand some of those entities, the do assert their patents against non-members to help fund operations.
* Victoria Pynchon offers advice for dealing with those uncomfortable Thanksgiving political conversations with family and friends at her Settle It Now Negotiation blog — click here to read it. The advice translates well for unwinable conversations with opposing counsel.
* This week’s Blawg Review is up at LawyerCasting — click here to read it. It provides lots of advice for lawyers dealing with the tough economic times.

Continue Reading IP News & Advice — Thanksgiving Edition