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Don’t Treat Your Lawyer Like a Button

Recently, User Interface Engineering posted an insightful article on how a company generated additional revenue by adding a single button to its website. The company had been requiring customers to provide an email address and create a password before making a purchase. The thinking was that the registration would allow new and returning customers to store their information on the website, so they would not have to reenter the information every time they wanted to make a new purchase. button-blue_benji_park_01

Turns out however, that requiring registration before purchase was turning off a lot of new and returning customers. The customers were fine with providing their credit card numbers and home addresses, but when it came to providing an email address and password, many decided they would rather buy elsewhere. According to one customer, “I’m not here to enter into a relationship. I just want to buy something.”

Upon realizing how its registration process was being perceived, the company added a single button to the website. This button allowed customers to bypass the registration process, enter all of the purchase information from scratch and make a purchase. And the result? An additional $300 million in sales the following year.

While the “I don’t need a receipt for my doughnut” mentality is fine for most transactions, it is not the best way to find the best lawyer for you. You want the relationship. Unfortunately, it is a little more difficult to find a lawyer with whom you can develop a relationship with, than randomly picking names out of the phonebook.

When I provide a referral to another lawyer, I typically provide multiple names. All of them can do the job, but I advise the clients to interview each of them and select the lawyer with whom they feel most comfortable. If they like the lawyer, and the lawyer likes them, there is a far greater chance the discussions will be more open and fruitful. As the relationship develops, the lawyer learns subtleties about the client’s means and goals which will help tailor the legal work to that particular client.

The internet has programmed us to be wary of divulging personal information. This, combined with the high hourly rates charged by the top rated lawyers encourage less openness and a poorer attorney/client relationship. So how do you find the best lawyer for you? Get recommendations from people you trust. Collect several names and research them online. Eliminate the ones you do not feel would not be a good relationship match.

It may surprise you, but one of the primary benefits of this blog is that it causes some potential clients NOT to contact me. Perhaps they do not like my stance on a particular position, or even my sense of humor (such as it is). Over the years, I have determined both those clients and I are better off for not having met. It is not that they are unreasonable clients, or that I am a bad lawyer. It is simply that we likely may not have worked well together. On the other hand, those few clients who have read my blog and still want to hire me often turn into terrific clients, simply because we work well together.

Good lawyers are not buttons. They are advisers, defenders, mediators and most importantly, people. If you go looking for a button to bypass these benefits, you risk losing the most important aspect of the attorney/client relationship.

Brett Trout

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Posted in Choosing the Best Lawyer, Patent Law. Tagged with , , .

By Brett Trout
February 21, 2009

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Top 25 Patent Blogs

Gene Quinn of IPWatchdog has painstakingly combed Technorati for the top ranked patent blogs. He personally reviewed all of the blogs to weed out those which only occasionally discussed patents. Per Gene, all the following patent blogs easily rate in the top 1% of all blogs on the Web indexed by Technorati: finger-puppet

  • Patently-O - Technorati Rank 21,202
  • Patent Baristas - Technorati Rank 61,134
  • IPWatchdog - Technorati Rank 80,245
  • Against Monopoly - Technorati Rank 80,245
  • Patently Silly - Technorati Rank 90,082
  • Chicago IP Litigation Blog - Technorati Rank 117,073
  • PHOSITA - Technorati Rank 101,726
  • Spicy IP - Technorati Rank 129,347
  • PLI Patent Practice Center - Technorati Rank 132,753
  • Duncan Bucknell Company’s IP Think Tank - Technorati Rank 136,348
  • Patent Prospector - Technorati Rank 152,448
  • Securing Innovation - Technorati Rank 162,007
  • Peter Zura’s 271 Patent Blog - Technorati Rank 163,794
  • The Invent Blog- Technorati Rank 167,214
  • Promote the Progress - Technorati Rank 198,166
  • BlawgIT- Technorati Rank 204,976
  • I/P Updates- Technorati Rank 213,371
  • IP NewsFlash - Technorati Rank 221,777
  • Orange Book Blog - Technorati Rank 221,777
  • The IP Factor - Technorati Rank 250,588
  • Philip Brook’s Patent Infringement Updates- Technorati Rank 273,434
  • Patent Docs - Technorati Rank 300,413
  • Antiticpate This! - Technorati Rank 351,677
  • Patent Fools(now operated by IPWatchdog.com) - Technorati Rank 351,092
  • Patentably Defined - Technorati Rank 614,978
  • Steve van Dulke’s Patent Blog - Technorati Rank 676,101
  • IP Spotlight - Technorati Rank 752,199

    • Great work Gene, Thanks to you and to IPWatchdog for introducing us to a lot of great blogs.

    Brett Trout

    PS - The reason there are more than 25 blogs is that Gene has been revising the list as more top Technorati ranked patent law blogs turn up. If you are aware of a patent blog that should be on the list, be sure to drop Gene a line.

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    Posted in Patent Law, Top Ten. Tagged with .

    By Brett Trout
    February 20, 2009

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    Do I Need a Patent?

    Ask a patent attorney whether you need a patent and he or she will likely stare at you like you just asked them if they need a new Jet Ski. Despite possessing a wealth of knowledge about what patents are and what they do, most patent attorneys simply do not have enough information to determine if a patent is right for you. A patent that may be of great value to you, may be of little or no value to someone else. How do you tell?

    Self-described “Recovering Patent Lawyer,” Jackie Hutter, has just posted an insightful SlideShare presentation addressing exactly this question:

    An IP Strategist's Perspective: A Reality Check for Entrepreneurs Who Believe they Need a Patent to Protect Their Idea
    View more presentations from Jackie Hutter. (tags: ip strategy)

    In addition to providing insightful tips on traits to look for in a good patent attorney, Jackie guides you through the “To patent or not to patent” decision-making process.

    When should you pursue a patent? Jackie suggests looking for these three factors:

    1) Your invention has significant business value;
    2) Competitors will likely copy it; and
    3) You have the resources to obtain and defend your patent.

    When should you hold off on a patent? Look for these factors:

    1) Your idea is not associated with an existing business model;
    2) You do not understand the market application of your idea; and
    3) You cannot invest the resources necessary to obtain and protect the patent.

    Even if the foregoing three factors are present, that is not to say you should never pursue a patent on your invention. You may just want to consider regrouping until you have addressed these issues.

    The bottom line is that while patents can be a valuable part of nearly any business plan, they are no pot of gold. Patents do not make money on their own; it is always the businesses developed around the patented invention that makes the money. Trying to profit from a naked idea, or even a naked patent is a fools errand. Unless you have a business model attached to your invention, it is very unlikely that your patent will ever generate enough revenue to pay for itself.

    Brett Trout

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    Posted in Patent Law. Tagged with , , .

    By Brett Trout
    February 16, 2009

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    Top 10 African American Inventors

    In honor of Black history month, I have compiled a list of what I think, are the top African-American inventors of all time. I have also included a representative patent along with each inventor. Since Thomas L. Jennings became the first African American to receive a patent in 1821, black inventors have made enormous contributions to our country. Given the thousands of African American inventors that have followed Jennings, it was quite difficult to settle on only ten. I have tried to include not only those who have contributed to mankind as a whole, but also those African-American inventors we know from other endeavors, or from the interesting inventions they have brought into our lives.

    10. Thomas Mensah BERJAYA Born in Ghana, Dr. Mensah is the Chairman of Supercond Technology Inc. of Norcross, Georgia. Holder of over a dozen United States and International patents, Dr. Mensah’s inventions span the fields of fiber optics to guided vehicle systems. His work with SMART weapons, like the Patriot missile, were critical to the success in the Gulf War.
    One of his Patents: Guided Vehicle System United States Letters Patent Number 5,035,169

    9. Lonnie G. Johnson BERJAYA
    President of Johnson Research Development Co. and formerly with NASA’s Jet Propulsion Lab, Lonnie Johnson is a nuclear engineer with over 100 patents to his name. This Tuskegee alumnus has generated over one hundred million dollars in sales with his world-renown invention, the SuperSoaker squirt gun. He is currently working on a solar energy cell which promises to cut solar energy costs in half.
    One of his Patents: Pinch trigger pump water gun United States Letters Patent Number 5,074,437

    8. Lewis Latimer BERJAYA Everyone knows Thomas Edison invented the light bulb, but few know that it took African American inventor Lewis Latimer to come up with the carbon filament that made it practical. Edison’s original draftsman, Latimer drafted the plans for Alexander Graham Bel’s telephone. Working many late nights with Bell, Latimer worked tirelessly to file a patent on Bell’s telephone mere hours before the filing of a similar patent by a rival inventor.
    One of his Patents:t Electric Lamp United States Letters Patent Number 247,097

    7. Elijah McCoy BERJAYA Elijah McCoy patented dozens of ways to lubricate machinery. One advantage McCoy’s devices had over the competition, was that his inventions made it possible to lubricate machinery while it was running. This eliminated downtime maintenance and increased factory profits. One of his most famous inventions was an oil dripping cup. The oil dripping cup was so wildly successful that competitors worked diligently to copy it. Nothing however, worked as well as the original. That is why, even today, we ask for “The real McCoy.”
    One of his Patents: Lubricator United States Letters Patent Number 472,066

    6. Dr. Joycelyn Simpson As a research scientist for NASA’s Langley Research Center, Dr. Simpson invented a new type of power producing, high performance piezoelectric polymer. When pressure is applied to this polymer, it generates electricity. Utilizing these types of polymers in conjunction with wind and water power may lead to an unlimited, low-cost, environmentally friendly source of power.
    One of her Patents: Thermally stable piezoelectric polymeric substrates United States Letters Patent Number 6,379,809

    5. Dr. Patricia Bath BERJAYA Born in Harlem, Dr. Bath has become an internationally acclaimed ophthalmologist and surgeon. Not content to rest on her laurels, Dr. Bath has dedicated her life to the treatment and prevention of blindness in African-Americans. A pioneer in laser cataract surgery, her laser-powered Laserphaco Probe allows physicians to vaporize sight stealing cataracts in minutes.
    One of her Patents: Method of removing cataracts United States Letters Patent Number 6,083,192

    4. James Edward Maceo West BERJAYA While working at Bell Laboratories in 1964, James Edward West patented the electret microphone. His research led to the development of the foil-electret transducers used in 90% of today’s microphones. Today, Dr. West holds over 40 United States, and over 200 International, patents on microphones and microphone components. He is also a 1999 inductee into the National Inventors Hall of Fame,
    One of his Patents: Electroacoustic transducer United States Letters Patent Number 3,118,022

    3. Percy Julian BERJAYA Granted over 100 patents Percy Julian is best known for his innovative synthesis of cortisone from soy beans. His inventions significantly reduced the cost of manufacturing cortisone used to treat rheumatoid arthritis and inflammation. Julian is a 1990 inductee into the National Inventors Hall of Fame.

    One of his Patents: Preparation of cortisone United States Letters Patent Number 2,752,339

    2. Mark Dean BERJAYA Holder of more than 20 patents, Mark Dean, along with Dennis Moeller, created a computer bus system for controlling the use of computer peripherals like disk drives, video monitors, printers, speakers, and scanners. Dean holds three of the original nine IBM patents on the personal computer. IBM granted Dean an IBM Fellowship in 1996 and, a year later, Dean received the Black Engineer of the Year President’s Award. Dean is a 1997 inductee into the National Inventors Hall of Fame.
    One of his Patents: Bus Controls system for computer peripherals United States Letters Patent Number 4,528,626

    1. George Washington Carver BERJAYA
    Best known as the inventor who could do anything with a peanut, George Washington Carver patented only a small handful of his hundreds of his novel products and methods for improving agriculture. Born a slave, Carver consistently shunned fortune. Interested only in the betterment of mankind, he took no money at all for the majority of his inventions. Granted a scholarship in Kansas, the college refused Carver withdrew his admission after discovering Carver was African American. Carver enrolled at Simpson College in Indianola, Iowa, before eventually landing at what is now Iowa State University the following year. Carver is a 1988 inductee into the Iowa Inventor’s Hall of Fame and a 1997 inductee into the National Inventors Hall of Fame.

    One of his Patents: Process for Producing Paints and Stains United States Letters Patent Number 1,632,365

    It does not take a patent lawyer to appreciate the incredible gifts these extraordinary inventors have bestowed upon us. Without such great minds willing to share their knowledge with the world, future inventors would have no shoulders to stand upon, and the world would be poorer for it. If you have a favorite African-American inventor I have left out, be sure to let me know in a comment below.

    Brett Trout

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    Posted in Top Ten. Tagged with , , , .

    By Brett Trout
    February 12, 2009

    1 comment

    Almost nothing has been invented yet …

    People continue to erroneously attribute the following quote to former Director of U.S. Patent Office, Charles H. Duell:

    “Everything that can be invented has been invented.”

    Far from everything having been invented, we are only scratching the surface. The more we invent, the more others expand upon those ideas. We are continuously standing on the shoulders of taller and taller giants. Thankfully our founding fathers were sufficiently prescient to exploit this exponential advancement of technology. They created a patent system which grants a short term monopoly to inventors in exchange for revelation of their technology to the world.

    In his recent TED talk, inventor Woody Norris may just have coined the mantra for the 21st century:

    Almost nothing has been invented yet

    Brett Trout

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    Posted in Patent Law. Tagged with , , , , , .

    By Brett Trout
    February 11, 2009

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    The Best Lawyer in the World

    I have written several posts on how to choose the best lawyer in the world. Since that time, lawyers have been posting information about themselves faster than they ever have before. The quest can at times seem overwhelming. To make the search easier, I recommend dividing it into two parts: 1) obtain recommendations; and 2) interview those lawyers to determine the best fit with your needs.
    gold_medallion
    Obtaining recommendations allows you to identify the lawyers with the expertise you need. Any lawyer can pay for a yellow page add or throw up a website. It is a much smaller group which can generate a consensus regarding making clients happy. Be aware that all recommendations are not created equal. If you are looking for a patent attorney, ask your current attorney for a recommendation. By recommending another attorney, your attorney is attaching his or her reputation to the quality of their recommendation. Given that your continued business relationship may be on the line, you should afford such recommendations greater weight that a recommendation from someone without any skin in the game.

    Weigh recommendations from former clients of the lawyer greater than recommendations from others, including attorneys, who have not actually worked with the attorney. Nothing substitutes for actual performance. If a former client is happy, you are more likely to be happy as well. Finally, weigh the recommendation of an attorney much greater weight than the recommendation of a law firm. If you walk in with the intention of hiring a firm rather than an attorney, odds are you will not be walking out with the best and brightest the firm has to offer.

    Once you have a handful of recommendations, search for information about them online. Call them and ask questions. Briefly explain your situation and ask for their thoughts. You may be able to narrow the field down even further based upon experience, location, background, hourly rate, demeanor etc. Most importantly, set-up an in-person interview with your final group of candidates. What might be the best lawyer in the world for one client, might not be for another. Even for clients I have worked with for over a decade, I still recommend multiple lawyers. The qualifications of your final list of attorneys will be very similar. Any one of them should be equally capable of obtaining a favorable outcome on your behalf. The only difference will be the personal chemistry you have with the attorney you hire.

    The core of any attorney/client relationship is communication. Better communication translates into cheaper, faster and better representation. Choose the attorney you feel communicates most efficiently with you and who best grasps your concerns. Assuming the attorney has the requisite skill set you need, basing your final selection on the quality of communication will pay greater and greater dividends as the relationship continues. Regardless of whether the attorney was or was not the best lawyer in the world when you met him or her, after years of solid communication the attorney will likely become the best lawyer in the world for you.

    For more on the Best Lawyer in the World, check out these earlier posts:

    The Best Patent Lawyer in the World
    The Best Patent Lawyer in the World (Part Deux)
    The Best Patent Lawyer in the World
    The Best Lawyer in the World
    Find a Good Lawyer
    Lawyer Bait and Switch

    Brett Trout

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    By Brett Trout
    February 10, 2009

    1 comment

    ESPN Threatens to Take Down the Internet

    It may seem like an overstatement of the issue, but it is not. Even if ESPN fails at singlehandedly taking down the internet, the mechanisms it seeks to set in place most certainly will. Most troubling is that people will not even know it is a problem until it is too late to do anything about it. To borrow a phrase, “This is one doodle that can’t be undid home skillet.”

    ESPN has just launched the most insidious attack ever on your right to unrestricted internet access. Sure, internet access has never been free and lots of websites require payment to access premium features. ESPN however, has figured out that while asking 0.0001% of us to pay extra to access its premium features is good, forcing 100% of us to pay for these premium features, whether we like sports or not, is even better.

    How will ESPN force you to pay for premium access you do not even want? The plan is to start charging your Internet Service Provider (ISP) for access. The ISP then spreads this increased cost on to you. So why is this bad?

    The problem is that this will turn the internet into a glorified cable company. Instead of paying $40/mo for access to the entire internet, you get an à la carte bill straight from your ISP. Want access to ESPN? add another $10/month. Access to YouTube? add another $15/month. Google? Another $20/month. Cousin Billy’s website showing pics of his drunken in-laws? Sorry, we no longer carry that, or any of the other tens of millions of websites that refuse to pay up.

    This is a one way street to a very bad place. Once content providers successfully conspire with your ISP to destroy Network Neutrality, you will never ever have unrestricted access to the Internet again. Most importantly, the 80% or more of websites and blogs out there lacking the resources to pay your ISP to carry their content will see traffic drop to nothing and eventually disappear.

    This “new” internet will be nothing more that a handful of 800lb gorillas vying for who can push the most commercials. I mean where else are you going to go? You unfortunately put all those commercial-free great content laden blogs out of business. Even the Justice Department has gotten into the game, siding with telephony and cable companies, like AT&T, Verizon and Comcast.

    Thankfully President Obama has stated that signing a guarantee of Net Neutrality will be a priority during his first year in office. Although I am sure he has not forgotten, it may be worthwhile reminding him, and your congressional representatives of the importance of guaranteeing Net Neutrality.

    Most importantly, let your ISP know how you feel about backroom deals to cram extra fees down your throat and cut off your access to 80% of the internet. If your ISP tries to couch these deals as free or low cost access plans, know that they will cost you, and everyone else, much much more in the end.

    To find out more about what you can do to maintain fair and free access to internet, visit SaveTheInternet and the Open Internet Coalition. If you don’t, don’t say I didn’t warn you. I would just write an I-told-you-so post but unfortunately, there would not be any way left for you to get to it.

    Brett Trout

    HT: Daniel Shipton

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    Posted in Internet Law. Tagged with , , .

    By Brett Trout
    February 6, 2009

    6 comments

    Will the Supreme Court grant Bilski cert.?

    In my last post on the Bilski case I noted that The Court of Appeals for the Federal Circuit (CAFC) is pretty much the “supreme court” of patents. The reason I wrote “pretty much” is that the Supreme Court is still the Supreme Court, and may overrule the CAFC at its discretion.

    In response to the CAFC throwing out Bilski along with all other naked business method patents, Bilski has filed for certiorari, requesting the Supreme Court take a closer look at the CAFC’s watershed decision. The questions presented in the request are:

    1. Whether the Federal Circuit erred by holding that a “process” must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing (“machine-or-transformation” test), to be eligible for patenting under 35 U.S.C. § 101, despite this Court’s precedent declining to limit the broad statutory grant of patent eligibility for “any” new and useful process beyond excluding patents for “laws of nature, physical phenomena, and abstract ideas.”

    2. Whether the Federal Circuit’s “machine-or-transformation” test for patent eligibility, which effectively forecloses meaningful patent protection to many business methods, contradicts the clear Congressional intent that patents protect “method[s] of doing or conducting business.” 35 U.S.C. § 273.

    The Supreme Court’s decision on these issues, should it decide to grant certiorari, will mean a multi billion dollar swing in the value of “business method” patents that have already issued.

    Brett Trout

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    Posted in Patent Law. Tagged with , , , , , , , , .

    By Brett Trout
    January 29, 2009

    2 comments

    Six Things Your Company Needs to Know About Internet Law

    Few companies know as much as they should about Internet law. Every company runs across its share of scammers, disgruntled employees and lawsuits. How often a company sidesteps trouble and how often a company gets left holding the bag, often comes down to which side knows more about the laws affecting the Internet and which side has taken steps to use these laws to its advantage. Here are a few Internet legal basics that take many companies by surprise:

    lady-justicesizedsmall
    1) Information is the Key.

    The more you know about internet law the less likely you are to get scammed. Scammers are not stupid; they actually know more about Internet law than most of the companies they scam. They pick the lowest hanging fruit first. If they try to scam your company and fail, they will likely search for easier prey. If they scam you once however, not only will they scam your company again, but they may sell your information to other scammers as an easy mark.

    2) “Fair Use” Rarely Applies.

    Unless you have a written contract giving you the right to use a photograph, a graphic design or a piece of writing, there is a good chance you are committing copyright infringement by using the work. Nine times out of ten you may get away with it. That tenth time, however, is going to make you understand why the other nine times were simply not worth it. If you are dealing with an independent contractor for design services, make sure you get an assignment of the work AND an indemnification for infringement from the contractor in writing.

    3) Most Online Security Breaches are an “Inside Job.”

    Whether it is a receptionist giving out a network password over the phone to someone he thinks is in the IT department or a sales rep opening a malware virus in an email attachment, scammers typically attack your employees before they attack your computers. Stay up to date on the latest ways criminals are exploiting employee vulnerabilities and pass this information along to every employee in your organization.

    4) Build a Social Networking Presence Before Its Too Late.

    What do you do if a disgruntled employee or customer posts something defamatory about your company online? Well, you could take them to court. That takes time and money, and all the while potential customers  are confronted by these defamatory statements. Even if potential customers do not believe the statements, they have to wonder what you did to make the poster so angry. Building a solid social network before a problem arises, not only provides a buffer, burying defamatory statements under laudatory statement, but social networks provide resources to handle outbreaks quickly and efficiently, sometimes before you even have time to call an attorney.

    5) Protect Your Digital Data.

    You lock the doors to your company every night. What are you doing to protect your digital information. Consistently updated firewalls, anti-virus software and off-site network backups are a must. Whereas a thief breaking  in and stealing your petty cash is a problem, a thief stealing digital assets is a nightmare. In addition to the cost of restoring the stolen data, you may have to deal with dozens, or even hundreds of lawsuits from clients whose personally identifiable information was taken as well.

    6) Destroy Obsolete Data.

    Many companies are like pack-rats, storing every bit of digital information that crosses their paths. The problem is that if your company is ever sued, you may have to convert this data to a readable format and present it to the other side. Does your company have any floppy disks? Do you have any computers that can read them? Set up and execute a document retention policy (DRP). The policy should also include a “litigation hold” order to stop all data destruction once you are on notice that your company may be sued. Failure to do so may lead to sanctions costing millions (or even billions) of dollars, and may even lead to the loss of your lawsuit.

    More information on Internet Law and how if affects your company is available in the book Cyberlaw: A Legal Arsenal For Online Business.

    Brett Trout

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    Posted in Internet Law, Top Ten. Tagged with , , , .

    By Brett Trout
    January 27, 2009

    3 comments

    Have Large Law Firms Met Their Waterloo?

    The list of large law firms laying off lawyers and support staff is snowballing. As one commentator put it “when times are so lean that the frivolous money-wasting starts to detract from desired partner distributions, then firms start to cut the crap and make some real business decisions.”napoleon

    At the same time large law firms are downsizing, smaller law firms are upsizing. Boutique law firms (smaller law firms, which focus on a single area of the law) have started hiring to accommodate the steady increase in work flow. Contrary to popular thought, specialization, not diversification, garners the flexibility necessary to attract clients looking to streamline services. With lower overhead costs, little debt, and more personal client contact, boutique law firms are better positioned to adjust to rapidly changing client demands. As Elie Mystal ofAbove the Law notes: these smaller firms are experiencing “new business development and recruiting opportunities as many corporate clients look to reduce their outside counsel legal fees.”

    Small firms, including those which specialize in intellectual property, corporate securities and employment, have the agility clients are looking for when they which attracts clients seeking an alternative to the “one firm fits all” culture. Law.com, one legal recruiter notes: “Some intellectual property boutiques may be benefiting from offering clients lower rates at a time when many
    clients are trimming costs and perhaps seeking one-stop shopping for
    patent prosecution and litigation work.” Whether it is the cost benefits, a dedicated expertise, personal attention or accessibility, recent hiring indicates clients are scrambling to capitalize on the lower cost and personal service smaller law firms have to offer.

    Brett Trout

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    By Brett Trout
    January 14, 2009

    1 comment