The IP ADR Blog

The RIAA Strikes Again

vpynchon@settlenow.com (Victoria Pynchon) — Tue, 07 Jul 2009 10:18:12 -0800

RIAA Wants Harvard Prof to Take Case Recordings Off the Web

Posted Jul 6, 2009, 03:25 pm CDT
By Sarah Randag

The Recording Industry Association of America says that Harvard Law Professor Charles Nesson is violating court orders and privacy laws by posting recordings of pretrial hearings and depositions to his blog and to the Berkman Center for Internet and Society website.

Wired's Threat Level blog provides links to examples of what the RIAA is referring to: a deposition of Joel Tenenbaum, who is being sued by the RIAA and represented by Nesson; a phone conversation between RIAA lawyers and U.S. District Judge Nancy Gertner “without the prior consent of participants"; and two expert depositions taken last week. Threat Level notes that Nesson was tweeting the July 1 deposition of copyright expert John Palfrey.

Continue reading here.

Negotiating the Global Environment on Independence Day

vpynchon@settlenow.com (Victoria Pynchon) — Sat, 04 Jul 2009 15:39:28 -0800

(image from Lift Think)

On this Independence Day celebrating U.S. freedom from the tyranny of foreign rule, I'd like us to consider whether a new day might be added to our holiday calendar -- Global Inter-dependence Day. This thought is spurred by the New York Times' Green, Inc. Blog post Climate Change and Intellectual Property.

In his Monday post here at Green Inc., James Kanter wondered what it would take to get the developing world to sign a climate change deal. Besides cash, some suggest that any accord must ensure developing countries have access to the proprietary mitigation technologies — that is, the intellectual property that companies in the developed world are creating to fight global warming — at bargain basement prices.

For instance, Nicholas Stern’s proposed “global deal” includes the following quid pro quo: “In return for increased R.&D. funding or extended developed-world I.P. protection, obligations could be imposed on developed-world technology providers that new technology be made available to the developing world on a marginal cost basis, or for some reduced license fee.”

For both the pro's and the con's, read on here.

Is Your Settlement Agreement Durable? Leaving Terms Open for Future Agreement

vpynchon@settlenow.com (Victoria Pynchon) — Fri, 03 Jul 2009 11:51:50 -0800

Though the recent Ninth Circuit opinion of Nutraceuticals v. Mucos Pharma (.pdf) is notable for setting the standard for preliminary injunctive product recall relief in a trademark infringement action, IP ADR's interest is stimulated by the settlement agreement that failed to head-off this expensive and protracted litigation (after the preliminary injunctive relief hearings; the appeal; and, the return of the case to the trial court, what further litigation damage do the parties have the stomach and budget to sustain?) (with apologies for the hopelessly run-on sentence to Strunk & White & my 8th grade English teacher who first introduced me to The Elements of Style).

Leaving the holding of this case to Likelihood of Confusion, we weigh in on the Settlement Agreement that failed to settle the parties' dispute, which ominously provided that

[w]ithin 30 days after the Effective Date, MUCOS and Marlyn shall use their good faith efforts to enter into a formal distributorship agreement containing the following terms and such other terms as may be mutually agreed to or are customary in the industry.”

Though the impossible to define "good faith" provision saves this clause from being an illusory "agreement to agree," the parties - already having been at odds - cannot have realistically hoped a "formal distributorship agreement" would follow.

What are the parties to do when they are ready to settle their past disputes but not ready to craft the agreement that will govern their future relations? Here are a few suggestions from someone who helps IP attorneys close deals the principals are not prepared to cast in stone:

give the parties more than thirty days to conclude any deal that likely requires lengthy negotiations and strategic planning on both sides
create consequences (or at a minimum, options) in the event the parties' "good faith efforts" fail to produce an agreement -- consequences could include grant or withdrawal of benefits likely traded to get the deal done in the first place
include in the settlement agreement a detailed list of provisions both parties are required to negotiate in "good faith." Such a list:
- should anticipate those deal points the parties would have to agree upon (or concede) so that unexpected post-settlement demands would not prematurely scuttle negotiations over items left open; and,
- should provide a structure for the parties to follow which should help keep paranoia about the other side's intent to over-reach or engage in bad faith somewhat at bay.
Consider whether a neutral third party should be included in negotiating the future relationship, either as a facilitator of agreement or as a neutral decision-maker on terms the parties are willing to submit to third party decision.

There are dozens more ways future agreements premised upon "good faith" obligations to negotiate can be enhanced. The parties to the dispute are always in the best position to brainstorm what those provisions might be. Based on twenty-five years of litigation and five years of neutral practice, I give any skeletal "good faith" negotiation provision a 10% chance of success. My pessimism is, of course, based on the fact that all I ever see is conflict and never the happily successful agreement crafted by a first-rate transactional lawyer. That being the case, I ask friend Ken Adams -- he of Adams Drafting -- to chime in here if he has the time and inclination.

Oh Canada! Will It Abandon Attempt to "Lasso a Locomotive with Cobwebs"?

vpynchon@settlenow.com (Victoria Pynchon) — Fri, 03 Jul 2009 11:19:41 -0800

(image from the Digital Standards Organization)

Thanks to Law is Cool (An Extraordinary About Face on Copyright Reform) we learn that Canadian Ministers Finally Embrace Canada's Digital Future. Below, an excerpt from the LawBytes column of TheStar.com.

[Industry Minister] Clement went first, noting how much has changed in the year since Bill C-61, the much-criticized copyright bill, was introduced. He said it was ``at least a somewhat different'' public policy environment and committed to a broad copyright consultation this summer. Canada last consulted on copyright in 2001, so the promise of open consultation alone represents an important shift in approach.

[Canadian Heritage Minister] Moore was even more forceful with remarks . . . emphasiz[ing] the power of new technologies, saying that standing in the way of digital developments is akin to "trying to lasso a locomotive with cobwebs."

Moore continued, acknowledging "the old way of doing things is over. These things are all now one. And it's great. And it's never been better. And we need to be enthusiastic and embrace these things."

Read on here.

One Day You're a 140-Character Text Box and the Next Day You're a Defendant

vpynchon@settlenow.com (Victoria Pynchon) — Fri, 03 Jul 2009 11:13:44 -0800

This Time, Tony La Russa Settles With Twitter for Real

St. Louis Cardinals manager Tony La Russa has officially dismissed his lawsuit over a fake profile on Twitter as part of a settlement in which the social media website did not have to pay him anything.

A settlement of the case -– the first to be filed by a celebrity against Twitter –- was first reported in early June, with La Russa saying Twitter had agreed to pay his legal fees and make a donation to his Animal Rescue Foundation (ARF).

Twitter responded with a statement in which it said, “Twitter has not settled, nor do we plan to settle or pay” and described the suit as “an unnecessary waste of judicial resources bordering on frivolous.”

From On.Point - continue reading here.

Tactics of the Adept Practitioner in Modern IP Mediation

vpynchon@settlenow.com (Victoria Pynchon) — Sun, 28 Jun 2009 15:27:59 -0800

I'm sharing today a power point presentation that was the basis of an ALI-ABA IP Mediation seminar conducted by me and David Donoghue of Holland + Knight. The course outline with bios is here. The course itself can be found here. This presentation is modified from one I presented with the Hon. John Leo Wagner of Judicate West at an ABA conference. Many thanks to Judge Wagner for his insights, many of which are captured here.

The Adept IP Mediation Advocate

View more documents from Victoria Pynchon.

Texas Jury Buys Tivo's Bull?

vpynchon@settlenow.com (Victoria Pynchon) — Fri, 26 Jun 2009 10:06:05 -0800

IP Trial Strategy: Buying Tivo's Bull

Zusha Elinson
The Recorder
June 26, 2009

As the make-or-break patent trial between Tivo Inc. and EchoStar Corp. got under way in Marshall, Texas, Tivo's top brass had an idea: Let's buy a cow.

It was late March in 2006, and that meant it was time for Farm City Week in the home of America's most popular venue for patent litigation. Featuring the Harrison County Cattlemen's Ball and the 4-H Cake Show, the main event at Farm City Week is the livestock auction, where prize-winning steers, heifers, lambs, goats, broiler chickens and rabbits are sold by dedicated young farmers.

Samuel Baxter, perhaps the best-known lawyer in the Eastern District of Texas, was representing Tivo, along with Irell & Manella's Morgan Chu, the big-time, bow-tie-loving patent litigator. Baxter recalls now how execs at Tivo, an Alviso, Calif., company that makes set-top digital video recorders, told him, "Wouldn't it be great if we could go to the auction and buy a cow because the people have been so nice to us here."

The McKool Smith lawyer did that and more. Baxter bid on the Grand Champion Steer -- the most prized farm animal at the auction -- and bought it for what at the time was a record-breaking sum of around $10,000. The lucky steer-raiser was a high-school senior from Hallsville, who, like all the students selling animals, got to keep the money for herself to use for college. They named it Tivo.

Perhaps lacking sufficient grazing land in Alviso, Tivo offered to give its namesake back to his original owner, Baxter says, but she couldn't take their bull because she was headed off to college. "We turn 'em into steaks and burgers," he says.

Cynics might view it as a rich, out-of-town company trying to influence the jury pool in a small city of 25,000, where the grand champion is big news. But Baxter says it was just a symbolic gesture of kindness on the part of his client. "I thought it was great that the Tivo people were so nice and wanted to help out in the community like that," he says.

Two weeks later, on April 13, the Marshall jury found EchoStar (now known as DISH Network) guilty of infringing Tivo's "time warp" patent, used in technology that lets viewers record, fast-forward and rewind TV shows. And it awarded Tivo $74 million in damages.

Continue reading here. I'm wondering what Anne Reed of Deliberations has to say about this.

Make Progress, Not War: IP in the 21st Century

vpynchon@settlenow.com (Victoria Pynchon) — Fri, 26 Jun 2009 09:23:56 -0800

What can be done to . . . . to stop the international “IP war”?

Read the full-on analysis of the problem to appreciate this excerpt of the solution at Duncan Bucknell's IP Think Tank here. (or download a .pdf here)

The lengthy article by by Dr. Roya Ghafele, Lecturer, University of Oxford is more than worth your time. I'm hoping that Duncan's posting -- and ours -- will begin a new conversation in the IP blogosphere about our continuing struggle to come to terms with the tensions created by the new global connected culture and the old law of intellectual property. Below, an excerpt of some proposals for resolution.

Both, business and civil society have an “incentive” to move from a stage of war to a constructive, solution driven approach. For business the increasingly negative publicity that IP is giving it, may actually translate into serious bottom line profit losses due to loss of reputation and image. For civil society again, the stage of continuous critique can not be maintained either. At some point in time donors do want to see solutions and constructive output. Thus, there are good chances to move from a “win” to a “win-win” situation.

So far, IP has been largely looked upon from a legal perspective, which comes as no surprise since current educational systems worldwide only train lawyers in IP. Economists, political scientists, sociologists, historians or even engineers know most of the times very little about intellectual property. A pity, since it is exactly this multidisciplinary perspective that is needed to turn IP into a tool for economic, social and cultural prosperity and leverage it as a means for wealth and welfare creation.

A different perspective on IP, one that looks at it as a strategic asset more than a legal framework gives way to new managerial perspectives on intellectual property. While so far, the readjustment of the IP system has primarily been looked upon through the perspective of compulsory licensing (again a very legal approach to IP management), few have taken a more pragmatic approach and asked what types of management choices may work towards obtaining inclusion and an equitable distribution of research and development findings within the existing intellectual property framework.

Public interest IP management seeks to offer strategic choices on how to reconcile the existing contradiction between the exercise of exclusive rights and the universal right to equitable access. Innovation functions as a public private partnership; according to current research by Ashley Stevens at Boston University the vast majority of FDA (Food and Drug Administration) approved pharmaceuticals were developed with public sector support. While the public sector is asked to thoroughly negotiate agreements in the public interest, business can explore opportunities to leverage IP for the wider public interest.

Public interest IP management comprises different approaches to ownership and access of IP and makes use of market and non-market incentives. It includes defensive publication, the pre-emptive creation of a public domain (including waiving of IP rights) and a deliberate deployment of legal exclusions. The application of the right to exclude can further be used to safeguard the open quality of a shared innovative domain.

A good example is “humanitarian licensing” where IP is being licensed to market participants on the condition of several tied in arrangements. In this case the licensor tends to reserve the right to license the technology also out to developing country producers or allow for parallel trading. It is further common practice to assure in licensing agreements “public interest” clauses that aim not only to assure commercial, but also public welfare gains. In practice, “humanitarian licensing” works if regulatory frameworks are in place clarifying ownership over IP developed in the public domain as well as sufficient practice in managing IP.

A comprehensive, strategic IP approach furthermore represents the public interest as early as the selection phase of a research topic and plays a decisive role in the interaction between the public and the private sector. An ex-ante IP strategy is different from an ex-post intervention. The latter are only public interest remedies treating IP as a commodity, where negotiation is only possible over price.

Read on here.

I'm most interested in what Dennis Crouch at Patently O, Jackie Hutter at the IP Asset Maximizer Blog, David Donoghue at Chicago IP Litigation Blog and Jeremy Phillips at IP Kat have to say on this topic.

What does it all mean?

vpynchon@settlenow.com (Victoria Pynchon) — Wed, 24 Jun 2009 13:11:58 -0800

Thanks to Geoff Sharp for posting this video at Mediator Blah Blah after a lawyer told him he "didn't believe in email.

What does it all mean? It means that our ability to adapt, to think critically, and to innovate is critical to our survival as an economic power on the planet.

What does it mean to you?

Yes You ARE Making Irrational Decisions: What to Do About It

vpynchon@settlenow.com (Victoria Pynchon) — Thu, 11 Jun 2009 07:32:19 -0800

From National Public Radio with thanks to Don Philbin, mediator and arbitrator in San Antonio, Texas for posting it to the Commercial and Industry Arbitration and Mediation Group on LinkedIn.

People Make Irrational Choices

Kahneman was surprised by the pure visceral power of his own certainty. He eventually coined a phrase for it: "illusion of validity."

It's a problem that afflicts us all, says Kahneman, who won the 2002 Nobel Prize in economics for his work on this subject. From stockbrokers to baseball scouts, people have a huge amount of confidence in their own judgment, even in the face of evidence that their judgment is wrong.

But that mistake is just one of many cognitive errors identified by Kahneman and his frequent collaborator, psychologist Amos Tversky. For more than a decade, the two worked together cataloging the ways the human mind systematically misjudges the world around it.

For instance, Kahneman and Tversky identified "anchoring bias." It turns out that whenever you are exposed to a number, you are influenced by that number whether you intend to be influenced or not.

This is why, for example, the minimum payments suggested on your credit card bill tend to be low. That number frames your expectation, so you pay less of the bill than you might otherwise, your interest continues to grow, and your credit card company makes more money than if you had not had your expectations influenced by the low number.

Through their research, Kahneman and Tversky identified dozens of these biases and errors in judgment, which together painted a certain picture of the human animal. Human beings, it turns out, don't always make good decisions, and frequently the choices they do make aren't in their best interest.

Continue reading (or listen to the broadcast) here.

Want to avoid the cognitive errors that result in sub-optimal negotiated resolutions? Check out my power point presentations on cognitive biases here.

Beat the Recession with Negotiation Training Now!

vpynchon@settlenow.com (Victoria Pynchon) — Sat, 06 Jun 2009 10:44:03 -0800

Negotiation Training

View more OpenOffice presentations from Victoria Pynchon.

Unsurprising Speculation on Bratz Litigation Resolution: Licensing Agreement in the Works

vpynchon@settlenow.com (Victoria Pynchon) — Wed, 03 Jun 2009 20:59:50 -0800

Doll Dispute Edges Toward a Deal from the Los Angeles Daily Journal (for subscribers only; excerpt below)

RIVERSIDE - The Bratz doll copyright fight appears to be edging closer to a settlement, with lawyers for two dueling toy manufacturers reviewing a mediator's proposal with their clients in attempts to resolve their differences.

By Jason W. Armstrong
Daily Journal Staff Writer

The jurist overseeing the case, U.S. District Judge Stephen G. Larson, said in a case filing late Tuesday that "progress was made" at a court-ordered settlement conference Monday. He didn't go into specifics.

Last month, the court-appointed mediator, Pierre-Richard Prosper, told the judge in a hearing that while he felt the parties still had a lot of work to do to reach a settlement, they were "closer than ever" to resolving the five-year-old case, in which Mattel is fighting for control of rival MGA Entertainment's popular Bratz line. Larson then postponed discovery for a second phase of the trial to give the lawyers a chance to discuss a possible settlement with Prosper.

Although the lawyers aren't discussing the settlement talks, some intellectual property experts have speculated that resolution options for the case could include a licensing agreement in which MGA would continue making the dolls and pay Mattel a chunk of the proceeds.

The case is Bryant v. Mattel, CV04-9049 (C.D. Cal, filed 2004).

Best Blog Posts First Quarter from 3 Geeks and a Law Blog

vpynchon@settlenow.com (Victoria Pynchon) — Fri, 29 May 2009 07:45:59 -0800

It's quite a list but here's my favorite: Reality: the Enemy of Innovation? from The Creative Class, excerpt below.

Almost everything that we think is real is actually a construction of inferences and interpretations that we misinterpret as reality. And unfortunately, the belief that we are directly observing and understanding ‘reality’ discourages us from trying to change it. Hence our concept of ‘reality’ is the enemy of innovation.

The ‘reality’ assertion happens all the time. I recall a fellow board member, Tony M., arguing with me during a board meeting, “Roger, the reality is that we can’t sell this division right now.” In fact, we could (and did) sell the division, but it didn’t appear that way to Tony because the things to which he paid attention didn’t add up to the possibility of sale.

Tony didn’t see his view as a model of reality, but as reality-direct, pure, and clean. That is why he didn’t say, “I don’t think we can sell it,” but rather “the reality is we can’t.”

When we see ‘reality,’ we act to confirm and reinforce that ‘reality’, whether it is real or not. So if we were to conclude that ‘the reality is’ that consumers won’t pay a premium for quality-for example, they won’t pay more than 99 cents for a four-roll package of toilet paper-then we won’t even try to provide more quality. Instead we will provide a generic product and spend our resources on price promotions that enable retailers to hit the 99-cent price point.

Read on here.

Our watchword? The same as Sun Microsystem's CEO Jonathan Schwartz: "innovate, don't litigate."

Conflict Avoidance and the March of Science

vpynchon@settlenow.com (Victoria Pynchon) — Mon, 25 May 2009 13:19:32 -0800

In today's Los Angeles Times, columnist Michael Hiltzik rightly worries that Investor Funded Research Could Bring the March of Science to a Standstill. The story used to highlight the problem goes like this:

Dr. Philip H. Schwartz spent six years providing university researchers with neural stem cells cultured by a method he had helped invent at the Salk Institute in La Jolla.

. . . . His technique provided biomedical scientists with live tissue, an improvement over the dead cells, harvested from the brains of deceased patients, that had been the standard fare. . . .

Then his employer, Children’s Hospital of Orange County, got a letter from Palo Alto-based StemCells Inc. [warning] that Schwartz's program infringed its patents in the neural stem cell field and it wished to, er, discuss a licensing arrangement.

The hospital's lawyers advised Schwartz to stop sending out cells until they could make a deal with the company.

That was two years ago. There's still no licensing deal, and there haven't even been talks for more than a year.

Here's the part where one could rail against lawyers and litigation and the use of patent portfolios as revenue-generation tools impeding the progress of science. But that's an argument destined for failure (read: years of litigation; the potential for trial; and, an unhappy settlement by everyone involved).

When reading a story like this, the mediator in me looks for the human or institutional problem burdened by a legal issue of interest primarily to lawyers and academics. Here it is:

As it happens, StemCells has good reason to support the needs of academic researchers. For one thing, progress in fundamental stem cell research is likely to "improve the value of their [patent] portfolio," Schwartz observes.

For another, the company's founders include three leading academic stem cell scientists: Irving L. Weissman of Stanford University, David J. Anderson of Caltech and Fred Gage of Salk -- in whose very lab Schwartz developed his method.

None of the three appears to have gotten directly involved in the discussions, although one might think they would be especially sensitive to the need to balance the interests of private enterprise and academia. (None answered my requests for comment.)

So there has been no progress. The company says it did not explicitly threaten a lawsuit or even demand that CHOC cease distributing neural stem cells. But considering the firm's access to litigation firepower -- it's been waging a patent battle in court with another firm, Neuralstem Inc., since 2006 -- Dethlefs is probably wise to see its letter as a "veiled threat" and CHOC's lawyers prudent in suspending Schwartz's program.

Each side says it's waiting for the other to make an offer, but things may be moving backward. On Jan. 23, Dethlefs sent out a memo explaining to researchers that because of the "unresolved legal issue," it wouldn't be distributing cell lines that might come under the StemCells patents for the foreseeable future.

The people most vitally interested -- the scientists whose interests overlap -- haven't gotten involved in the discussions and "[e]ach side says it's waiting for the other to make an offer."

In other words, the dispute resolution mechanism chosen by the parties to a commercial problem that is impeding the progress of science and which could result in an economic benefit to one, all or none of the parties in the hundreds of millions if not billions of dollars, is to avoid addressing the problem at all.

Though stem cell research might be akin to rocket science, conflict resolution is not. I have personally seen the "parties with the problem" -- the inventors on either side of a patent infringement action -- walk into a joint session as if the other were the spawn of Satan, only to emerge less than an hour later talking about their shared engineering or design or scientific problems, slapping one another on the back and, in at least one instance, calling their evil adversary "bro."

To unstick the sticky legal problems impeding the progress of scientific inquiry, the parties with the problem -- who are invariably also the parties with the solution -- need to get together. Now. Period. With or without the assistance of someone trained in the art of dispute resolution.

The big policy issues can be left to the big policy guys while the stem cell researchers figure out how to keep the next huge elderly generation from the suffering and expense of Alzheimers and Parkinsons.

Get it together. Please.

Arbitrating that International IP Dispute? Check out Fulbright's International Arbitration Report

vpynchon@settlenow.com (Victoria Pynchon) — Mon, 25 May 2009 11:02:14 -0800

Read about recent disputes and issues looming over them.

Topics include:

Developments Affecting the Choice of Arbitral Seat and Institution in China-Related Contracts
Applications Under Section 1782 to Obtain Discovery in International Arbitration
English Court Grants Order in Support of Arbitral Tribunal’s Peremptory Order
Developments in Electronic Disclosure in International Arbitration
U.S. Federal Court Orders Party to Pay U.S.$100,000 Daily Fine for Failure to Comply with Arbitration Award

Download the 2009 International Arbitration Report Here.

Fulbright's International Arbitration Report

is a convenient way to stay abreast of the latest developments in cross-border disputes.

Should you have questions about international arbitration, please contact Mark Baker at mbaker@fulbright.com or David Howell at dhowell@fulbright.com.

vpynchon@settlenow.com (Victoria Pynchon) — Tue, 19 May 2009 08:21:29 -0800

Hat tip to Virginia Construction Lawyer Christopher Hill for this "Courtoon" by the extremely multi-talented federal appellate attorney David Mills.

Building Your IP Practice with a Dynamic Social Network

vpynchon@settlenow.com (Victoria Pynchon) — Sun, 17 May 2009 08:27:38 -0800

Put the power of Web 2.0 to work for you while you're sleeping!

Internet defamation attorney Adrianos Fachetti; entertainment attorney Gordon Firemark; class action attorney H. Scott Leviant; Barger & Wolen Marketing Director Heather Milligan and I will be presenting Social Networking for Lawyers: A Roadmap to Success Session 1 (9:15-10:30) at the Second Annual LACBA Solo and Small Firm Convention on June 25, 2009.

In this interactive session we will explore the buzz surrounding social networking and social media tools and how solo and small firms practitioners can effectively employ them to communicate with current clients; control your messaging as you reach out to new clients and the media; and to meet, network and collaborate with colleagues.

Our panel of solo and small firm attorneys will discuss their experiences with blogging as a social media tool, and we will spotlight several social networking applications, including Twitter, Facebook and LinkedIn. By calling upon their personal experiences, our panel will highlight best practices for how you can incorporate these and other Web 2.0 applications into your business development, PR and networking activities.

Negotiating the Market: 2009 IP Law Firm Marketing Slogan Award to McDonnell Boehnen Hulbert & Berghoff LLP

vpynchon@settlenow.com (Victoria Pynchon) — Fri, 15 May 2009 10:28:26 -0800

mbhb
we know the drill

When a law firm takes the time and trouble to at least be clever, it tends to make potential clients believe in its claims to be creative and innovative. That's why we're awarding the IP ADR Blog 2009 IP Law Firm Marketing Slogan Award to the firm of McDonnell Boehnen Hulbert & Berghoff LLP.

The marketing people tell us that brand consistency is one of the most important elements in a successful marketing program. See e.g. Marketing 101: Brand Consistency at the BlueFur Blog here. Excerpt below:

When you decide on a marketing campaign for your company, it’s important that you maintain a certain level of consistency across the entire campaign. Even if it’s not an outright advertisement, everything associated with your business should have a common theme or feeling to it. When you look at marketing for BlueFur, the color blue always features prominently and there’s a good chance that you’ll see an image of the furry blue monster.

Be consistent not only in the look and style of your various marketing materials, but also in your ad message. What is it about your company that you want to emphasize? What is it that you want people to know you for? To remember you for? This consistency should be maintained across everything, including business cards, letterhead, envelopes, invoices, signage, banners, newspaper ads… everything.

From mbhb's "About Us" page below.

We provide creative, pragmatic business solutions through a variety of intellectual property services, including litigation, prosecution, and general client counseling.

With offices in Chicago and Washington state, MBHB provides comprehensive legal services to obtain and enforce our clients' intellectual property rights, from navigating patent office procedures to litigating complex infringement actions. We prosecute patent and trademark applications in both the U.S. and abroad, handle intellectual property litigation matters in trial and appellate courts across the country, and counsel clients nationwide and worldwide on the enforcement and defense of their intellectual property rights.

The more colorful "real" ad can be seen at Patently O.

Negotiation Strategies with Bart Greenberg of Manatt Phelps

vpynchon@settlenow.com (Victoria Pynchon) — Wed, 13 May 2009 07:52:56 -0800

Negotiation Strategies

View more presentations from Bart Greenberg.

More Wisdom (with Statistics!) from the IP Maximizer Blog

vpynchon@settlenow.com (Victoria Pynchon) — Tue, 05 May 2009 09:43:49 -0800

(right, my own best legal advice - if the litigation won't likely net you $5 million, take your legal fees to Vegas - you'll have a lot more fun losing them there)

If you're not reading Jackie Hutter's IP Asset Maximizer Blog you're way behind the curve. In fact, the curve isn't even on your horizon. Without Jackie, the IP world is flat. Check out this excerpt from Jackie's recent post on the "Starry Eyed" View of Patent Litigation Being a Great Way to Monetize Patent Value.

I recently became aware of this patent litigation analysis prepared by PriceWaterhouseCoopers (“PWC”) (hat tip: Marcus Malek of the Intangitopia blog). The report appears to be rigorously prepared from data obtained from a large number of reported patent litigation cases dating from 1995. I read this report with interest and think that anyone who is interested in the ROI of patent enforcement should read it also. The data provide a wealth of information for anyone even thinking about bringing a patent case or who is involved in defending against claims of patent infringement.

Although the data in the PWC provides informational value, I nonetheless have a big problem with the following assertion that is prominently presented on page 18 under the title “What This Means for Your Business”:

"In light of the findings in this study, patent litigation appears to continue to be an effective protection and monetization path for patent holders." (emphasis added)

This unqualified statement gets a big “WHAT?!” from me.

The PWC data indicates that patent holders prevail only 37 % of the time, with the breakdown of wins being 19 % at summary judgment and 57 % at trial. (page 8) The median damage award for patent holders is $3.8MM, measured over 7 years from 2001 to 2007 (page 2). Notably, the median damage award varies substantially among technology areas, with some areas such as pharmaceuticals, consumer goods and automotive resulting in damage awards significantly lower than the median value. (p 3) The values are further skewed because the award figures include the $1.5 B award against Microsoft that was later markedly reduced (but was current as of the time of the PWC report).

While the $3.8MM figure might initially seem somewhat impressive to many patent owners, notably missing from PWC’s assertion that patent litigation is an “effective [] monetization path” is the cost to the patent holder to obtain that median damage award of $3.8 MM. At best, this assertion presents a "starry eyed" view of how patent owners can extract value from their patent assets. At worst, the assertion is misleading. (But, in any event, it is not necessarily surprising because PWC derives significant revenue from patent litigation.)

There's more! Read the rest of Jackie's incisive post here.