Recently on Rethink(IP)'s RSS Mojo Blog

Posted by Stephen M. Nipper at May 29, 2006 11:38 AM

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Memorial Day Edition of Blawg Review Available

RollingThunder.400pxLately, we’ve been a bit critical about the blog carnivals. 

In fact, one of us referred to blog carnivals as nothing more than “link whoring” – admittedly, a bit over the top.

Our intention was never to kill off the carnival format: rather, we wanted to get people rethinking the underlying premise of a carnival and advocate that the focus should be on the quality of the links featured  versus the quantity of links presented. 

Well — the past two weeks of Blawg Review force me to issue a mea culpa:

  • Kevin Heller’s Blawg Review #58 rethought the way in which BR is graphically presented.  I am hoping that Kevin will share the code/template he used – I am hopeful that future hosts will want to further refine and revise the template and continue to provide the week’s best law blogging in an attractive and easy to read format.

  • Anonymous Editor’s Blawg Review #59 literally made me weep this morning – the sense of pride for what our nation’s military men and women have done in service to our country and the ideals of freedom, coupled with a profound sadness for the loss their families have endured, pointedly reminded me of the reason why all Americans should offer thanks and gratitude ever day of the year, not just Memorial Day. 

    Ed underscores this point with his/her introductory comments — Editor's view: Memorial Day is a holiday we haven't ruined

Memorial Day is one of the best holidays we have because it's one of the few we haven't ruined by shifting the focus to consumption and entertainment.

Memorial Day, thankfully, isn't about us -- it's about them.

Them includes two groups: first, those who died serving our country; and second, children, whom we have an obligation to teach about the sacrifice of those who came before.

Thank you.

Photo Credit: Susan Scott Teachey, ON-Q Design, Inc., from the Rolling Thunder Motorcycle Rally in support of MIA and POW.

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How Long Before Law Firms do this With Associates?

Posted by Douglas Sorocco at May 27, 2006 01:11 PM

Big-brothervia Desktop Monitoring of Outsourcers

Found this from a company offering offshore programming services:

Through our Hire Manage Pay system, professional’s work time is automatically logged along with webcam and desktop snapshots proving accurate timesheet management.

So all programmers machines are monitored by webcam and screencaps, which you can then review to be sure they’re working on what they say they are for the amount of time they say they are. Fascinating. How long until this gets to U.S. IT shops?

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USPTO explains the AWOL Anderson Declaration

Posted by Stephen M. Nipper at May 25, 2006 01:03 PM

Remember my previous post:  “NPT alleging that the USPTO engaged in improper communications with third party in Blackberry case”?  In that post I mentioned that the USPTO had deleted “Anderson Declaration” from the file wrapper.  The Anderson Declaration allegedly contained copies of internal USPTO emails and other information obtained in a FOIA request. 

Well…the USPTO recently explained why the Declaration was deleted:

This is a decision returning improper papers.  The papers were filed dated April 24, 2006. The papers are presently before the Special Program Examiner of the Central Reexamination unit.  The papers filed contain and make reference to a document identified as a Freedom Of Information Act request. Since these documents are outside the scope of reexamination, there are returned.

For you IFW hounds, the number is 90/006,533.

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Back to our rethinking of Blawg Review

Posted by Stephen M. Nipper at May 24, 2006 12:30 PM

Note: apparently FeedBurner can "see" draft posts. Oops. So much for deciding whether or not to release this rant I wrote when all cranky. Oh well... Note to self.

I really do like what Kevin Heller did via the latest Blawg ReviewI commented on it, and so did Matt Buchanan.

Earlier today, someone who is hosting a future Blawg Review asked me what we learned from our “rethinking” of Blawg Review.

My response (tweaked):

We spend the usual amount of time doing it.  Each of us read every fricking one of the posts (shoot...we probably thus spend 3x the usual amount of time).  We thought they were lame...really lame.  As if quite a few of the people submitting posts put no effort into it.  It was clear that most of the submissions are merely "oh crap, it is Friday, better submit one of my posts for my weekly BlawgReview link whoring."  No consideration is ever made as to whether or not the posts are interesting, timely or useful.  A bunch of crap.

So, we decided to “rethink” Blawg Review, picking only the week’s best 3 posts and posting them.  (the remainder were dumped into another location)

Some people enjoyed it and agreed.  A couple people were pissed.  REALLY pissed.  How dare we not post their posts!  They, after all, followed the instructions and submitted them.  A number of people said "they only printed 3, so they must be lazy." 


I think Steve Martin explained it best:

You know, everything is not worthy of being in Blawg Review an anecdote. You have to discriminate. You choose things that are funny or mildly amusing or interesting. You're a miracle! Your stories submitted posts have NONE of that. They're not even amusing ACCIDENTALLY! "Honey, I'd like you to meet Del Griffith, he's got some amusing blog posts anecodotes for you. Oh and here's a gun so you can blow your brains out. You'll thank me for it." I could tolerate any insurance seminar. For days I could sit there and listen to them go on and on with a big smile on my face. They'd say, "How can you stand it?" I'd say, "'Cause I've read posts from been with Del Griffith’s blawg. I can take ANYTHING." You know what they'd say? They'd say, "I know what you mean. The shower curtain ring blawg guy. Woah." It's like going on a date with a Chatty Cathy doll. I expect you have a little string on your chest, you know, that I pull out and have to snap back. Except I wouldn't pull it out and snap it back - you would. Agh! Agh! Agh! Agh! And by the way, you know, when you're telling these little stories in your posts? Here's a good idea - have a POINT. It makes it SO much more interesting for the listener!  

--Neal (Steve Martin's character in Planes, Trains and Automobiles).

[note:  someone in a blog post in my aggregator mentioned this quote recently (I need to find the source and give credit)…but it fits perfectly]

So…that is what I learned from the process.  Of course, reasonable minds may differ.

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Blawg Review #58 - Shaken, not stirred

Posted by J Matthew Buchanan at May 23, 2006 09:01 AM

Leave it to Kevin Heller to figure out the whole Blawg Review shake-up thing.  On the tenth anniversary of our attempt at reinvigorating the venerable carnival, which received less than uniform praise and certainly could be fairly characterized as "stirring the pot," the Tech Law Advisor published Blawg Review #58 with just enough shaking to get it right.

Kevin sliced and diced the usual format for the review, presenting it in a crisp, organized, and very nicely designed package.  His shaking largely accomplishes what we had hoped for -- people are actually reading the review instead of just scanning it to find the link to their site.

I've talked to a few law bloggers about this...and they confirm it.  Blawg Review #58 is being read, not scanned.  Turns out we like our revolutions shaken, not stirred.  Who knew.

Nicely done Kevin.


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Daddy needs more power!

Posted by Stephen M. Nipper at May 18, 2006 01:22 PM

Apparently, I can’t use TESS right now.  ARGH!

5-18-2006-11.11.40 AM

I’ve complained about this before:

A reader at that time commented "The problem is that the USPTO has a SQL engine that is too small."

The USPTO seems to have money to fly all over the country (Salt Lake City, San Diego, Phoenix, Austin, and Miami) talking to children about the evils of piracy and counterfeiting.  Perhaps they can also invest in a bigger SQL engine sometime this year too... 

Don’t make me start a PayPal tip jar.

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Dominant Design and Lost Profits in Creative Labs v Apple Computer

Posted by Bill Meade at May 17, 2006 02:51 PM

By Bill Meade, President – Basic IP Management, Inc.

James M. Utterback’s (1994) MASTERING THE DYNAMICS OF INNOVATION is one of my favorite books. Utterback has lately been squeezed between Clayton Christensen’s work on disruptive innovation and Geoffrey Moore’s work on market structure and shareholder wealth management. But, I think Utterback deserves reading by patent attorneys.

First, because, Utterback’s book is just plain fun for a technology person to read. It has competition case histories of the typewriter (p. 1), automobiles (p. 34), television (p. 38), transistors (p. 41), calculators, (p. 42), disk drives (p. 46), and many other one-time high-tech industries. Second, I think Utterback deserves reading because his dominant design model has many uses in constructing defenses and offenses in patent litigation.

Utterback is a theorist of how competition grows and declines in an industry. I strongly urge you to buy this book and read for yourself Utterback’s theory (see end notes). I’m going to do a back-of-envelope summary here, to demonstrate how nicely the theory can be applied to patent litigation, specifically, to Creative Labs vs. Apple Computer. And, hopefully, to spark the idea that recent development in economic theory can be handy tools for patent litigators.

Utterback’s Theory: Dominant Designs

As a new technology is developed, entrepreneurs sense its missing features, think of ways to improve the technology, and introduce new products they hope will be differentiated by their improvements. In most new industries the result is that the number of competitors increases over time. What is really going on here is that an adolescent market is searching, groping, and exploring the technology’s capabilities. As people in the market get their heads around the technology, an optimal combination of features becomes clear. This combination is called by Utterback a “dominant design.”

Once a dominant design becomes available, many industries experience a collapse in the number of competitors. The shake-out-precipitating companies are the Microsofts, the Intels, and the Oracles, that benefit from the natural selection of markets. New market natural selection revolves around optimal packages of affordable features.

Two implications of Utterback’s theory that are significant to a patent attorney and patent litigator are:

• Markets are created by systems. Individual features are not enough to generate a new market. To reach critical mass, to precipitate a new market, a system of features is needed to enable new product use-models that can out-compete old use-models. Entrepreneurs like Thomas Edison often understood this. Edison created much more than the light bulb. He designed the light bulb, the generator, the transmission lines, etc. to compete with the gas industry.
• You have to have end-to-end solutions that reliably meet the needs customers find most important.

Example products that conform to Utterback’s theory are the DC3. Peter Senge in THE FIFTH DISCIPLINE (p. 6) listed the 5 components of the DC3 dominant design as:

1. Variable-pitch propeller,
2. Retractable landing gear,
3. Monocque body construction,
4. Radial air cooled engines, and
5. Wing flaps

In 1934, Boeing introduced an airplane similar to the DC3, the Boeing 247 with all of DC3’s components except wing flaps. Unfortunately, the 247 was unstable taking off and landing so as a product, it was not adopted by the market. The next year, however, the DC3 was introduced and it swept the market. “The DC3 was the first plane to support itself economically as well as aerodynamically” (Senge p. 6) and many are still flying in many parts of the world.

Creative Labs vs. Apple

Creative Labs has sued Apple Computer for patent infringement (of US6928433 Automatic hierarchical categorization of music by metadata) in the U.S. District Court for the Northern District of California (case number 3:06-cv-03218-BZ).

David Pogue wrote a great New York Times article on 3/9/2006 (see end notes) which to a reader of Utterback sums up the elements of the iPod’s dominant design at that date. These elements are:

1. Cool-looking hardware.
2. Fun scroll wheel.
3. Simple user interface menu.
4. Great library of add-on accessories.
5. Effortless synchronization.
6. Rock solid integration with an online music store.

The Creative Labs patent can be seen as an attempt to grab the idea behind element #3: Simple user interface menu. The idea is hierarchical menus based on album, genre, artist, etc.

Rating the Products:

Owning both an iPod (20 gig) and a Creative Labs Zen (40 gig) product I would evaluate the products against Pogue’s dominant design elements as follows:

• both the iPod and Zen have cool looking hardware,
• only the iPod has a scroll wheel,
• both iPod and Zen have simple user interfaces,
• the iPod has a vastly superior add-on accessory library,
• the iPod has fantastic synchronization, and the Zen’s synchronization is bad,
• only the iPod has a great integrated music store.

Dominant Design-Based Lost-Profit Argument:

Assume for the sake of argument that the Zen patent is valid, and that it is infringed by the iPod. I have done no analysis of the validity or infringement. For my purposes, I want to explore the concept of dominant design in defending Apple against a lost-profits damages argument by Creative Labs.

A dominant design argument would go like this: “The iPod and Zen products serve 2 completely different markets: the inexpensive stand-alone portable music player market (served by Zen), and the defacto standard portable music player market (served only by the iPod). Because Zen products do not have:

• a scroll wheel (element 2),
• a large library of add-on accessories (element 4), and
• an integrated music store (element 6).

Creative Lab's products serve only the inexpensive stand-alone portable music player market because Zen products do not meet all the market requirements of the defacto standard. If you bought a Zen product for your teenage daughter and saw her disappointment upon opening it, you may have suspected that the iPod and Zen are not substitutes. Dominant design puts theoretical building blocks underneath exactly why products that look the same are not substitutes.

Because the iPod emboides all 6 elements of the dominant design for the defacto music player market, it precipitated the market's formation. Creative Labs is not entitled to lost profits for the defacto standard market. Not entitled because the defacto standard market would not have formed around the Zen products.

End Notes:

Clayton Christensen (2003) THE INNOVATOR’S DILEMMA, Collins Reprint.

Geoffrey Moore (2005) DEALING WITH DARWIN: Portfolio

David Pogue (2006) “Almost iPod but in the End a Samsung” NY Times

Peter Senge (1994) THE FIFTH DISCIPLINE, Currency

James Utterback (1996) MASTERING THE DYNAMICS OF INNOVATION, Harvard Business School Press


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NPT alleging that the USPTO engaged in improper communications with third party in Blackberry case

Posted by Stephen M. Nipper at May 9, 2006 01:07 PM

Did the PTO Engage In Improper Communications with Third Parties That Are Not Reflected In The Record Of Decision for the NPT (Blackberry) Reexaminations?

That is the exact argument made in an Response (dated April 24, 2006) filed by NPT in one of their patent reexaminations.  A copy of the relevant portion of the Response is here [File Attachment: NTP_Reexam_Responsel.pdf]. 

Mysteriously, the “Anderson Declaration” is A.W.O.L. on PAIR.  If anyone has a copy, please let me know!  The attachments to the missing Declaration include internal USPTO emails (some of which were redacted) and other documents.

The arguments presented in the Response include:

  • The PTO Had An Ex Parte Meeting With RIM To Discuss The Reexaminations

  • PTO Files Contain Communications With Third Parties

  • Political Pressure Resulted in Actual Bias Against Patent Owner

If you want to pull your own copy off PAIR:  Application Number: 90/007,731, 90/006,675, 90/006,533; Applicant: Campana, Jr. et al.

If you ever need to make your own FOIA request with the USPTO:

More to follow…

[hat tip:  Hal Wegner]

[update:  AWOL documents explained?]

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Pressuring clients for more work...good idea?

Posted by Stephen M. Nipper at May 8, 2006 03:06 PM

"[t]he demand to meet new billing goals has led patent prosecutors to pressure clients for more work."

Interesting article in the most recent IP Law & Practice. Entitled "A House Divided Cannot Merge” (copy not (yet?) available on-line), the article starts out talking about a failed merger between two big IP firms, and then transitions into a discussion of the high billing goals that many patent prosecutors are having a hard time meeting.  Apparently, “[t]he demand to meet new billing goals has led patent prosecutors to pressure clients for more work.”  Yikes.

Such a strategy, where a large client who doesn’t feel they have any other patent counsel options (believing that there are no other patent firms having enough capacity to take on their work) is pressured to produce more work or else (we’ll withdraw) is sure to back-fire.

One solution (for large firms) to achieve the same goal (get more work) would be to help your client help itself.  I know it is a controversial thought, but rather than pull out a club, why not try rolling up your sleeves?  It takes a little thinking outside the box, but can be done.

For instance, hire someone like frequent Rethink(IP) contributor Bill Meade’s BasicIP…a company who’s entire purpose is working with patent attorneys and their clients to increase patent disclosures, trade secret programs and inventor incentives.  I like to think of them as invention disclosure commandos.

Personally, I think that helping your clients better protect their IP, rather than threatening them into producing more, is a better option.

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... and tell us how you really feel.

Posted by Douglas Sorocco at May 6, 2006 02:11 PM

Gary Odom over at the Patent Prospector must have missed his fibre this morning:

Large high-tech corporate patent infringers turn into crybabies, often pouting before Congress, paintingToads themselves as victims of the patent system, because individual inventors and small patent-owning companies try to make them take licenses for infringing their patents. The crybabies don't bother to mention their regular cross-license patent deals, or knock-down-drag-out fights between corporate competitors, as something to be concerned about. And because of the noise the corporations make, the mainstream press, which are corporate toads, and always hungry for drama, pile in, making the same noises, wailing for patent reform. Congress, itself a humongous corporate toad, listens sympathetically, and makes its own noises, but thankfully does nothing.

You just have to love a good “patent troll” rant on a rainy Saturday afternoon.  Gary has a way with words and probably does the best job I have yet seen at framing the issues in an appropriate manner.

If you are interested in learning more about patent trolls and the congressional response, head on over to Promote the Progress.  Matt would be too humble to mention it himself, so I will whore it out for him.

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A Blog for Everything - A Little Break from Rethinking

Blogforeverything2There truly is a blog for everything out there… I am thinking of running a little contest – can anyone tell me where this image came from?

Put your guess in the comments and, if correct, you will win a fabulous prize (of course, the exact prize you will win is…to be determined…)

Good luck!

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The last gasp of a dying industry?

Commercial skipping to cost $8 billion in TV ads this year?

When will the networks realize that the customer is always right?

Perhaps’s experiment is a step in the right direction… although, I wonder how much precious firm bandwidth is going to be flushed down the toilet every Monday from folks watching that housewife show?

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eTEAS typo...what is a signatoty?

Posted by Stephen M. Nipper at May 3, 2006 01:51 PM

Not a “hot totty” but a signatoty:

5-3-2006-11.48.10 AM

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Rethink...don't reinvent

Posted by J Matthew Buchanan at May 2, 2006 09:52 AM

Yesterday I had a chance to reminisce with an old college buddy.  We've both become very interested in policy issues since leaving school, so we talked a bit about a few public policy and management classes we took together.

He asked about "that book."  "Remember that book they made us read...?  What was it?  Everyone was reading it and the professors talked about it like it was the Constitution or something."

Of course I remember it.  I actually have two copies of it.  Met the authors once.  "Reinventing Goverment" by David Osborne and Ted Gaebler.  It nearly steered me into public service.  "Of course I remember it."

This friend knew nothing of rethink(IP) before yesterday.  And he knew nothing of it before making this comment:

"Reinventing Government. Yep, that's it.  Dumb, though, when you think about it.  Don't try to reinvent something. It's already been invented and can't be reinvented.  Don't waste your time.  But you can rethink it.  Rethink it, innovate around the stuff that has already been done, and invent new stuff.  Don't try to reinvent anything."

He was a smart guy back then, and still is today.



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