Virtual Firm

Posted by Douglas Sorocco at July 13, 2006 03:05 PM

Why didn’t Marty ask the question:

Why/how would a virtual firm benefit a client?


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Whatever Happened to Manners?

Posted by Douglas Sorocco at June 7, 2006 11:16 AM

I guess the title of this post is fairly explanatory – but it is worth repeating. 

What has happened to manners in our society?  Rudeness seems to prevail everywhere –which makes me wonder if it is any easier to be rude than it is to be mannered?

Case in point (get ready for a rant):

I have been travelling non-stop the past couple of weeks and as we all know, the airlines are really not doing much to help their customers be comfortable, let alone, enjoy the flight.  Planes are crowded, the facilities are cramped, they are charging for soft drinks, checking our bags at the curb and for tinny little earphones — and we are now being treated to the “reserved” first class lavatory – is it absurd to anyone but me that people from row 5 have to traipse 30 rows backward to use the “steerage” restroom. 

Air travel sucks.  Plain and simple.

So, I guess I have been feeling a bit of esprit de corps with my fellow travelers  lately – it is us versus them afterall.  The people versus the man.  Humanity versus inhumanity. 

And I don’t think I am alone… in fact, I witnessed both sides of the coin tonight.

A mother and her two young children board the plane – the mother is in the aisle bulkhead seat while her kids are in the middle and the window seat one aisle behind her.  She politely asks the passenger in the aisle seat next to her kids if he would be willing to take the bulkhead aisle seat so that she could sit next to her young children (why in god’s name does the airplane put her in this position to begin with?) – a very simple request and, afterall, the passenger would get the bulkhead seat and more legroom.

So - what do you supposed happened?

If you guessed that the passenger changed seats, you would be sadly mistaken.  Instead the passenger refused, pouted and when confronted by the flight attendant, outright whined about having to move – remember, it is only one row forward and in the bulkhead seat to boot.

I think the flight attendant, myself and the mother all must have stood there for at least five minutes with our mouths open.  We couldn’t believe it.  Since I am mouthy, I asked the passenger if he had a problem – didn’t his mother teach him any manners?  Well, that went over well.  And then another passenger asked the same thing.  And then another.  And another.  And another.  Pretty soon the whole front section of the plane was glowering at the passenger for refusing to move.

Well lo and behold – he succumbed to pressure and moved forward – all the while grumbling about it.  In fact, he demanded that his bag stay under the seat in front of the woman who was taking his place.  His precious bag couldn’t end up in the overhead compartment.  Another one of the passengers picked up the bag and moved it to the overhead compartment for him.  I think I heard people applauding, but I am not certain.

Later during the flight the attendant brought free drinks back to me and a couple of the other folks who spoke up.  The passenger actually asked why he wasn’t getting something for moving.

And up piped the voice of one of the children in the row behind him:

Because you didn’t do the right thing when it was the right thing to do, mister.

I think the mother was mortified that her son made the comment – if I was her, however, I would be proud of that boy. 

I now know of at least one mother who is teaching her children manners.  Let’s hope I am still travelling when he is a bit older – I would like to sit and chat with him and see if he remembers this experience and how it impacted his life (or not).

This story is really not about intellectual property - although I could probably twist it in some manner.  If the lesson is applicable to your practice, great.  If not – I am sorry I wasted your time.

I just needed to rant.


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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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A Lay Person's Guide to LES

Posted by Bill Meade at March 4, 2006 05:30 PM

By Bill Meade of

LES stands for the "Licensing Executive Society" and this post is a review of the LES winter meeting that took place February 22, 23, and 24, 2006 in Pasadena California. This post is an attempt to give RethinkIP readers a sense of what the conference and LES society is like.

Who went?

Approximately 320 people attended the conference and they represent a mix of licensing-related backgrounds including patent litigators, house counsel, attorneys with MBAs working as licensing executives (i.e., Outside their company’s legal department!), geniuses at large (one person had an MD from Russia, a PhD from Israel, and an MBA from the US), and many technical people (Ph.D. biochemistry or physics for example) acting as IP commercialization consultants, and expert witnesses. Add to this mix a dash of retired judge, a genial Cornell PhD in materials science, JDs with Ph.Ds, the Knobe Martin litigator alumni association, and you begin to get a feel for the human chemistry of an LES meeting.

Continue reading "A Lay Person's Guide to LES" »

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measure twice, cut once

Posted by Douglas Sorocco at December 11, 2005 10:09 PM

I like to do carpentry and woodworking – mainly old house rehab stuff but occasionally I am inspired to make a Santa and reindeer measuring girthpiece of furniture. 

A common adage is “measure twice, cut once” and it is one that while I try to remember it, I often forget and have to recut a piece of lumber.  Acting without planning can definitely be expensive.

It is also a good piece of advice when thinking about legal services and fees… measure your fees twice and cut them once.  What this means to me is that you should always look at or measure a bill, invoice or statement twice — (once as the attorney and once as the client) — and then make a cut of the bill once (i.e. do what is fair to both the attorney and as the client).

Measure twice, cut once.  Good advice – whether it is legal services or carpentry.

Happy holidays everyone! 

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Whats Your Definition of a Rainmaker? Bullshitter?

Posted by Douglas Sorocco at November 24, 2005 12:02 PM

Bullshit-Negation_in-color_small-SignI really hope that the young associate who writes the BigLaw Associate is real and not some pseudo-writing experiment like Anonymous Lawyer.  The posts over at BigLaw crack me up and hopefully offer some unintentional glimpses into some biglaw practices.

For example, BigLaw’s newest post is entitled “A New Plan” and is the most recent in a series of angst ridden posts dealing with whether he/she/it/they should leave the biglaw firm where they are currently employed.

The whole post is interesting for the fact that he/she/it/they have finally succombed to the fact that they will never leave biglaw and he/she/it/they are justifying the reason for not leaving (although, look back a few posts for what I believe are the real reasons – money, awe from peers, and “biglaw prestige”)

What I found most striking in the post is this statement regarding the senior attorney she is assigned to:

… I have come to the conclusion that perhaps my problem is not the Firm, but Senior (and myself to a large extent). We have a totally dysfunctional working relationship. Senior is a rainmaker and knows how to keep his clients happy; not so much with quality work (although he is undeniably VERY smart), as with backslapping, belly laughing locker room humour.

What? Say again? Hello?


I don’t think my definition of rainmaker would/should/could be modified with the statement “not so much [because] of quality work”… I wonder if their clients feel the same way.

Where I come from (all at once … “Oooooooook – la – homa, where the wind comes sweeping down the plain….” [MP3]), modifying the term rainmaker in such a manner results in that person simply being a bullshitter – someone with a good handshake but nothing of any worth to the client.

Is this the definition of rainmaker that biglaw is teaching its associates and, if so, is it any wonder why clients are demanding change in how legal services are to be delivered?  What happened to client service, attention to detail, quality work and delivery of innovative, helpful and useful counsel?  

If this is the trend – maybe instead of Chief Marketing Officers at biglaw, they should just hire Chief Bullshitters.  It would certainly be easier for recruiters to find them — you don’t really need any particular qualifications and if it is big enough of a trend, some enterprising CLE provider will start teaching “Chief Bullshitter Bootcamps” for the forward thinking law office.

I really hope BigLaw Associate is for real… it bodes well for us “little guys”, I think.

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Insourcing Quid Pro Quo

Posted by Stephen M. Nipper at November 2, 2005 10:31 AM

Insourcing is one of the main reasons Matt, Doug and I were drawn together almost a year ago. It was a conversation about how to work together to promote the insourcing of patent services to inland patent firms instead of outsourcing them abroad that started this great rethinking project. We've clearly gone beyond insourcing a major Rethink(IP) theme, but that topic is still close to our hearts.

In reviewing my client base recently I noticed something I hadn't seen before (and I'm sure my fellow rethinkers see too in their own practices), namely that the amount of work we are doing for foreign patent and trademark firms has substantially increased in the past few years. Substantially. Maybe The World is Flat has just opened my eyes more to the impact of technology and the Internet on my practice.

I'm not sure whether they are ditching their big city firms and insourcing to the Intermountain West and/or Midwest for customer service, for price, or for other reasons, but it is clearly happening. What amazes me is how quickly foreign IP attorneys get it, but US businesses as a whole don't.

Foreign IP work has traditionally been "quid pro quo," in that "if you send me work, I'll send you work." Perhaps it is due to the low performance of the US dollar or perhaps other factors, but the reality is that having IP work done in the US is as expensive as ever. In my opinion, this is a fact which is causing some foreign IP firms to consider other cost effective ways of protecting their client's intellectual property in the States, and one of those ways is insourcing. The result is that foreign firms are sending lots and lots of work to smaller firms in smaller metropolitan areas, firms that can't possibly support the old school quid pro quo.

Is it the end of "tit for tat" in IP work? I doubt it, but it is sure to have ripples in the market for worldwide IP services.

Other thoughts, insight and comments appreciated (the comments are open)...

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Blackballed - You Are the Brand

Posted by Douglas Sorocco at October 30, 2005 12:37 PM

I guess I am in a branding mood these days.

I just ran across a similar post by John Windsor over at Corante's BrandShift blog.

John rants about a recent airplane experience where an executive sitting next to him didn't exactly leave a good impression of the executive's company.  It's a funny read for anyone who travels on business fairly often, with the "punchline" being:

The only thing I could think about was my loss of respect for the Fortune 500 Company she worked for. The company had just lost a potential customer because of one executive’s unrelated actions.

John's post reminded me of a recent experience I had that was eerily similar.  It is so similar, it makes you wonder how many times such "employee brands" actively work against the "corporate brand".

So, onto my experience:  I was traveling out east to a business meeting a day early and so I was traveling "lawyer incognito" -- i.e. I was in jeans and a sportshirt.  

It turned out the person next to me was a young associate lawyer with a BigLaw firm -- her briefcase was plastered with the firm logo, her legal pads were festooned with the firm logo, and she was writing with a firm logo'd pen.  It was almost like she was a pro athlete with a sponsorship deal.

She was also sick -- coughing, sneezing and generally moaning about her predicament.  I thought I would be nice (Okie friendliness) and offer her a couple of tissues I had in my Booq bag (remember, I was traveling incognito) as well as a couple of cough drops.   

She wasn't all that impressed. 

In fact, she shrieked at me that she would never accept anything "of the kind I was offering" from someone like me.  Everyone sitting around us heard her, the flight attendants heard her and, more importantly, the general counsel of a Fortune 100 company heard her.

So, she suffered through the flight coughing and sneezing on everyone -- and no, she didn't cover her mouth when she coughed. 

After getting into Baltimore, the general counsel walked up to me and commented about her rude behavior.  I remarked that "life is too short" to worry about it but that I would be mortified to have her as an employee in my firm.    The GC asked me if I was a lawyer and laughed when I mentioned that I was and that I was the hiring partner for my firm.  We ended up trading business cards and it may turn out that we can do business with one another.  If not, at least I met an interesting person to have dinner with when I am out east.

As we were walking through the airport, the GC remarked to me that he would be sure to "blackball" the young lawyer's firm from ever doing any work for him.  I asked him why, afterall the young lawyer was sick, probably stressed and the firm shouldn't be held to blame for her poor attitude. 

The GC's response: "everything she does reflects on the abilities, culture and ethos of her firm.  You don't engage the marketing materials, you engage the people.  If she is the type of person the firm thinks is 'top notch,' the firm doesn't have a clue."

Wow.  His comments will make me reevaluate whether or not to buy logo'd merchandise for our firm in the future - but, more importantly, they will be in the forefront of my brain when making hiring decisions in the future. 

Our people are our "brand" - I know what branding message I want to be sending, and it isn't what we saw on that flight.  Are your employees/associates/team members getting you blackballed?

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Lawyers as Leaders of Change in Customer Service by Professionals

Posted by Stephen M. Nipper at October 11, 2005 10:50 PM

Kudos to fellow rethinker Matt Buchanan who has an article in this month's issue of Law Practice Today entitled "Lawyers as Leaders of Change in Customer Service by Professionals."

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Learning from Doctors--How to Not Be Sued

Posted by Stephen M. Nipper at October 6, 2005 12:30 AM

Upon the recommendation of a friend, I recently picked up a copy of the audiobook (via for Malcolm Gladwell's book entitled "Blink."  [ Link]

Blink is about (in my own words) gut impressions...reading people, reading situations...going with your intuition.  It is a very fascinating read (listen).  Via Amazon you can even read an excerpt that gives you a good sense of what the book is about.  Anyway...

Section five of the book is entitled "Listening to Doctors."

[Replace the word doctor with the word lawyer in the rest of this post ( is painful to do that, but trust me).] 

In that section, Gladwell talks about various studies on the incidences of malpractice among doctors.  Do you know what studies show?  They show (paraphrasing Gladwell) that the risk of being sued for malpractice has little to do with the number of mistakes you, in fact there is another element. 

That element the patients were treated on a personal level by their doctor.  Did they have a relationship with their doctor?  Was he snotty with them?  Negative?  Condescending?

One study Gladwell mentions provides some interesting pointers to all of us lawyers...doctors who spent even a few minutes longer in consultations with patients, who gave orienting comments explaining the process, who were active listeners and who had a sense of humor/tried to be funny were much much much less likely to be sued for malpractice even though they made just as many mistakes as other doctors (who WERE sued).

Gladwell points out that it is all about your tone of voice with your clients, are you dominant or concerned?  That one aspect (tone of voice) makes all the difference in the world. are you treating your clients these days? How long does it take to you return a client's phone call? When was the last time you sat down with a client to actually explain your opinion letter to them?

Update: I noticed that Ernie Svenson mentioned Blink a few months ago in a post entitled "Strange book recommendation for lawyers."

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Niche Markets, Trader Joe's and Law Firms - Which of these things is not like the others?

Posted by Douglas Sorocco at September 23, 2005 10:40 PM

Several years ago my wife spent a year on an internship at the Palo Alto Veterans Administration.  While it was tough to be 1500 miles apart, it was a great way to get to know the Bay Area and explore Northern California - including many kayak trips in the Santa Cruz/Monterey watershed. (Yes, I was an executive platinum frequent flyer that year) 
Prior to starting off on each of our adventures, we had to make the obligatory stop at Trader Joe's for provisions.  Since we don't have any in Oklahoma (hint: great opportunity here guys), we still seek them out when we travel on either of the coasts. It is still part of our adventures - it became engrained in our travel plans.  A trip just isn't the same without a stop at Trader Joe's.
By now, some of you are probably asking what this has to do with anything.... well, 800-CEO-READ Excerpts Blog has an interesting series of posts on Trader Joe's and their marketing efforts. The 800-CEO-READ Excerpts Blog is part of the 800-CEO-READ blog and bookstore, both of which are tremendous resources and full of insightful business and marketing information
I especially like the 3rd post in the series which deals with Trader Joe's niche marketing efforts.
How does Trader Joe's define itself? A former vice president of operations for the chain put it this way: "It's a mix of supermarket, grocery store, and international gourmet shop with wholesale club pricing." Industry analysts and various other retail experts generally classify Trader Joe's as a specialty retailer or niche marketer. But which niche? Basically, the chain's simple but brilliant marketing strategy is to take a little from each concept and offer great products at fantastic prices. There really are no complex marketing strategies--just good solid execution based on giving consumers something different.
In my prior post, I asked law students to ask a couple of simple questions relating to the "perfect client" - now, I have another series of questions you may want to ask:
What do you do differently?  How do you make a difference to your clients? What about your firm's story - what makes it different from every other?
I bet you will get answers like: "We go the extra mile," or "We deliver practical and pragmatic advice," or, my personal favorite, "Different?  We are the XYZ firm, everyone does it like us.  We are leaders in the profession."  Pretty helpful answers aren't they?
So, you may want to ask yourself -- do you want to work for a firm (or Judge, or pro bono office, or organization....) that is no different than anyone else, or do you want to work for an organization that is different? 
As Trader Joe's puts it -- they are a "store of stories" -- what will your story say about you?
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Who are your clients?

Interview season is upon us in the legal realm and in the spirit of helping those eager to enter the profession - I would like to offer two questions for the bright young eager legal minds to ask of the senior partners sitting across from them:
Who are your clients?  Who are your best clients?
The answers might be more informative than you might think.
Michael Cage's Small Business Marketing Systems blog has an interesting article last month entitled "Niche Marketing - Growing your business with small numbers" that I think fits in quite nicely with the client/sales meme floating around Rethink(IP) the last couple of weeks as well as the question outlined above.
I love posts that start with anecdotes or stories (hence my new-found love of the book The Tipping Point - lots of great stories) and Michael's post doesn't disappoint - Best Buy's "Jills" are described as is one of his client's who focused on catering to 10% of their customers.
The point Michael makes - is that in order to grow your business, why not shrink or focus your core marketing/service efforts or message? (Which perhaps flies in the face of Tom Peters' adage "You can't shrink yourself to greatness.")
When I work with new clients, I often encounter the following request: “I want more clients.” My response is a question: “What kind of clients do you want?” The (wrong) answer I most often get: “It doesn’t matter as long as they have money, we get a little bit of everyone in here.”
The right answer takes a little more thought.
When you really get to know your clients, you will find a small percentage account for most of your profits. In fact, it is common for less than 20% of your clients to account for nearly all of your profits. The big problem? Most businesses have no idea who those “perfect clients” are!
Who are your perfect clients? 
Ask any lawyer that question and you will invariably get the response "those who pay" -- but is that the only determinant for a "perfect client"? 
Unlike Best Buy, lawyers provide professional services -- we work with clients to find solutions or craft responses.  While it is great to have clients that pay, shouldn't things like cost, aggravation, market niche, quality and enjoyment come into the equation as well?
I recently had a great example of this from one of my partners at DCR
We were sitting around in our conference room discussing opportunities with a potential new member of the firm.  The 'newbie' asked the question "who are your clients" and my partner, instead of rattling off a list of our current clients, responded with a description of who he believed our firm was best able to serve. 
It was a fairly narrow definition and focused in on what we all believe the core strengths of the firm to be -- it didn't mean that we would turn away business that fell outside that definition, but it did serve as a reminder that we don't spend a lot of time and effort chasing it. 
We know our niche and we believe we are able to provide superior service and legal insight to that niche.  It also happens to be the niche of clients that we have the most fun servicing and truly enjoy working with.
Coming out of the LexThink discussions last April, one of the attendees (a non-attorney) was a little flustered that some of the attorneys were spending too much time discussing "the perfect client" instead of discussing how best to provide "perfect service".  While I certainly believe that as a profession we have a long way to go on the "perfect service" front - it is equally as important to sit down and determine what your perfect client looks like.
In the end, tailoring your perfect services to your perfect client may just result in everything being - well - perfect.
I would love to hear of any law students who ask this question during interviews - drop us an email or leave a note in the comments.
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Bigger isn't always better

Posted by Stephen M. Nipper at September 14, 2005 12:51 PM

If you enjoy Rethink(IP)'ll enjoy this article from the current (August 2005) IP Today:  LITIGATORS CORNER:  Who Says Contingent Fee Lawyers Are the Biggest Moneymakers?  [PDF]

Money quote:

No wonder large companies think litigation is too expensive. Their own need to hire big firms, coupled with runaway legal fees, is the largest part of their problem.  A defendant that shoots itself in the foot shouldn’t blame someone else for its own stupidity. Their corporate mentality, which equates size and expense to quality, is the main cause.


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Carnival of the Capitalists - Rethink(IP) Edition

Posted by Douglas Sorocco at September 6, 2005 09:00 AM

Thanks for wandering on by Rethink(IP) for this week’s installment of the Carnival of the Capitalists.  If you are scratching your head trying to figure out what the heck Rethink(IP) is all about – head on over to the Blawg Review (as in “law blog”) and read the synopsis of our blog and our collaborative efforts. 


In a nutshell, we are three intellectual property lawyers from three different law firms (that’s right, we’re competitors!).  We developed a friendship based on a common belief that there’s a better way to practice law and deliver legal services.  The Rethink(IP) project was born out of that common belief.


We each have our own blogs – The Invent Blog (Steve Nipper), Promote and Progress (J. Matthew Buchanan) and PHOSITA (Douglas Sorocco) – and we would enjoy having you stop by over there as well.  It is through reading one another’s blogs and interacting (electronically) with one another that we met, a prime example of the “virtual team” Jack mentions. 


This version of CotC is, therefore, a collaborative effort as well.  These are the posts we found engaging, thought provoking, profound and down right funny.  If it is a little bit disjointed, we make no apologies.  You’re going to have to deal with it because, in the end and despite all of the cool electronic tools we have, getting three lawyers together on a single document is still a lot like herding cats.  It is, however, a great way to “make knowledge.”


As you can imagine, most of the submissions we received this week are hurricane Katrina related.  We have attempted to balance CotC with some other noteworthy posts that we ran across the past week.


So without further ado… Carnival of the Capitalists.




What a week. 


The images we have observed have been truly heartbreaking and elicit so many different emotions – sadness, empathy and anger (and one blog has a handy print optimized page detailing all the relief efforts).  The blog-o-sphere has once again led in the effort to bring aid and comfort (including insurance information) to those in the gulf coast region (a region that is strategically crucial to the U.S. for reasons other than just oil and gas – namely, transportation of food and goods) – most notably Buzzmachine (Recovery 2.0 Planning) and The Truth Laid Bear have worked overtime to focus attention on the many deserving charities and aid organizations (watch out for the scammers) that have stepped up to the enormous task at hand. 


Everyone thinks we will rebuildNew Orleans bigger, better and bolder – but what if, we turned it into one big national park?  Furthermore, will Katrina become the next big infomercial craze?


Of course, Gadgetopia points us to Google Maps’ response – which is an emotional landscape that is too difficult to even comprehend, especially in view of the diaspora map posted by Gongol.  Carolyn Elefant worries about professionals in solo practices (the Working Solo blog timely explores if there is a link between a healthy lifestyle and business success) and Catallarchy has an overview of gouging practices and their effects on consumers.  The Drake Review spotlights the problems that small and medium business will be encountering.


Stocks have also taken a hit and the likelihood of a recession is 20% although, as the blog author relates, people who see the glass half full would argue that there is an 80% chance that a recession won’t happen.


Almost every commentator acknowledges that it is time to change and, as succinctly stated by Cheskin, in light of the death and destruction – bling has lost its glitter.


One little bit of good news, it turns out that coffee is actually good for you.


All Hail the Chief


Chief Justice Rehnquist has passed away and the talking heads are all a twitter – like Katrina, some are sad, some are mad and some are downright glad.  We can’t post anything past Sunday at midnight, so I guess we can’t tell you who was nominated to replace Rehnquist as Chief Justice.


Business Stuff


Ever wonder if you were ready for management – well, the folks over at the Value Management Blog give us 10 reasons why we should stay out of management including our favorite #5 entitled “You're Too Content with the Status Quo.”  Want to know how to be cruel to your employees?  It’s easy – just make up an organizational chart.  For crying out loud, if you do decide to leave because you just can’t take it anymore – take Larry’s word for it, don’t choose the counteroffer, you’ll thank him for it. 


Don’t feel too bad if you misplace your car keys every now and then, California apparently has misplaced almost half of its 70,000 state-owned fleet.  I guess the rules for citizens don’t also apply to government employees.


Wonder Branding’s post “A View through the Windshield of Life” reminds us that it is important when dealing with female customers to not judge a book by its demographic cover, but instead examine their values and needs to determine how best to serve them.  Multiple Mentality takes a different approach, arguing that companies need to be realistic in reaching out to their potential customers, regardless of what others may say, noting that “[m]ost real women have far more flaws. And that’s why we love them.”


In a lot of ways, networking is like marriage…you don’t just walk up to a prospective mate and say “Let’s get married.”  However, patience and the love of a hobby can be woven into an extensive business network.  Another promising area for business is through bloggers networking together to form “mutually beneficial business partnerships” (pardon the shameless promotion, but our little rethink(ip) collaboration seems to be a perfect example of such a relationship).  The author notes that “the blog connection concept might eventually turn into a business all by itself.”  Of course, another way to network is use someone else’s customer list.  One way to do this is through illegally stealing someone’s trade secrets, but the preferable (and legal) way is via “leveraged marketing.


On the tech side, do we now have to worry about hackers in hotel rooms stealing our credit card information and taking pictures of us while we sleep?  If only they’d have better marketed themselves to the corporate office the downsizing would have been prevented and their life of crime could have been diverted.


Thinking of switching teams?  No, not in the Seinfeld sense, but in the ‘life is a team sport’ sense.  No matter what company, family, or gang you’re a member of, they’re all teams (business and gang-bangers in the same post – you’ve gotta love that!).  If you’re unhappy with your current team, you’ve got to break free from the one you hate and pick one that suits you better.  When switching (and even when thinking of switching), remember that there are winners, losers and victims in the crazy game of life and, no matter your team, the field on which you play the game can have a profound effect on the final score.


Ouch – have you been banned from the really big exclusive geek illuminati important social networking conferences?  If you have, you may have been Foo-barred.  Speaking of being barred, apparently California’s attorney general is taking on fast food restaurants – namely, their french fries.


The Importance of a Liberal Arts Education” is offset by claims that Google undermining education by displaying ads for plagiarism and cheating?   Damn them! 


Are you too old to start a business (or, put another way, have you forgotten to buy long term care insurance)?  The answer is, as usual, it depends (no pun intended).  If you understand RSS (better yet, how to market RSS) – you are probably ahead of the game and knowing the intricacies of applying for a small business loan can’t hurt either.  Another option would be giving your downtown some open heart surgery. 


Be careful where you put that business – the cost of doing business may overwhelm your Web 2.0 company – in fact, why not look to the prairie states? (where you can actually get a house for the median price)  Then again, none of it really matters if you simply dell your customers. (“Dude, you got delled!”)  In fact, the signs are that all business will be conducted in Asia by the year 2156.  In the end, be careful who you get into bed with


Meanwhile, marketing to Gen X-rs (is that trademarked – in fact, did a gorilla choose your own company name?) has never been so easy thanks to the Lip-Sticking blog (in fact, it is even easier for women – just make them happy and they will buy).  All it takes is a simple little question “What if I started a business that is the Windows of _________?  We think it would just be better to stop practicing law and start juggling our money between bank accounts in order to maximize interest or better yet, maybe we should just go to work in the stock market.  Maybe there are other things you should put on a “what I want to learn” list.


The future isn’t in plastics, it is the B2B to the hispanic market. The use of celebrities to market to women is discussed over at the Learned on Women blog while the Bizinformer blog wonders how far one will stretch ethics in order to increase profits.  Google is, for all intents and purposes, going to own our souls in the very near future – or at least our mobile devices.


The next time you take your printer cartridges to get them refilled (or if you refill them yourself) – be warned.  You could be committing an act of patent infringement.  At the same time, the invention of the century could be The Life Straw which can clean up to 150 gallons of water by simply sucking through the device.  Such life saving devices will be “the play” of the year now that Katrina has struck.


How to Save the World posits the Ten Most Important Trends in Business (echo echo echo…) while the SF Indymedia blog examines the hidden and not so hidden racism of Willy Wonka and the Chocolate Factory.  Meanwhile, with all the graphs, figures and gizmos – is it any wonder why the music industry (supposedly) can’t make any money on the internet? 


Maybe the music biz should consider Firing the CEO – as Martha says it’s a good thing?  There might be a few folks who disagree with that point – more likely you should fire any attorney who files a million dollar patent application.


Have you ever wondered what exactly ‘Word of Mouth’ advertising means? A lot more than just WOMMA, that’s for sure.  Of course, WOMMA is so old school – or is it new school?  Who knows – but the Media Guerilla may take a stab at explaining all the crazy marketing mumbo-jumbo to us. 


While we are at it – it is good that we now know how to manage losers – as long as we don’t see our coworkers using these tips on us!  Since we have our managing hat on, maybe we should fire all of the relatives of employees we mistakenly hired.  Marketers would never consider themselves losers (is it the medium or the message), so the rest of us should just learn their language and move on. 


Finally, this week’s best blog post -- told in the voice of a rhinocerous -- belongs to The Skwib (if the rhinocerous thing isn’t enough to get you to click that link, maybe “take calculated risks, but no hot dogging” will).  Yeah, we ignored the whole oil price thing, even though it did bring out some strange behavior in folks.  Sue us (just don’t ask for a referral).  It’s all part of having free markets, although others have doctrinal conflicts with it.


Thanks for reading!  I would encourage you to stop by the Blawg Review carnival that is going on right now over at Blawg Wisdom.  You’ll find the best legal commentary available as well as some thought provoking discussions.


Next week’s Carnival of the Capitalists will be over at Evelyn Rodriguez’s blog Crossroads Dispatches (Evelyn is familiar with surviving natural disasters…she was on Phi Phi Don island off the Andaman coast of Thailand last December when the tsunami hit and blogged about her experiences then).  Have a great week!

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What Grade Would You Earn?

Posted by Douglas Sorocco at August 30, 2005 09:06 PM


Sometimes you stumble over something written on a blog and you just gotta go back and read it over and over before it fully settles into your consciousness.

Ageless Marketing has just such a post this week entitled "Trust is a Report Card Grade, Not a Vision Item or a Mission Goal." It ends with the tagline "... to be continued" and I must admit, I am looking forward to it.

In a nutshell, the author takes a jab (very well deserved) at all those company mission statements that make it a primary objective "to build trust" with customers.

We can’t tell you how many vision and mission statements we’ve seen citing building trust with customers as a primary objective. You’re not in business to build trust. Trust is not a primary objective. Serving customers beyond compare is. Customers reward the companies with trust and loyalty commensurate with the devotion the company gives to their well being.

Right on! Like many companies, law firm mission statements are even better - a sampling includes these gems:

"Our clients are entitled to professionalism from us. We ascribe to the highest professional ethics, and protect their confidences from improper disclosure. Their secrets are safe with us." - i.e. Trust Us.

"We value trust and loyalty. These are earned, but once earned, they are great enablers. They enable us to deliver the most timely, cost-effective and sagacious legal advice to our clients."

"He believes that it is imperative for a client to form a strong working relationship with the attorney who will be handling his or her case. Mr. Smith generally develops lasting professional relationships with the individuals he represents." - i.e. Trust us, you will like us.

The point Ageless Marketing makes: don't strive for trust, don't make it a primary objective. Instead, strive for perfect client service, the best product you can make or deliver. Do these things and the trust will follow. Trust is a badge to be earned - or a grade to be written down on the report card.

What grade would you give yourself? More importantly, what grade would your clients give you?

UPDATE: Ageless Marketing followed up today on their "to be continued" promise with a post entitled "Trust Flows from Cultures of Trust". Once again - they nail it. Go take a look, but here is the penultimate quote:

Thus, enumerated bulleted “how to statements” on building trust, such as contained in David Maister’s book The Trusted Advisor (see yesterday’s post), ring as hollow words, for even a con artists follow those steps. Enduring trust flows not from tactical actions but from strategic principles embedded in a culture of trust.

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Patent Preparation and Prosecution Isn't a Commodity

Patent Preparation and Prosecution Isn't a Commodity

Posted by Douglas Sorocco at August 28, 2005 08:08 PM

Via Brand Autopsy quoting Hugh MacLeod:

...when you start turning your products into commodities, you start treating your customers like commodities.
Patent preparation isn't a commodity, no matter what some folks think.  When preparation and prosecution becomes a loss leader, so do your clients.

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Remember the bucket

Posted by Stephen M. Nipper at August 2, 2005 01:11 AM

 A couple of weeks ago, Justice Sandra Day O'Connor spoke at a judicial conference in Spokane, Washington. During her speech, she read one  bucket.jpgof her favorite poems, a poem which has since become a favorite of mine. I include the poem below (with the author's permission, of course):

"There Is No Indispensable Man"
by Saxon N. White Kessinger, Copyright 1959

Sometime when you're feeling important;
Sometime when your ego's in bloom
Sometime when you take it for granted
You're the best qualified in the room,

Sometime when you feel that your going
Would leave an unfillable hole,
Just follow these simple instructions
And see how they humble your soul;

Take a bucket and fill it with water,
Put your hand in it up to the wrist,
Pull it out and the hole that's remaining
Is a measure of how you will be missed.

You can splash all you wish when you enter,
You may stir up the water galore,
But stop and you'll find that in no time
It looks quite the same as before.

The moral of this quaint example
Is do just the best that you can,
Be proud of yourself but remember,
There's no indispensable man.

So. Next time you are patting yourself on the back for the case you won, how many people viewed your blog yesterday, or whatever gets your ego thumping, remember that bucket. [Photo source]

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Buckets with holes in them.

Posted by Douglas Sorocco at June 16, 2005 01:30 PM

I ran across a great quote the other day:

Fix the holes in the bucket first, and then worry about how to add more water!

The reason I like the quote is that it made me think.  I literally stopped and spent some time thinking about the quote and how it applied to my practice and intellectual property law in general.

Does anyone ever fix the bucket first?  I don’t think so.

A couple of examples:

  • Patent reform: no one is talking about improving the quality, consistency, training and working conditions at the patent office.
  • IP practice: most attorneys don’t work to strengthen their existing client relationships, they look for the next bigger, better client – that next notch on their belt.
  • IP portfolios: most companies don’t look at their portfolios with an eye toward plugging holes or covering the white space – most don’t align their IP with their business plan.

I am sure there are others, but these are the main ones that immediately hit me. 

What “holes” do y’all see out there?

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Do you believe the marketing hype? Or do you dig?

Posted by Douglas Sorocco at June 1, 2005 06:19 PM

Interesting quote over at the A VC blog:

I am not joking about this.  A VC investment is not marriage, but it's damn close.  One thing I've noticed over the years is that the VC does a lot of due diligence on the entrepreneur and his company, but entrepreneurs often do not do enough due diligence on the VC and his firm.

What kind of due diligence do you do on the firm you are going to hire to do your intellectual property work? 

I once heard an interesting way one company bought services, when they arrived at the office they would always ask the receptionist, bellman, security guard, coffee barista etc. whether they would hire the prospective firm.  

If they got a negative reply, nine times out of ten they wouldn’t even go on to the meeting.  It isn’t what you do when everyone is watching, you know.

The moral of the story – no place is too crazy to do a little digging.

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staring into the gates of hell

Posted by Douglas Sorocco at May 28, 2005 02:07 PM

Some ramblings that have been going through my head the last couple of days…

Sparked via Barry Moltz's blog:

Mary Schmich wrote an article yesterday in the Chicago Tribune.

"Have you ever gazed into hell? I did right then. Let me tell you what it looks like.

"Hell is a place crowded with people thumbing their BlackBerries, chattering on their cell phones, shaking their earphones to an iPod beat and surfing the Internet on their Wi-Fi'd laptops."

"Hell is a round-the-clock orgy of people relating intimately with their high-tech gadgets while ignoring everyone around them. It's a place whose motto is not "Be here now," but "Be somewhere else all the time."

While out east this week I saw three people thumbing their BlackBerries while driving their cars on a beautiful late spring day – everything was green, the sun was shining and creatures abounded along the sides of the road. 

A thought that ran through my mind… if “these type of people”, including myself, were still in elementary school – I wonder how many of us would be on Ritalin?

How many of us are so overloaded with the next piece of information that we cannot act on the last piece that came in?

How many of us are looking for the next client, the next project, the next XXX?

Maybe we all just need a little Ritalin?  I would prefer enjoying a nice piece of contraband and a book (albeit a work-related book)`while on the porch, but then again… I might miss some information that is flowing electronically into my new gadget toy… er, tool.

Has anyone out there ever told a client that “they were not available 24 hours a day”? What was the result?

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Thoughts on the growth of the Middle Coast for legal services - its more than just our lack of rosewood conference tables

Posted by J Matthew Buchanan at May 25, 2005 10:17 AM

Look at this money quote from Doug’s excellent post on PHOSITA yesterday:

The firms in the “middle coast” are expanding to fulfill a real need: client driven legal services, alternative billing and compensation systems, sanity concerning the number of billable hours required, and service. 

Companies are no longer willing to pay sky-high rates in order to subsidize $100+ per square foot office space rates, unsustainable associate salaries and rosewood conference tables. 

Is that good stuff, or what?

Doug’s post made me think a little deeper about the “middle coast” concept.

Why is the middle coast growing as a destination for legal services work?

I can at least offer a theory as it relates to patent work.

The new expertise has landed in Toledo…and Oklahoma City, and Boise…and Anytown, USA.

Corporate counsel continue to get hammered on legal expenses.  For patent work, India is an option but most corporate counsel that are in a position to consider it are worried about the quality of the craftsmanship.  They’ve been through a patent litigation or two (or twenty) and understand the importance of quality craftsmanship.

The hammering continues, so they slowly look for other options.

And there we are, right in the middle….offering the best of both worlds:

lower expenses (ask — you’ll be amazed!) with the same level of expertise.

I’m willing to guess that the difference in expenses has probably always existed.  But, I think the expertise issue has changed dramatically over the last decade or so.  I’m not referring to expertise in substantive patent law and practice — small firms in the middle coast have always had a high level of legal expertise.  No, I’m talking about technical expertise.

In the past, technical expertise meant engineers.  Lots of engineers.  And physicists.  Middle coasters had access to these people and therefore had the technical expertise that allowed them to compete.  But, in the last 30 to 40 years, the requirements for technical expertise have changed.  Now, patent firms must offer skills in biology, chemistry, computer science, and other developing fields — the new expertise.

Over the last several decades, big firms seemingly had a lock on this new expertise.  They gobbled up newly minted lawyer-PhD's in all of these new fields.  They took their push for the new expertise even further by hiring squads of non-lawyer PhD’s and resurrecting patent agent practice in the process.  For awhile, the middle coasters couldn’t compete…geography, money, culture and many more criteria heavily favored the big city.

But that’s changing.

All of a sudden, experts in these new fields are staying in the middle coast.  For some, the middle coast is home, making it an easy decision.  For all, its a different way of life — the sanity Doug mentioned in his post.  Have you heard?  We’ve got PhD microbiologists in Toledo now (and I’m not just talking about my wife!).  Doug has ‘em in Oklahoma for crying out loud.  That’s a little tongue-in-cheek, of course, but the point is that big cities — and big firms — no longer have a lock on the new expertise.

This changes everything.  All of a sudden, when big city and middle coast firms are compared, the spotlight shines almost exclusively on expenses, which is where we really shine.

There is another feature that attracts companies to large firms (which are typically big city firms) — raw capacity.  You want 35 associates to handle your patent prosecution needs?  There’s a big firm or two (or twenty) that can do that.  In fact, they’ll make sure those associates start on it tomorrow evening.

None of our firms, individually, can do that.

But our network can.



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Goading Success

Posted by Stephen M. Nipper at May 13, 2005 08:36 PM

Are you a spark plug for your clients? Management Craft's recent post on "Be a Catalyst" puts it this way: "We can add a lot of value by being a positive catalyst." She's right!

As IP attorneys, we are in a unique postion where we can be a catalyst...inspiring our clients, motivating them, spurring them onwards. Greatly increasing their chances of success.

OR...we could just sit there like bump on a log.

Which is it going to be?

[Via BizBangBuzz]

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Hot for teacher

Posted by Stephen M. Nipper at May 10, 2005 11:11 PM

Matt's post from yesterday has prompted me to return to my draft post on "Homework for clients."

I hate giving secrets away...but blawgers do it every day. Maybe it is low risk because most of the people reading blog posts drink the Kool-Aid too (a.k.a. fellow ostrich farmers). Either's one of my better tips from the past year.

Give your clients homework. You heard me, give them homework. Sure, there are some who don't need homework...but a vast majority of them can really benefit from some assigned reading.

I have three favorites (I could go on and on about books, but this post is about the concept, on the content).

When I have a client who is struggling with branding and selling their product/service to others, I frequently recommend Karen Post's book "Brain Tattoos: Creating Unique Brands That Stick in Your Customer's Minds." I know Karen via Homann's Think Tank Tuesday, and the book is dead on. That is exactly what clients need to understand...the importance of having a brand and burning that brand image upon the brains of your customers. Link

Another great book that you should consider recommending to clients is "Creating Consumer Evangelists: How Loyal Customers Become a Volunteer Sales Force." Most of your clients have customers who are rabid. Why not suggest a book that would help your clients harness that power? Link

Finally, a blog post that is a psuedo-book. Paul Graham's "How to Start a Startup." Oftentimes, I have clients who are at that point of learning "Venture Capital 101." Graham's article/post is one of the best I have ever read for explaining the process, not in legalese, but in plain English.

So there you have a handful of my favorite resources. Now, do your clients a favor and invest some nonbillable time in recommending to them books, articles and blog posts which can help them. You will be amazed with the "thank you" responses your clients give you.

The comments are open (until I start getting spammed) if anyone else wants to plug their favorite client resources.

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Entrepreneurs, The Big Idea and The Next Step, or "Have you hugged your local entrepreneur lately?'

Yesterday, as I was feeding my addiction to business and legal news by listening to CNBC via XM radio in the car, I caught an interview with the Small Business Editor at the Wall Street Journal.  It was a little piece of business “fluff,” but, for me, it was quite revealing.  The piece included a discussion on the early steps entrepreneurs should take to advance their “Big Idea” toward a successful business.

Where should entrepreneurs turn for help with the basics of starting a business, asked the host.  Not surprisingly, the guest did not mention patent attorneys.

This is when it hit me:  Most patent attorneys do not use their position to help entrepreneurs in the early stages of getting the Big Idea off the ground.

As patent attorneys, entrepreneurs often come to us early in the process.  We provide a variety of valuable services, such as conducting patentability searches and infringement analyses, drafting and filing patent applications, and helping people with the patent/trade secret decision.

But, as a group, we do not provide entrepreneurs with needed help in getting their business off the ground…in helping them define and take the “Next Step.”  I don’t intend for us to form businesses and draft operating agreements – that’s not our realm.  I’m speaking in more general terms, such as making connections with accountants, making introductions to other entrepreneurs, helping them locate office space, lab space, etc.

I’m proud to say that my firm routinely conducts these services for people (and I know the other rethinkers do the same).  Recently, I made a connection between the university where I did my graduate work and a client who needed lab space.  A relationship was formed, but no lab space was offered.  So I took it a step further and worked with the local economic development group.  Two months later, my client has lab space in a university building and is working on his Big Idea instead of worrying about finding lab space.

An aside:  All the time I spent making the connections (probably several hours) — non-billable.  Therein lies the answer to the question of why most big firms frown on these “needy” clients and avoid them to the best of their abilities (high “new client” retainers usually do the trick).

The reason my firm does it is simple.  Its a one word (man) answer, as a matter of fact.  Fraser.  Our senior partner, Don Fraser, has practiced patent law for over 50 years, as did his father before him.  His perspective on the practice is that patent attorneys are uniquely positioned to really help the entrepreneurs of this country.  Writing patent applications that cover their invention is only a small part of what we can, and should, do for them.  Entrepreneurism, as Don likes to say, is a limited resource that must be prized and cared-for properly.  It is our responsibility to help in the care for that resource.

Big firms won’t provide these services (some general practice firms may, if the intellectual property partner can refer the “business” matters to a business partner and the time can be billed).  This creates an opportunity for the smaller firms of the world.

Sacrifice some billable time and go hug an entrepreneur today!

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Legal Business Development - Providing Real Value to Clients

Posted by Douglas Sorocco at May 8, 2005 11:36 AM

The Strategic Legal Technology Blog has an interesting post highlighting a comment from a reader on the issue of business development (BD) within a large law firm.  The quote below is from the reader:

I spent a number of years in-house with a large financial institution. The focus on market analysis there was huge, analyzing customer segments, determining customer profitability, setting profitability targets, defining strategies for dealing with customers who didn’t meet those targets, etc.

One thing that continues to amaze me about my large law firm (and I suspect that it is not a lot different elsewhere) is the seeming disregard for all sorts of basic business development approaches. It’s as if the lawyers say, “Well, BD means either (1) take the client to a sports event, (2) host an internal CLE event, or (3) speak at some conference, and there is nothing else that I could possibly do to develop business.

They don’t start with the basic cross-selling of their own capabilities to their colleagues, they don’t focus on providing real value to their clients (because a lot of it would involve the investment of non-billable time that the firm doesn’t recognize, even if it pays off exponentially later), and they don’t analyze what they do right (and what the they do wrong!) to determine what things to emphasize (or ditch). And yet these are all intelligent people.

It continues to mystify me (although I believe that the emphasis on the billable hour works to discourage any such activities).

That darn billable hour again – it just keeps coming up as a deterrent to providing innovative and inquisitive legal services to clients.  You could insert the “embedded patent attorney” (EPA) concept into that quote quite nicely and the same conclusions would apply.  In most firms there is no incentive from a billable perspective or from a firm management perspective to become “embedded” in the client’s business.

Wouldn’t it be fun to have a Chief Embeddedness Officer (hmmm… CEO) around.

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Trade Shows and the Embedded Patent Attorney

Posted by Douglas Sorocco at May 7, 2005 09:22 PM

Russ gets it. He just gets it.

I view tradeshow attendance as one facet of an ongoing education essential to the practice of patent law, no less valuable than CLE courses. Keeping up with the basic technology and industry trends is just as necessary as knowing the latest CAFC decision.

I have always been surprised at the lack of intellectual property counsel walking tradeshowsWelcome to Las Vegas Sign (with and without clients).  If anyone out there works in the industry, I would be curious to know the statistics of the number of lawyers attending tradeshows in general.

As Russ mentions, walking a trade show gives you a broader perspective of what is going on in your client’s particular industry – beyond what is in the disclosure document – and jump starts your knowledge of what is happening at the competitive level.

I think it would be fun to use my software program De Jour (MindManager) at a tradeshow – mapping out competing products and potential design arounds/blocking patents would be an interesting brainstorming meeting to have with a client’s technology team.

Doing it in Vegas would just add to the “cool factor”.

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Psycho's Yukon

Posted by Stephen M. Nipper at May 4, 2005 12:41 AM

On my way to pick my daughter up from school I followed a beautiful, clean, white GMC Yukon with a "For Sale" sign in the rear window. What caught my eye was the license plate: PSYCHO.

Thoughts flashed through my head. Psycho...psycho...psycho. I imagined what it would be like buying the Yukon. How often would I wonder "what did Psycho do in HERE?," "where did he take this car?," "what is THAT stain in the back???" Just seeing that license plate has forever tainted my mental impression of that vehicle, and perhaps white Yukons in general. It's a mental image I cannot remove.

How often do IP attorneys do the same thing?

Think about it. What is the mental image your clients get when then think of you and your firm? Do they see you as: cutting edge or old fashioned? A talker or a listener? An expert or a trusted advisor? Worried about billables or worried about helping your client succeed?

You have an image, I have an image, Psycho has an image.

I've got good news. An image doesn't reflect who you are, it reflects what other people think you are...and that is something you can change. It takes work...but you can change it. It's time to change your plates.

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Request for your insight...what homework do you give clients?

Posted by Stephen M. Nipper at April 27, 2005 04:10 PM

I'm working on a post about the importance of IP attorneys encouraging their clients to read certain books and certain blog posts. Do any of you do the same thing? If so, if you forward me your "must read" list, I'll incorporate that knowledge into the post too. Thanks in advanced. []


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How to Become a Client Visionary - Look to Your Mechanic, Subway Sandwich Maker etc.

Posted by Douglas Sorocco at April 25, 2005 07:47 PM

Matt Homann appears to have come out of LexThink induced blogging hibernation today and has fired off several client service oriented posts.  Well worth stopping by The [non]Billable Hour.

One of Matt’s posts was about becoming a “client in order to become a visionary” with the main premise being that lawyers don’t often go out and use legal services, so we don’t see “it” from the point of view of the client. Matt suggests going to the best attorney in town who has the worst client service reputation and see how you are treated. 

Interesting experiment – I will be curious to see if anyone takes the challenge and the outcome.

I don’t think most lawyers would learn anything from the experience, however. Why?  I don’t believe that most lawyers would be able to apply the experience to their own circumstances. 

Think about it for a moment – we are deluged daily with bad service experiences.  For every bad lawyer client service cliche there is one from your daily life:

    • A receptionist who puts people on hold: the gum chewing young woman who ignores you while talking on the phone to her boyfriend.  
    • Not returning a client’s phone call:  the doctor who waited three days to call you back with the results of your test results.
    • Unexpected bills/surcharges: the cellphone bill, the mechanics bill, the building contractor (this list is endless).

While it would be convenient to explain away poor client service on the basis of the lawyer never being in the shoes of a client, there are more than enough examples in our day to day lives that we should be able to draw upon.

The problem is, lawyers tend not to borrow from outside experiences.  For example, we don’t tend to read outside our comfort zone nor do we apply the experiences we have gained in our day to day lives to the problems confronting our cleints.  Not really all that much different than the doctor who makes you wait for 90 minutes in an examination room by yourself.  How would that doctor react if his lawyer made him wait 90 minutes with no explanation?

So, instead of being a client – why not simply make a list of service providers you hate, loathe, despise or abhor and then detail what they have done to make it on the list. 

And then do the opposite. 

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I can't stand it any more - press release nonsense run amok!

Posted by Douglas Sorocco at April 20, 2005 07:22 PM

The patent posse has teased me about my rants and I promised to be good – well it lasted all of 7 days.

This press release takes the cake — it wins the prize.  It is the most overreaching bit of nonsense I have seen lately.  I am utterly flabbergasted by this one – didn’t their patent counsel spend any time with the marketing department?

What has me in this state — well, lets look at the headline first: “ Micro Tech files patent in 123 countries.”  So, after reading this headline my thought process goes something like this:

Wow.  That is a lot of countries.  Must have cost them a lot of money – they must be serious.  Wait a minute…. why would anyone file in that many countries.  It would cost something like $500,000 plus future prosecution and maintenance costs…. hmm… doesn’t make any sense… let’s read this a bit further.

And thereafter I proceed to find out “the rest of the story,” as Paul Harvey would say.

It turns out that Micro Tech has filed a single Patent Cooperation Treaty (PCT) patent application.  This is a single application that may eventually be filed and prosecuted in all 123 countries which are signatories of the PCT. 

So, while it is true that they may, at some future date to be determined, file 123 patent applications – they haven’t done so today.  They merely preserved their ability to do so in the future.  Is the press release a lie?  Not really — if you squint and balance on your left foot while whistling Eminem tunes you could say that it has some semblance of the truth to it. 

While I am sure that this company is hoping their press release will generate some buzz, it isn’t going to be the type of buzz they want.  Would it have been that hard to get it right?  Shouldn’t someone have been watching out for this type of thing?

I have a proposition:  to every company and individual out there, you should have patent related press releases proofed by your patent counsel for accuracy and completeness.  They should be willing to proof these for you for free.  It should be part of the service they are providing to you as part of their role as an embedded patent attorney.

If they won’t do it — let me know.  There are a couple of rethink’rs around that would be happy to help you out.

I promise to be good from now on – really — I do.

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A rethinker's tip: Don't pay your patent attorney to record assignments

Posted by J Matthew Buchanan at April 18, 2005 11:28 AM

…or at least don’t pay them as much as you used to.

Here’s a rethinker’s tip that can really save money on the patent prosecution process, especially for mid-sized companies with growing portfolios.

The Patent and Trademark Office’s Electronic Patent Assignment System (EPAS) is, I think, a real hidden gem.  It stands in stark contrast to the fledgling system for filing patent applications electronically in that its easy, user-friendly, and completely web-based.  Surprisingly, not many patent attorneys are using it.

EPAS provides a tool to efficiently handle a small component of prosecution – recordation of assignments.  Incorporate EPAS into your attorney’s workflow, and you’ll save money.

Consider the “old way” of recording a patent assignment:

The patent attorney would prepare an assignment (a form agreement), send it to the client for execution by the inventor(s) (with a form letter), receive and review the executed assignment, file the assignment with a recordation cover sheet, send the client a form letter informing them that the assignment had been submitted for recordal, receive and review the recordation information from the patent office (often months later), and send the client a form letter with the recordation information (usually returning the original assignment).

There’s probably about 1.25 to 1.5 hours billed to the client for that service.  What did the client get for its money?  A series of form letters and information-shifting from the patent office to the client.  The attorney did not really add any legal expertise.

Here’s the rethinker’s way of recording a patent assignment:

Train the client to use EPAS.

This really makes sense for mid-sized businesses with growing patent portfolios.  If a company files 30 applications in a year and does all of its own EPAS filings, this produces a savings of about 45 hours of attorney time.  If you apply an average billing rate of $225/hour, that’s a savings of $9000/year.  What could you do with an extra $9000?  You could probably file another patent application (or two).  I’m betting that would make the business folks happy.

Just think of the savings that could be realized for companies that file 100 or more applications each and every year.

But what if you don’t have the resources (or willingness) to handle EPAS filings?  Well, now its time to see if your patent attorney is a rethinker.  Ask if they can follow this process for recording assignments:

Prepare a form assignment that can be customized for each and every application; have a paralegal review executed assignments, submit assignments for recordation through EPAS, and forward the recordation information once received (typically the next business day).

Using this approach, the amount of time spent by the attorney’s firm for recording each assignment drops to about 0.8 to 1.0 hours of paralegal time.  With 30 applications per year, a savings of about $6000 should be easy to attain.

EPAS offers the side benefit of faster processing by the patent office, too.  The EPAS system consistently provides recordation information in about a day.

No matter the approach you adopt, EPAS will save money.  Wouldn’t it be nice if your patent attorney suggested the use of EPAS? 


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Two tracks are better than one: Is your IP counsel truly only a patent attorney?

Posted by J Matthew Buchanan at April 12, 2005 02:16 PM

Nipper, Sorocco and I are all patent attorneys.  Like all patent attorneys, we prepare and prosecute patent applications.  But, unlike many patent attorneys, we look at the protection of inventions in a broader context.

Many patent attorneys have a one track mind:  patents…patents…patents.  When a client asks for legal advice on how to protect an invention, they begin quoting rates (or fees, whichever term you like) for patent applications.  They never even bother to ask the question of whether a patent is the best form of protection.  Many times it is not, meaning a patent attorney with a one-track mind is doing the client a disservice.

Of course there’s always the obvious issue of whether an invention should be kept as a trade secret.  Some patent attorneys will consider this in their analysis, but even this gets short shrift by many attorneys.

Other, not so obvious considerations are starting to come into the mix, too.  For example…suppose a client has an opportunity to exclusively license its technology to a Chinese company that has a 90% share of the Chinese market.  Is it worth pursuing a Chinese patent?  Are there other options?

A patent attorney with a one track mind would immediately quote rates (fees) for Chinese applications.

But wait.  Let’s open a second track and ask some tough questions.  What if its not a single patent application, but fifty?  One hundred?  Is this an opportunity that can wait for the filing of all the applications?  Have some or all already been filed?  Issued? What do we know about Chinese intellectual property law today that may help in the analysis?  How valuable is a Chinese patent?  What is the likelihood of being able to successfully enforce a Chinese patent?  Is the ‘enforceability’ of Chinese patents on an uptick or a downtick?  Any risks in disclosing to the Chinese without having an application on file?  Is there a foundation of trust between the client and the potential Chinese licensee?  What about Chinese confidentiality and trade secret laws?  How do the Chinese view technology licenses?  Patent licenses?

Could an exclusive license to the client’s technology, in the absence of Chinese patents, be sufficient?  Is it a better business deal when compared to filing one/fifty/one hundred Chinese patent applications and licensing the resulting patents?

The attorney can’t answer the business deal question.  But, a patent attorney that thinks on at least two tracks can better help the client faced with the problem.  Indeed, he can actually counsel the client.

This is just an example to generate some thinking.  The bottom line is this:  its not always about patents…patents…patents.  Your patent attorney should help you open the second track when appropriate and consider alternatives.


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More JSLogan on Billable Hours

Jim Logan over at the JSLogan blog is on a roll…. Jim continues his great posts on the shackles of the billable hour with a post entitled “The Bane of the Billable Hour, Don’t Miss the Next Great Opportunity.”


I'm more convinced than ever the next great opportunity in professional services is value-based billing. In my own business, we don't bill for time - never have, never will - and the results are impressive, both for us and our clients. Billing customers based on results, defined from their business purpose, is a Win-Win business proposition that creates fierce customer loyalty and ultimately more revenue for both the customer and consultant. Once your combined goals are aligned, the opportunity for mutual success increases.

Good luck with the book Jim – we will be looking forward to you and Richard’s further insights.

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Lawyers as leaders in customer service by professional service providers: A little more Texaco

Posted by J Matthew Buchanan at April 11, 2005 02:15 PM

I’ve been thinking a little more about my prior ‘Texaco/Back to the Future’ post on customer service.  As a short recap, I think law firm customer service, in the general sense, has slid to an all time low.  The Texaco scene from Back to the Future provides a vivid indication of the depths to which customer service has slipped in general.  In the scene, set in 1950s America, uniformed station attendants rush toward a car that just entered the station…looking to help the customer with whatever they need.  This, of course, never happens any more.  Not at gas stations or fast food restaurants.  And, most disturbing to me, not in law firms.

Over the weekend, I did a little rethinking on this issue and now I’m focusing on opportunity instead of bad examples.

Why?  Its simple.  I think the other professions are actually worse at customer service than lawyers.

Here’s two examples that started my rethinking.  In Saturday’s mail, I received two invoices from professional service providers:  one from an accountant and one from a health care provider (the hospital, I think; its hard to tell who actually sent it).

The accountant’s invoice reads “March accounting services….$X.XX”.  That’s it.  No explanation of the services provided whatsoever.  To make matters worse, I wasn’t even aware that I was a client of this particular accounting firm (they do the firm’s work, not my personal work).  That’s true…I had no idea I was a client.  How’s that for customer service?

And then there’s the health care provider.  The invoice was for a recent visit my wife and I made to the emergency room with our newborn baby.  That visit is, to date, the worst example of professional customer service that I’ve personally experienced.  These guys took poor customer service to a whole new low.  Everything turned out ok on this particular visit, but I remember leaving the hospital with a “what just happened” kind of feeling.  During the visit, no one would give me or my wife a straight answer on the problem  Not the nurses, not the physician’s assistants, and not the doctors (believe me, we asked).  Two doctors argued over the ‘diagnosis’ (in front of us, by the way) and my wife and I were eventually sent home without receiving any form of treatment for our 6–week old son.  Seriously, they didn’t do anything.  We sat in a room for a few hours, and then they sent us home.  Period.  I still don’t know who won the argument.

I understand that no treatment may have been the best route.  I don’t need a “product” to feel like I’ve received the benefit of professional services.  But I would have appreciated a competent consultation on the matter.  In fact, I think my wife and I deserved this.  I suppose its possible that my insurance doesn’t cover that level of service…

I know that clients of law firms have had similar experiences.  A friend of mine recently relayed an example in which his monthly litigation invoice took a huge jump recently (up, not down).  Turns out, the firm handling the case had added three associates to the team.  Full time.  The first he had heard about his new “teammates” came via the invoice.  Funny thing is, he said that he would have authorized additional resources had they approached him with a plan.  But, because of the way in which he was made aware of the “need” for more resources, he was left with a negative impression about the firm.

“Will you use that firm for your next litigation.” (I love asking the obvious questions).  He gave me a simple and telling response:  “Absolutely not.  Even if we win this one.”

So here’s the rethinking.  What if we improved?  What if law firms became the example of premier customer service from professional service providers?  Other professionals are so poor at it that we could be the best with minimal effort.  A few baby steps might do the trick…like improving invoices.  And, if that’s true, think of what a giant leap or two would do….like returning phone calls and eating a little overhead once in awhile.  The sky’s the limit here.


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When your services are a commodity

When your services are a commodity – everyone treats them like a commodity.

For example, if you take the “relationship” out of the legal services equation what are you left with? 

Simply put - commodity

The attorney loses, the process loses and, most importantly, the client loses.

Update: I missed it earlier, but the Patent Baristas have also weighed in on this topic in an excellent post. 

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Is your IP attorney stuck in the sand?

Posted by Douglas Sorocco at April 10, 2005 05:20 PM

Ostrich with head in the sandIs your IP attorney stuck in the sand?

You know the type – always too busy to return your call.  Always too busy to sit down with your technical staff and explain legal principles and concepts in an understandable manner.  Always too busy to stop by the lab or manufacturing plant to see what is new.  Always too busy. 

Always – just – too – busy.

This attorney is stuck in the sand – the metaphorical sand of the billable hour.  It can be the billable requirement that their firm imposes on them (I just heard the other day that it is creeping up to 2300 hour mark in the Philadelphia area) or it may be the strict adherence to the billable hour model of charging for services. 

However it is being used – the billable hour is the sand keeping the attorney from truly integrating themselves into your business or technology.  Putting in the extra “non-billable” time isn’t valued by the attorney because it isn’t valued by their firm.  Therefore, they are always “too busy” to do the other things that nurture and foster a relationship focused on the well-being of the client and their business. 

It isn’t valued anywhere in the legal revenue generation food chain.

An example: patent drafting and prosecution is extremely susceptible to alternative billing models – but many patent attorneys don’t offer them.  Oh, they may say that they do by offering to prepare and file the application for a “fixed fee”. 

The truth — they are still gauging the fee on billable hour methodologies.  They are determining the number of hours it will take – let’s say 40 – and multiplying that by their billable rate – let’s say $200 – and coming up with an “alternative” – i.e. I will prep this application for you for $8,000.  The client walks away thinking that they just got a “deal” and that the attorney will be working harder for them because, Afterall, the attorney is willing to be flexible and learn about the business.

See the shell game?  The patent attorney is stuck in the sand – they can’t get away from the billable hour even when determining an “alternative” fee.  They just “presold” the client a specific number of hours of their time.  The attorney has even less incentive to spend extra time with the client now – not more. 

So – the next time your patent attorney offers you a flat fee arrangement, find out their hourly rate first.  They are your hours – you might as well figure out how many you actually bought.

The image is from the The Social Customer Manifesto blog – one to read, if you know what I mean.

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Is your attorney working for you or against you?

Posted by Douglas Sorocco at April 9, 2005 02:13 PM

One of my favorite blogs for big ideas is Jim Logan’s JSLogan Blog

JSLogan is an example of the type of blog I cite in the forthcoming Rethink(IP) Aloud podcast – not in the legal realm per se, but filled nonetheless with great information and insight that can be ported over into our daily practices.

I just finished reading one of Jim’s posts entitled “Are you working for me or against me?”  Jim’s post riffs off Bob Bly’s blog post listing five industries that may have to work against the client in order to be successful. 

Jim’s post deals with business consultants but I am going to take some creative license and tweak a couple of the paragraphs:

The not-so-good lawyers want to sell you their services, regardless of whether or not you truly need their service to achieve your business purpose. These lawyers don’t define their success by achieving your purpose; they're merely concerned with selling you more tasks and billing more hours.

What if the lawyers you hired were only driven by your business purpose? What if instead of selling you endless services – tasks upon tasks – they actually solved your problems and were compensated for resolving the business issue that prompted them to be hired?

Do the lawyers you work with exist to actually solve your business problems or do you believe they secretly hope to never address your business purpose and as a result sell you more and more tasks?

All I did to these three paragraphs was replace ‘business consultant’ with ‘lawyer’ – frightening how coherent it is with such a simple find/replace isn’t it? 

Two questions I would like to pose to the blogosphere:

  • Why do clients continue to use such firms/lawyers? (Maybe Zane of Conference Calls Unlimited will take a stab at this one)
  • If you or your firm is working against your clients, why are you a lawyer in the first place? 


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