The Evils of Patent Litigation

There have been a lot of posts over the years on the blogs I read about patents and how they are problematic.  I know Brad has done a bunch, including this one. I wrote one once about a dumb patent issued in the email space, which is here. 

And of course no listing of great patent posts would be complete without a nod to my colleague Whitney McNamara, who I believe coined the term "ass patent" starting with this post.  In fact, Whit has a whole category of posts on his blog about ass patents.  

But one of the most thoughtful, accurate, and proscriptive ones I've read is what Fred wrote a couple days ago.

And I should know.  We are the company that he refers to who spent about half a million dollars successfully defending ourselves (for now – who knows what appeals might bring) against a baseless suit by a patent troll.  For the record, we did try to settle and were presented with a multi-million dollar option only.  I have been advised by our lawyer not to write about this case because there are elements of it that are still pending, but I don't care.  I'm irritated enough about it that I want to get this out there while it's still fresh in my mind.  And I'm not going to use names here or say anything I wouldn't say publicly in any other forum.

I've thought about this problem a lot for the last several years, as you might imagine.  Fred's two patent reforms — that plaintiffs who lose a suit have to pay defendant legal fees, and that patents should have a "use it or lose it" clause like trademarks — would totally do the job. 

I'm a fan of the "losing plaintiff pays" clause, but one challenge is that it would discourage a certain percentage of legitimate suits and claims, particularly from small inventors, out of fear that high-priced defense counsel will not only win on some technicality BUT will then cost a disproportionate amount of money since the risk is completely transferred to the other side.  This is probably a challenge that's worth living with, but it has the potential to be a "lesser of two evils" solution.

I love the "use it or lose it" one in particular, because it would not just force companies to use the invention, but it would also more clearly articulate what the patent is.  In many cases with business process patents, it's too unclear what the patent actually covers and whether or not other inventions are in conflict with it.  Too much is left up to wording interpretations.  That would not be the case if the invention was actually in use!

Here's another problem with the system that I think requires a third simple solution.  I'll call it The BigCo problem, and it happened to us in our case.  The BigCo problem is that the same troll who sued us also sued two other companies, one of them a Fortune 100 technology company, concurrently and similarly baselessly over the same patents.  But here was the problem:  the troll suing us wouldn't consider a modest settlement with us, even knowing that our resources were limited, because doing so would make it harder for them to pursue their case against BigCo and get a Big Settlement.

So here's my proposed third simple solution:  a defendant-initiated settlement should be confidential and not influence the outcome of related pending litigation.  Why should little guys have to suck up costs because BigCo has deep pockets?

I hope last year's ruling around business process patents (creating a more narrow definition of what is patentable) helps with patent trolls, one of the real scourges of the Internet — possibly even a new member of the Internet Axis of Evil — but it won't solve the problem the way Fred's two suggestions will.

UPDATE:  Great comment from Mike Masnick: 

another very very very useful solution to the problems you face would be (finally) allowing an "independent invention" defense to patents. The problem is that almost no patent infringement lawsuits are actually due to someone "copying" someone else's product or patent. The vast majority are due to "independent invention." I think two things should happen: 1. If sued, and you can show an independent invention defense the case is over. And… 2. If you can show that independent invention defense and it works, the patent itself should be invalidated. This is because patents are only supposed to be granted for inventions that are new and non-obvious to those skilled in the art. If those skilled in the art are coming up with the same concept independently, I'd say it fails the non-obvious to those skilled in the art scenario. Do that and much of the patent problem goes away, while still "protecting" the scenario where some company just flat out copies an invention.

Book Short: Hire Great

It’s certainly not hiring season for most of America The World The Universe, but we are still making some limited hires here at Return Path, and I thought – what better time to retool our interviewing and hiring process than in a relatively slow period?

So I just read Who: The A Method for Hiring, by Geoff Smart and Randy Street.  It’s a bit of a sequel, or I guess more of a successor book, to the best book I’ve ever read about hiring and interviewing, Topgrading, by Geoff Smart and his father Brad (post, link to buy).  This one wasn’t bad, and it was much shorter and crisper.

I’m not sure I believe the oft-quoted stat that a bad hire costs a company $1.5mm.  Maybe sometimes (say, if the person embezzles $1.4mm), but certainly the point that bad hires are a nightmare for an organization in any number of ways is well taken.   The book does a good job of explaining the linkage from strategy and execution straight to recruiting, with good examples and tips for how to create the linkage.  That alone makes it a worthwhile read.

The method they describe may seem like common sense, but I bet 95 out of 100 companies don’t come close.  We are very good and quite deliberate about the hiring process and have a good success average, but even we have a lot of room to improve.  The book is divided into four main sections:

• Scorecard: creating job descriptions that are linked to company strategy and that are outcome and competency based, not task based
• Sourcing: going beyond internal and external recruiters to make your entire company a talent seeker and magnet
• Selection: the meat of the book – good detail on how to conduct lots of different kinds of interviews, from screening to topgrading (a must) to focused to reference
• Sell:  how to reel ’em in once they’re on the line (for us anyway, the least useful section as we rarely lose a candidate once we have an offer out)

One of the most poignant examples in the book centered around hiring someone who had been fired from his previous job.  The hiring method in the book uncovered it (that’s hard enough to do sometimes) but then dug deep enough to understand the context and reasons why, and, matching up what they then knew about the candidate to their required competencies and outcomes for the job, decided the firing wasn’t a show-stopper and went ahead and made the hire.

I’d think of these two books the way I think about the Covey books.  If you have never read The 7 Habits of Highly Effective People, you could just get away with reading Stephen Covey’s newer book, The 8th Habit:  From Effectiveness to Greatness, though the original is much richer.

Less is More

I have a challenge for the email marketing community in 2009. Let’s make this the Year of “Less is More.”

Marketers are turning to email more and more in this down economy. There’s no question about that. My great fear is that just means they’re sending more and more and more emails out without being smart about their programs. That will have positive short term effects and drive revenues, but long term it will have a negative long term impact on inboxes everywhere. And these same marketers will find their short term positive results turning into poor deliverability faster than you can say “complaint rate spike.”

I heard a wonderful case study this week from Chip House at ExactTarget at the EEC Conference. One of his clients, a non-profit, took the bold and yet painful step of permissioning an opt-out list. Yikes. That word sends shivers down the spine of marketers everywhere. What are you saying? You want me to reduce the size of my prime asset? The results of a campaign done before and after the permission pass are very telling and should be a lesson to all of us. The list shrank from 34,000 to 4,500. Bounce rate decreased from 9% to under 1%. Spam complaints went from 27 to 0 (ZERO). Open rate spiked from 25% to 53%. Click-through from 7% to 22%. And clicks? 509 before the permissioning, 510 after. This client generated the same results, with better metrics along the way, by sending out 87% LESS EMAIL. Why? Because they only sent it to people who cared to receive it.

This is a great time for email. But marketers will kill the channel by just dumping more and more and more volume into it. Let’s all make Less Is More our mantra for the year together. Is everyone in? Repeat after me…Less Is More! Less Is More!

Please, Let There Be Another Explanation

One of the things I was most excited about with an Obama presidency was that it finally seemed as if we had a real leader in the hot seat.  Someone who might actually be able to run an effective government instead of a bureaucracy paralyzed by partisanship.  I still have this hope.

But I also hope what we’re seeing around the stimulus bill is not what we’re in for the next four years.  What I’m seeing is a complete absence of leadership around the problem.  Seems to me, taking lessons from the corporate world, that Obama should have done two things that would have gotten the program passed in a bipartisan way much more quickly:

1. Build true consensus ahead of time and make the congressional leaders do the sales job in a bipartisan way.  It’s great that Obama went up to the Republican caucus to talk to them and get their point of view, but shouldn’t he have gathered the top 2-3 leaders of each party and each house of congress in his office (or in theirs) to whiteboard this whole thing out ahead of time, so that those people could be bought in and then go on to convince others?  Few successful major corporate initiatives are launched without a careful eye to how all major stakeholders will react so that the majority will be on board.

2. Link the plan to the election in an obvious way.  Obama can credibly claim that the election was a decisive call for change.  He can also credibly claim a small number of priority items that clearly emerged as points of change — reducing/eliminating our dependence on foreign oil, vastly expanded access to health care, reducing taxes on the middle class, and fixing the problem of the revolving door between lobbyists and government as the relevant ones here (there are others around foreign policy and the wars, of course).  Why isn’t the stimulus package pumping money in the economy to the specific ends that were articulated during the campaign, at least for 60-80% of the money, anyway? Seems to me like that’s the best way not just to sell the program to Congress and the American people, but to actually have it stand for something other than 535 people’s pet local projects.  Again, in corporate America, once everyone has agreed on a strategy and goals, it’s much easier to define a path forward around how to execute the details.

I hope something else is going on here — perhaps Obama just wants to make Congress look like a bunch of idiots, so they self destruct and ultimately yield more power to the White House — but my fear is that our new leader needs some lessons in leadership.

Desperately Seeking an Owner for “Other”

A couple weeks ago in Living with Less…For Good, I mentioned that we’re on a crusade against extraneous expenses at Return Path these days, as is pretty much the rest of the world.

After a close review of our most recent month’s financials, we have a new target:  “Other.”  A relatively inconspicuous line on the income statement, this line, which different companies call different things such as “Other G&A” and “General Office,” is inherently problematic NOT because it inherently encompasses a huge amount of expenses, although it might, but rather because it inherently doesn’t have an owner and rarely has a budget.

As we dug into the gory details of “Other” our accounting system (btw – we LOVE Intacct – great web-based application for better information flow and transparency), our Exec team came to this realization the other day.  It’s not that we buy too many pens, per se.  It’s that the absence of someone being in charge of that line item means that no one manages it to a budget – or even just manages it to some kind of reasonability test.  What we found in the details was that there are definitely more areas we can do better at managing expenses here.  No individual item is going to change our income statement profile, but little things do add up to big things in the end.

Whether it’s duplication of expenses, too much FedEx, forgotten recurring items, or the storage locker that we don’t even know what’s in any more, we’re spotting little ways to save money left and right.

For us going forward, we are going to put someone in charge of this line item, develop a budget, and without forcing big-company-like procurement policies on the rest of the organization, manage it down!

Twitter

A small administrative note…I changed my Twitter name to mattblumberg from its more obscure predecessor.  Not sure I'll tweet a lot more, but I may give it a try.

Book Short: The Joys of Slinging Hash

Patrick Lencioni’s The Three Signs of a Miserable Job is a good read, as were his last two books, The Five Temptations of a CEO (post, link), and The Four Obsessions of an Extraordinary Executive (post, link).  They’re all super short, easy reads (four express train rides on Metro North got the job done), with a single simple message and great examples.  This one is probably my second favorite so far.

This book, which has a downright dreary title, is great.  It points to and proposes a solution to a problem I’ve thought about for a long time, which is how do you create meaning for people in their day to day work when they’re not doing something intrinsically meaningful like curing a disease or feeding the homeless.  His recipe for success is simple:

– Get people to articulate the relevance in their jobs…the meaning they derive out of their work…an understanding of the people whose lives are made better, even in small ways, by what they do every day

– Get people to measure what they do (duh, management 101), IN RELATION TO THE RELEVANCE learnings from the last point (ahh, that’s an interesting twist)

– Get to know your people as people

All of these are things you’d generally read in good books on management, but this book ties them together artfully, simply, and in a good story about a roadside pizza restaurant.  It also stands in stark contrast to the book I reviewed and panned a few days ago by Jerry Porras in that it is nothing but examples from non-celebrities, non-success stories — ordinary people doing ordinary jobs.

Brad has blogged glowingly about Death by Meeting, so I’ll probably make that my next Lencioni read next month, with two more to go after that.

Book Short:  Long on Platitudes, Short on Value

I approached Success Built to Last:  Creating a Life That Matters, by Jerry Porras, Stewart Emery, and Mark Thompson, with great enthusiasm, as Porras was co-author, along with Jim Collins, of two of my favorite business books of all time, Built to Last and Good to Great. I was very disappointed in the end.  This wasn’t really a business book, despite its marketing and hype.  At best, it was a poor attempt at doing what Malcolm Gladwell just did in Outliers in attempting to zero in on the innate, learned, and environmental qualities that drive success.

The book had some reasonably good points to make and definitely some great quotes, but it was very rambly and hard to follow.  Its attempt at creating an overall framework like the one used in Built to Last and Good to Great just plain didn’t work, as two of the three legs of the stool were almost incomprehensible, or to put it more charitably, didn’t hang together well.

This isn’t a terrible book to have on your shelf, and it might be good to skim, but remember that “skim” is only one letter away from “skip.”

Symbolism in Action

A couple months ago, I wrote about how the idiots who run the Big 3 US automakers in Detroit don’t have a clue about symbolism — the art or the science of it.  Yesterday, I wrote about how I think the non-headcount cuts to G&A that we’re making at Return Path during these challenging economic times will be positive for the company in the long run.  The two topics are closely related.

Obama announces on Day 1 that White House staffers who make more than $100k won’t be getting a pay raise this year.  Presumably all of those people just started their jobs on January 20 and wouldn’t be eligible for a raise until 2010.  Return Path cuts pilates classes in its Colorado office — an expense that must cost around $3,000/year.  Practically speaking, it won’t make a difference to our budget one way or another.  Microsoft lays off 1,400 people — a real number, certainly for those families — but that’s the equivalent of Return Path laying off 2 people. 

Sometimes the symbolic is just that.  It is something designed to send a signal to others, and not much more.  You could argue that all three examples above mean nothing in reality, so they were just symbolic.  A waste of time.

You can also make the argument that sometimes, when done right, symbolism turns into action as it motivates or serves as a catalyst for other changes.  Obama’s cuts may be fictitious, but they set the tone for broader action across a 2mm person bureaucracy.  Pilates in the office?  Feels too excessive these days, even for a company obsessed with its employees and their well being, in an era where we’re cutting back other things that are more serious.  Microsoft has gobs of cash and doesn’t need to worry about its future, but it wants to tell the other 99% of its employee population that it’s time to buckle down and fly straight.  And they will.

Anyone who thinks the synbolic doesn’t influence the practical should think again.  Or just talk to Caroline Kennedy about the impact of her admission that she hadn’t voted in years on her political ambitions.

Living With Less…For Good?

Like all companies, Return Path is battening down the hatches a bit on expenses these days.  Our business is very strong and still growing nicely, but in this environment, the specter of disaster looms large, so there's no reason not to be more cautious and more profitable.

We weren't an extravagant company before this, and we never have been. But there is almost always room to save. Less travel, leaner budgets for office cafeterias, no more pilates classes in the Colorado office.  We've been very clear internally that our three priorities are protecting everyone's job, everyone's salary, and everyone's health benefits.  Hopefully things continue to go well and those can remain sacrosanct.

We are now a few months into our various cost savings plans, and it's great to see the results on the income statement and balance sheet.  More than that, it's great to see how everyone in the company is rallying around the common cause and looking for other ways to save money as well.  We've made it chic to be cheap.  And so far, there's no impact on the business. 

It will be interesting to me to see what happens on the far end of this economic badness.  It's often said the companies that make it through times like these emerge stronger on the other side, and I think I now understand why:  it's clear to me that some of the changes will work long term and some will only work short term, which means that we'll learn during this period that we can live with less. 

That doesn't mean we were profligate in the past; but it does mean that I think we are going to retrain ourselves.  We don't have to send 10 people to a big trade show to have an impact and drive the business forward.  We don't have to be the vendor who picks up the tab at the end of the night.  We don't need to pay for half the company to have cell phones (a very 1999 policy) to retain top talent.  I bet we will learn those things — and a bunch of others to come — in the next few months.

Angry, Defiant, and Replete with Poor Grammar

I didn’t see Bush’s farewell address on TV on Thursday, but Mariquita and I did see his press conference on Monday.  It was exactly what you’d expect it to be and quite frankly just like the last eight years:  angry, defiant, and replete with poor grammar.

I’ve said repeatedly that I think Bush has destroyed the Republican party and will go down in history as one of the worst presidents this country has ever had, if not the worst.  It’s not surprising that his tone at the end is as the title of this post describes.  But it is a shame.  His whole administration is a shame.  The really sad part is that it didn’t have to be.  People make mistakes — even really bad ones.  And they can recover from them and go on to do great things in life if two conditions exist:

1. They solicit feedback on their performance, and

2. The internalize and act on that feedback

Bush not only didn’t “get” these two points; he seemed to revel in them.  “Not paying attention to polls” and “At least you know where I stand” seemed to him to be pillars of strength as opposed to pillars of ignorance and complete and total lack of intellectual curiosity.  You don’t have to try to win a popularity contest to find out when something is going wrong on your watch.  And you can be bold, admit a failure, learn from it, and move on instead of just digging yourself deeper and deeper into the same hole.

I read a great article in The Economist last night that summarized its current view of Bush’s legacy, and in fact it noted a bunch of areas in which Bush appeared to learn from his mistakes, though he probably wouldn’t phrase it that way.  The fact that his second administration did do more to reach out to key allies in Germany and France is one example.  And to the article’s credit, it even noted some of Bush’s accomplishments, or at least the areas in which his thinking was right — those those are just dwarfed in the end by his failings.  

At any rate, I’m delighted he’ll be leaving office on Tuesday.  Inauguration day is one of my favorite days in America, and I look forward with optimism to the incoming administration as I always do, regardless of how I voted.

But as for Bush, I think I’d rather have the pilot of that USAir flight as my commander in chief.  Now there’s a guy (I don’t even know his name, and I probably never will) who had a quick grasp of a difficult situation and produced a brilliant and elegant solution in short order!