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.

It Never Goes Without Saying

Remember that old adage, "It goes without saying…"?  That saying shouldn’t exist inside a well-run company.  Communication — real communication, not implied communication — is the foundation for a successful business.

We human beings live for "moments."  We mark time by observing regular occasions like birthdays, anniversaries, and holidays.  While religions and cultures differ on the details, we mark the cycle of life with things like baby namings, bar mitzvahs, confirmations, first communions, weddings, and funerals. 

There’s no reason the workplace should be any different.  Think about these few examples where it could "go without saying," but where you’re so much better off creating that "moment" by:

– Publicly acknowledging a member of your team for reaching an employment anniversary (the bigger the number, the heartier the acknowledgment)

– Laying the groundwork for a new initiative by reminding the team in a meeting or email about the company’s mission and how this initiative fits into the big picture

– Marking the end of a project or a transition period with a celebration

– Meeting two weeks after the end of a project or a crisis to do a post-mortem analyzing what went well and defining lessons learned for the next time

– Publicly thanking a colleague for helping out on something — anything

– Giving an employee a quick reprimand or constructive feedback right after an incident (probably privately) instead of letting the issue fester and its details slip from short-term memory

Clear, simple communication is the cheapest and easiest way to create a fun, rewarding, accountable, and focused work environment.

Hackoff – The Blook, Part II

A few weeks back, I posted about a new blook (book delivered in single episodes via blog) called Hackoff.com – An Historic Murder Mystery Set in the Internet Bubble and Rubble, by Tom Evslin.  A few weeks into it, and I’m hooked.  It’s:

– complete and total brain candy, or mental floss as Brad calls it

– a great 2 minute break in the middle of the day (episodes are delivered once a day during the week)

– a very entertaining reminder about some of the wacky things that went on back in the Internet heyday

– a good look into some of the processes that go on behind the scenes in taking a company public

If you haven’t started the blook yet and want to give it a try, you can catch up on all of the first episodes and subscribe to the new ones here.   You can also preorder a hardcover copy of the book here on Amazon.com.

RSS Advertising

This is two-day-old news by now, but in case you missed it, we just announced than we – Return Path – are partnering with Feedburner to take RSS advertising to the next level (coverage here, here, and here).

As you probably know if you receive my feed or other ones, Feedburner has been doing some experimenting with ad units at the bottom of feeds for months now, first using Amazon and more recently Google AdSense to serve up ads.  And as you may know if you look at ads closely, neither of those services has done a great job making the ads truly relevant.  I can’t tell you, for example, the number of times I write a posting about a book, and the ad has absolutely nothing to do with books, let alone the book or author I’m writing about.  My favorite one was a posting Fred wrote called “Why a Conservative Turns Liberal,” with an ad called “Meet Conservative Singles” — probably not Fred’s intent, although it certainly brought a smile to my face.

Anyway, what we’re doing with Feedburner is very simple.  Our Customer Acquisition Solutions group sells lead generation products to hundreds of advertisers each month in the form of either email list rental or web-based lead gen based on categories of interest expressed by consumers who sign up with our Postmaster Direct service.  Feedburner has categorized a number of the 100,000+ feeds they publish as “Consumer Electronics” or “Computing and Technology,” which are two of the strongest categories we have, both in terms of consumers and in terms of advertisers.

So our salesforce is going to add “RSS” as an option for our advertisers in those categories, and we will work with Feedburner to insert demo-targeted ads into select feeds.  We and Feedburner both acknowledge this is an experiment, but we’re very optimistic about the results: the demographics should line up perfectly and provide our advertisers with a new channel as part of their existing campaigns.  I’m sure Dick or someone else at Feedburner will blog about it as well at some point, and if we learn anything  truly interesting after the first few months, we’ll let the world know!

I’m pretty close to the executive coaching world. My wife Mariquita is an extraordinary CEO coach. I’ve worked for decades with Marc Maltz from Hoola Hoop, who helped me transform everything about how I lead organizations. I’ve been friends with Jerry Colonna of Reboot fame for years (I did a fun podcast with Jerry last year called “Everyone is Scalable). I’m pretty good friends with Chad Dickerson. Bolster’s marketplace helps place CEO coaches and even has a programmatic approach to coaching and mentoring called Bolster Prime. The list goes on.

My friend Mitch, a fellow baseball coach, gave me a fun book a couple years ago that is a page-a-day called Coach: 365 Days of Inspiration for Coaches and Players, by Matthew Kelly. It’s a compilation of quotes. Some are better than others. But I just love this one from a couple weeks ago. While obviously it is in the sports context, the sentiments are the same around executive coaching.

Marc and I had one senior executive who we worked with years ago. They had significant personality and style issues that weren’t working well in our culture. They were abrupt, needlessly angry, and cultivated relationships based on fear, not based on trust. Marc and I were tearing our hair out trying to give this person feedback and coaching. Nothing was working. Then I delivered a 2×4 between his eyes. They argued with me and Marc and said that the problem was us…not them. That we were soft.

Two days went by. Then we met with them again. They came into the meeting visibly upset, shaking their head and a bit choked up. They opened the meeting by saying, “I went home and complained to my spouse about your feedback. And my spouse told me that, actually, you are right, and that I should ask my kids. My whole family feels the same way you do. More than my job is at risk — my marriage and family are at risk, too.”

Months and years later, with a ton of coaching and feedback and support from Marc and me and the rest of our executive team, this person had really turned it around. They were doing better at work. They were doing better at home. The work was long and painful and not without its bumps and backtracks. But the person made changes that were meaningful and permanent to all their relationships, not just something in the moment at work. It’s a clear case of this quote — coaching changed his life.

As I’ve said before, People are People. It doesn’t matter if you’re at home or at work. It doesn’t matter if you’re a B2C person or a B2B person. While there are some prominent examples of individuals throughout history who have very different work and home personae (John D. Rockefeller is one that comes to mind, but I’m sure there are other famous ruthless businesspeople who were empathetic and loving spouses and parents), most of us are simply humans, works in progress. We learn something in Context A, and it’s part of us when we are also in Context B.

The impact of a good coach goes way beyond how you lead your organization.

9/11’s 10th

I wasn’t yet writing this blog on 9/11 (no one was writing blogs yet), and if I had had one, I’m not sure what I would have written.  The neighborhood immediately surrounding the World Trade Center had been my home for more than seven years before the twin towers fell, and it continued to be my home for more than seven years after they fell.  That same neighborhood was Return Path‘s home for its first 18 months or so, across two different offices.  Like all Americans, the attack felt personal.  Like all New Yorkers, it was in our face.  But it hit home in a different way for those of us who lived and worked in Lower Manhattan.

For the seven years after the attacks, I stopped by Ground Zero on the morning of 9/11 to reflect and memorialize the event.  I won’t be doing that this year — between living outside the city, the kids, and the likely overwhelming crowds, it doesn’t make sense.  So this post will have to suffice as this year’s reflection on the 10th anniversary of that awful day.

My memories from that day and the weeks that followed are a little jumbled now, as memories often are.  The things I remember most vividly, both personal and professional, are:

• The smell and the smoke.  Up until the New Year, over 3 months after the attacks, a plume of smoke was rising from Ground Zero, and the air had a putrid smell of burning everything — building materials, fuel, fragments of life
• I had left the city that morning to drive to a meeting in Danbury, Connecticut at Pittney-Bowes with our then head of sales, Dave Paulus.  We both received calls on our cell phones at the same instant from Mariquita and Pam telling us to turn on the news, that a plane had crashed into the World Trade Center.  For a while, everyone assumed it was an accident.  We continued with our meeting, although it kept getting interrupted with more bad news coming in via our senior contact’s assistant, until she wheeled a TV into the conference room so we could watch for ourselves
• I couldn’t get back into the city that night, so Dave and I crashed at my Grandma Hazel’s house in Westchester.  When I finally did get home, Mariquita and I met up and stayed with our friends Christine and Andrew on the upper west side and listened all night to the fighter planes cruising up and down the Hudson River, sentries on patrol
• When we finally could go back to our apartment, we had to go on foot from Canal Street south, and we had to show proof of residence (in our case, a copy of our lease) to get past the military guards.  With no traffic allowed and no subways running in Lower Manhattan for a week or two, the streets had an eerie emptiness about them.  The prevalence of national guardsmen and NYPD patrols toting machine guns made it feel like a war zone
• At work, where the Internet 1.0 meltdown was still in process, we were in the middle of negotiating a life-saving financing and acquisition of Veripost with Eric Kirby and George.  We hit the pause button on everything, but we picked back up and dusted ourselves off within a day and got those deals done within a few weeks and saved the company
• We had one junior employee in our New York office who got into his car on the afternoon of 9/11, drove to New Hampshire, and never contacted us again.  Just completely blew a fuse and dropped out.  It wasn’t until we tracked down his parents a few days later that we even knew he was safe and sound
• I was fortunate not to lose anyone close in the attacks, but my friend Morten lost over a dozen close friends who were all traders from his town in New Jersey.  He attended every single funeral.  How he got through that (and how others got through their many losses) remains beyond my comprehension, even today

The only thing I have really blogged about over the years related to 9/11 was my post Morning in Tribeca in 2004 when the skeleton of WTC7, the first rebuilt building, was going up.  Now that the Freedom Tower is rising, it finally feels like the Ground Zero site has great forward momentum and will in fact be fully renewed in a few years once the bulk of this construction is done and the tenants have moved in.  That will be a great day for New York, and for America.

A Study In Contrast

We just visited India for a great two weeks of vacation (with one quick business meeting thrown in for good measure).  The most striking part of the country was its seamless transition between  old and new.  Bumpy dirt roads and new, gleaming highways give way to each other at random intervals.  Streets in many cities and most smaller towns are filled with trucks fighting for space with cows, oxen, camels, elephants, dogs, and donkeys.  Ads for cell phones and new Internet cafes are mixed in with storefronts prominently advertising land line phones, since almost no one in outlying areas can afford or has electricity to power an in-home phone.

Anyway, if you’re up for a quick travelog on our personal web site, you’re welcome to have a break and visit India with us.

The Tension That Will Come With the Future of Work

A lot has been written about the Work From Anywhere life that knowledge workers are leading right now due to the pandemic, and what will come next.  Fred has a great post on it, and I’m curious to see how his and Joanne’s “Home Office Away From Home” space called FrameWork does when it opens.  In that post, he references a few other posts and articles worth reading:

• Imagine Your Flexible Office Work Future – Anne Helen Petersen
• We’re Never Going Back – Packy McCormick
• The Future of Offices When Workers Have Choice – Dror Poleg

Instead of entering the debate about what the future will look like, which no one really knows other than to say “not like the past,” I want to focus on a tension I’ve been mulling over lately, and that is the tension between a company’s leaders and its employees.  You could also call it a tension between extroverts and introverts.  And in this regard, Packy McCormick is both right and wrong about the debate:  right in the sense that employees will make the decision, not companies; wrong in the sense that the best employees “are not going to work for companies that make them shave, get dressed, hop into a car or a crowded subway, and sit at a desk in an office five days a week with their headphones on trying to avoid distractions and get work done.”  That’s a blanket statement that, as with most blanket statements, misses an incredibly important point.

That some people like, want to, need to, or benefit from working in offices more often than not.

That those people are some of the most talented, creative, and high potential people in an organization.

And that those people are frequently the ones with the least “voice” in an organization — new employees, younger workers, introverts, and people from underrepresented groups.

It will be really easy for senior people who, in many cases, have longer commutes and kids they are now accustomed to seeing a lot more, not to mention really nice and private home offices, to default to working from home.  In many cases, they’ve already done more of that than most employees, well, because they can.  But the problem is that those people are perfectly fine working from home.  Work and decisions come to them.  Their career trajectories are pretty set.  They will seek out anyone in the organization to ask them any question, any time.

But think about the topic from the perspective of an entry level account coordinator, an associate product manager, a graphic designer in marketing, a financial analyst in the FP&A group, or an AR specialist in accounting. .  Less exposure to decision makers can’t possibly help this.  If you’re one of those people, here are the things you miss out on when there’s no office:

• You don’t get to participate in or overhear interesting conversations in the break/lunch room or at the water cooler about something going on in the company that you’re not working on.  This reduces your ability to learn in unstructured ways at work or get thoroughly onboarded into a new company
• You don’t get to see who comes and goes from the office or different meeting rooms.  This may sound silly, but watching a business in, seeing who is in a glass-walled conference room or what slides are up on the wall, helps employees stimulate good ideas about their day to day work.  This limits your ability to connect the dots and better understand the big picture at work 
• You don’t get to have a casual conversation with your department head or CEO in the elevator or hallway or a conference room between meetings.  That “skip level” leader is much less likely to know who you are or what you do.  This can make it harder for you, the next time you have an idea you want to share or feedback you want to give, to approach a leader.  It also makes it a little tougher for you the next time you’re in line for some kind of promotion or development opportunity

Of course all employees CAN in theory make themselves known, can learn, can seek out others in the organization, and can try to re-create hallway serendipity from the comfort of their own Zoom screens.  It just doesn’t come naturally to most; practically speaking for many, it’s impossible; and it’s particularly hard for younger or quieter team members.  There’s a ton of research about how women in particular aren’t as comfortable advocating for themselves when it comes time to ask for a raise or a promotion.  If you’re the CEO of a 100 person organization, you might be inclined to chat with the new entry level AR person at the coffee machine for a few minutes; you’re unlikely to be excited about a 30-minute Zoom with her.  

(By the way, this whole construct may be different for engineering, where engineers are likely more comfortable with remote work AND aren’t held back in their career development as a result.)

I’ll close this post with an anecdote.  As part of our work at Bolster, I was doing something called an Executive Team Scalability Assessment with the CEO of a $75mm SaaS company a month or so ago.  When we were doing a review of how strongly each of his leaders role modeled company values, he paused when he got to one leader and said, “I honestly don’t know.  That person has only been here 10 months, but don’t worry, that’s just because of the pandemic.  I haven’t seen them in action.”  10 months!  People will discover at some point that it was much easier to “lift and shift” an existing organization to the cloud in year 1 of the pandemic than it will be to sustain or build a culture with a lot of new employees in year 2 or 3 of remote-first work.

CEOs who care about their culture, their people, inclusion and belonging, and their people’s professional development will have to really re-think how things work if they are going to steer their companies towards remote-only policies, or even remote-first employees, and still be inclusive workplaces.  That doesn’t mean it can’t be done.  But gravitating to a remote-only way of life, even if it’s personally enticing or if some talented and vocal employees demand it, may not be in the best interest of their overall company and employee population.

VC Wisdom du Jour

Two good ones today:

1. Brad on what makes a great Board meeting (hint: it’s not going through the materials you send out ahead of time).

2. Jeff Nolan/Dispatches on 10 questions to ask a VC.  Remember, when you’re raising money, you must do active due diligence on your prospective investors, not just the other way around.  These questions are a good guide.

A Lighter, Yet Darker, Note

I’ve been meaning to post about this for some time now since my colleague Tami Forman introduced me to this company.  It’s a riot.

You know all those well-intentioned, but slightly cheesy motivational posters you see in places like dentists’ offices?  The kind that talk about “Perseverence” and “Commitment” and “Dare to Dream” and have some beautiful or unique, usually nature-centric image to go with them and their tag line?

For the sarcastic among us, you must visit Despair, Inc.’s web site, in particular any of the “Individual Designs” sections featured on the left side navigation.  The posters are brilliant spoofs on the above, with such gems as “Agony” and “Strife” and “Despair” (whose tag line is “It’s always darkest just before it goes pitch black”).  E.L. Kersten is one funny, albeit strange dude.

Worth a look, and everything is for sale there, too, in case you need to have these posted in a back room somewhere.

How to Negotiate a Term Sheet with a VC, Part III

Brad has kicked off his blogging year with a a good new post on VC valuations.  It’s along the lines of the ones he, Fred, and I have written over the past six months and has the wonderful line in it:

If you are negotiating a deal and an investor is digging his or her feet in on a provision that doesn’t affect the economics or control, they are probably blowing smoke, rather than elucidating substance.

Happy New Year!