Silly, Silly Patent Nonsense

Some news floated around the email marketing world yesterday that is potentially disturbing and destructive but highlights some lunacy at the same time.  I hope I’m getting enough of the details right here (and quite frankly that isn’t a joke, which it feels like).

Tom DiStefano of Boca-based PerfectWeb Technologies is suing direct marketing behemoth InfoUSA for patent infringement of a business process patent for bulk email distribution that he received in 2003.

I will first issue my disclaimers that I’m not a patent lawyer (nor do I even play one on TV) and that I have only quickly read both the legal complaint and the patent.  But my general take on this is that it’s more silly than anything else — but has the potential to be destructive at the same time.

Silly reason #1.  I’d like to go patent the process of blowing my nose with facial tissue predominantly using my left hand after a sneeze — will you pay me a royalty every time you do that, please?  That’s a short way of saying that I am increasingly finding that the patent system is deeply flawed, or at least very ill-suited to the way technology and Internet innovation work today.  For centuries, patents have been put in place to provide inventors adequate incentive to invest in innovation.  That made sense in a world where innovation was expensive.  It took a long time and a lot of capital to invent, say, the cotton gin or the steam engine.  It takes a long time and a lot of capital to invent a new life-saving drug.  But Internet-oriented business process patents are just silly.  It can take a guy with a piece of paper a few minutes to sketch out a business process for some niche part of the Internet ecosystem.  No real time, no real capital.  And worst of all, it’s generally easy to “design around.”  Disclaimers and all, this seems to be just such a patent.

Silly reason #2.  The patent was issued in 2003.  Really?  I’m not sure when the patent holder claims he invented the bulk email distribution process, but unless it was in the early 90s before the likes of Mercury Mail, First Virtual, Email Publishing, etc., then it’s highly likely to be “non-novel,” “obvious,” and conflicting with lots of “prior art.”

Silly reason #3.  Why wait four years to prosecute a patent that the inventor believes has been violated so obviously by so many (hundreds, maybe thousands) companies for so many years?  I don’t quite get that.

I’m not exactly seeing the David vs. Goliath here.

So here we go.  It will likely take months and millions before this thing gets resolved.  If our legal system doesn’t come through as it should, or worse, if InfoUSA punts and settles, this is going to cause big problems for many, many companies in the industry.

I hope our friends at InfoUSA are happy to dig in and fight to have the patent invalidated, although that’s expensive and time consuming.  And assuming that the patent holder is likely to go on a rampage of legal complaints against every other player in the industry — someone should tell Vin Gupta that we can all band together to fight this silliness.  We’re happy to help here at Return Path.

Help Me, Help You

I’m conducting a really short reader survey about OnlyOnce.  There are about 10 questions, half about the blog, and half about reader demographics.  Please take 2 minutes to complete it for me so I know how I’m doing!  All responses are anonymous, as you’ll see.  Click here to go to the survey.

How Much Blogging is Too Much Blogging?

After being completely (and blissfully, I might add) offline for 11 days, I have returned to find 247 new postings in my Newsgator folder.  Only a short year ago, I would have come back from vacation to too many emails…now I get to sift through too many emails AND too many blog postings.

On the bright side, I have at least these two images of the Barolo wine country and the Amalfi coast solidly etched in my brain to ease re-entry to work. Anyone interested in a brief travelog of the Italian countryside, click here and follow the top link.

Counter Cliche:  I Know When I See One, Too

I haven’t written a counter to one of Fred’s VC Cliche’s of the Week for a while now, but today’s was too good to resist.  While I haven’t (and most entrepreneurs haven’t) worked with 200 VCs, I have seen, heard about, been one (sort of), and worked with enough of them to know enough to comment as follows:  as is the case with Fred and entrepreneurs, I’m not sure I can define what makes a great VC in one phrase, but I know one when I see one, and here are some of the characteristics they exhibit:

– Major pattern recognition — "I’ve seen this movie before, and I know how it ends…";
– Deep understanding of the market and/or customer set to add strategic value;
– Fundamental desire to be a product manager or marketing manager of your product, but also —
– Ability to stay out of the weeds with day-to-day details when the Board meeting ends;
– Always ready with a story or bon mot about other crazy investors or even crazier entrepreneurs to make you feel better about your own life;
– Complete transparency about the motives of his/her fellow GPs and LPs and ability/appetite for follow-on financings (and needless to say, no/limited blocking of transactions that are clearly in the company’s best interests but might run counter to his/her firm’s own short-term interests);
– Willingness to jump into a debate with the strongest of convictions, yet without 100% of the facts, since 100% of the facts are never available;
– Equal willingness to admit being wrong if a clear and compelling argument comes forth; and of course the most critical —
– No fear of yielding to Management when Management knows best!
– Note — note included — major rolodex (a nice to have, but not required)

The other part of the counter cliche is that I’m sure there are some great entrepreneurs who only exhibit a few of Fred’s list of traits…much as I’m sure there are some great VCs who only exhibit a few of my list above.

Agile Development

Sometime last year, our engineering and product teams embraced the Agile Software Development framework.  Without going into too much detail (here’s the Wikipedia entry for those who want it), the concept of Agile Development is to run software development in small pieces with a focus on more communication between product and development teams resulting in collaborative requirements development.  This leads to a “release early and often” environment where there are continual improvements.  For us, we group development projects now into a “release” that consists of a series of usually six, two-week “iterations.”

The release planning and iteration planning meetings are reasonably long meetings that involve the major stakeholders, product management and engineering.  The process also includes a very short, 10-minute Daily Stand-Up meeting with everyone on the team to review progress and identify roadblocks to completing the two-week iteration.  Requirements are not heavily documented and discussed more or less on the spot during the iteration meetings.  Because there’s a major pull-up every two weeks and a minor one every day, it’s easy to be light on requirements and for product management to constantly be in the loop with engineering to see progress, test functionality, and make mid-course corrections.

This methodology isn’t for everyone, but it’s particularly well suited to the kind of work we do at Return Path — small team, multiple internal and external stakeholders, very dynamic market, and web services as opposed to packaged software.

Our efforts have been bolstered by some limited consulting and more important, a fantastic web-based workflow management tool geared towards Agile Development run by a company called Rally Development in Boulder.  Think of it as Salesforce.com for your engineering and product team.

We’ve had great success with this methodology to date.  Engineering productivity is way up, product management visibility and input into development is way up, the level of friction/noise between product management and engineering is way down, and we have a much tighter grip on our development milestones than we ever have in the past.

Agile and Rally have worked so well for us, in fact, that we’re starting to extend the concept to other parts of our business, which I’ll write about separately.

Email and Business Development: Two Great Tastes…

Interestingly, Chris Baggott offers compelling evidence for the opposite view he intended in his recent posting claiming email is not an acquisition tool.  I respect Chris as a thought leader in the email marketing services industry and am a fan of what he and his colleagues have done in building Exact Target, but I think he’s dead wrong on this one.

Email is a phenomenal customer retention tool, no question about it.  I totally agree with the claim that website owners should never let a prospect escape from their website without signing up for an email program.  It’s very true that spending money on website traffic can go to waste if a browser never buys or returns — or worse, if you pay the same search keyword fee time and time again to reach the same browser. 

However, his own post starts to lay out the reasons why email is, in fact, also really good for acquisition marketing:  because we all still love it, we spend a lot of time reading and responding to it, and we value the information it brings to us.  In short , it’s got all the strongest attributes of a great acquisition medium: reach, frequency and, most importantly, trust.  Isn’t that what advertisers look for when they are trying to figure out whether to spend their acquisition dollars in print, radio, TV, outdoor, or direct response vehicles?

In fact, more consumers and B2B professionals spend more time in their inboxes than they do consuming any other form of media — digital or not.  So, if you want to reach your target, you need to be using acquisition email.  And definitely never let a prospect come to your web site without giving you his or her email address for future contact!

Just because email is so extraordinary a retention and customer relationship tool, doesn’t exclude the reality that it also works really well to reach new prospects.  Smart marketers use email for both.

Back to Business?

Today is the day every year that everyone keeps saying, "well, it’s back to school time."  Ignore for a moment the fact that half of the schools I hear about now start in the middle of August…it’s interesting to see how some things in the business world really slow down in the summer, especially in August as well as the school system.

People really disappear for vacations, short and long.  Even if we aren’t like our European counterparts who really have it figured out and can virtually shut down in August, it’s just harder to get things done.  People might not all be out at the same time or for as long, but having one or two key people out any given week just makes it harder to make progress on things.

So, it’s time to get Back to Business.  September and October are the busiest months of the year in our industry with a packed conference schedule, planning cycles for next year, and the ever-present "holiday season" for our retail clients, so it should be a crazy fall!

Starbucks, Starbucks, Everywhere, Part II

In 2004, I blogged about Starbucks’ implausible Forbidden City location (post includes picture) in the heart of one of China’s most prominent national monuments.

Today, under pressure from the Chinese government, Starbucks announced that they’re closing the location, reflecting “Chinese sensitivity about cultural symbols and unease over an influx of foreign pop culture,” according to a very short blurb about this in today’s Wall Street Journal.

It must be indescribably different to live in a society that’s so tightly controlled.

Closer to the Front Lines, II

Last year, I wrote about our sabbatical policy and how I had spent six weeks filling in for George when he was out.  I just finished up filling in for Jack (our COO/CFO) while he was out on his.  Although for a variety of reasons I wasn’t as deeply engaged with Jack’s team as I was last year with George’s, I did find some great benefits to working more directly with them.

In addition to the ones I wrote about last year, another discovery, or rather, reminder, that I got this time around was that the bigger the company gets and the more specialized skill sets become, there are an increasing number of jobs that I couldn’t step in and do in a pinch.  I used to feel this way about all non-technical jobs in the early years of the company, but not so much any more. 

Anyway, it’s always a busy time doing two jobs, and probably both jobs suffer a bit in the short term.  But it’s a great experience overall for me as a leader.  Anita’s sabbatical will also hit in 2010 — is everyone ready for me to run sales for half a quarter?

Sophisticated Negotiation Technique

Brad and our co-tenants in Colorado, Still Secure, have already documented this — including a dedication from Still Secure (thanks, guys – you took the words right out of my mouth).  But still, the story must be recorded here for posterity as well, if for no other reason than how absurd it was.

We share a lease in Colorado with Still Secure (the lease used to be Brad’s/Mobius’s), and the lease ends this fall.  Both we and Still Secure have grown to the point where we’re bursting at the seams, so someone is going to have to move out.  After months of polite wrangling, it was clear there was no easy solution.  Sometimes, win-win just doesn’t exist.

So we did what any civilized bunch of people would do.  We flipped a coin.  It just seemed more entertaining in the end than rock-paper-scissors.  And unfortunately, we came up short.  But we had pre-negotiated a buy-out with Still Secure whereby the party who got to keep the space paid $X to the other party to cover moving expenses, furniture, and presumably pain and suffering, so now we have a full piggy bank to go procure and set up new space for ourselves.

Harvard Program on Negotiation — do I see a case study in the works?

Curbing My Enthusiasm

For the first time since I started blogging over four years ago, I have recently run into several examples in a short period of time where I’d love to blog about something happening in the business, and I think it would make for a great blog posting, but I can’t do it.  Why can’t I?  Lots of different reasons:

– Don’t want to telegraph strategy to the competition

– Don’t want to compromise an employee (current or former)

– Worried about downstream legal ramifications

There are other reasons as well, but these are the main three.  I love transparency as much as the next person (and more than most), but these scenarios have to trump transparency in my position as a CEO.  Hopefully the passage of time and the release of news will mean that I can still do the blog postings, but as more of a post mortem than something in the moment. 

But I hate curbing my own enthusiasm.  It’s a definite frustration in this case, and a new one.