Risk Management – Lawyer Explains Basics in Protecting Intellectual Property

 

Each hour, it seems, news headlines are published about patents. Normally, patent headlines are a sign of business friction as the case with Xerox vs. Google and Yahoo, and Apple vs. Nokia.

So it’s extraordinary for adversaries such as Google and Yahoo to be on the same side. Xerox filed a patent lawsuit naming the two search giants alleging they are violating automatic query and information patents, according to InformationWeek.

It’s also rare when you can spot a positive news headline regarding patents. Note this PC World headline:  “Microsoft, Amazon Strike Patent Licensing Deal.”  This means Microsoft and Amazon.com will each tap into the other company’s technology. As part of the arrangement, Microsoft will receive payments from Amazon.com.

Entrepreneurs are well-advised to consider ways to avoid legal entanglements over their inventions and intellectual property.

Here’s an example: Apple vs. Nokia. In this case, the U.S. International Trade Commission is investigating.

Sounds serious, doesn’t it – it’s time to turn to a noted patent attorney for an explanation of this case.

“It looks like Apple and Nokia are using their patent portfolios to obtain some leverage from each other,” says Adam L.K. Philipp, founder of the Axios Law firm (www.axioslaw.com).  “Generally, two firms of this size may posture, but then settle, especially as their respective patent portfolios are so large.”

He speaks from experience. He says his current clients  include:  “RealNetworks, Wetpaint, PhotoBucket (formerly Ontela), SEOmoz, Appature, Winshuttle, Kashless, HealthUnity, AirSplat.com, and many more.”

China makes a lot of intellectual property headlines. Is China getting a bad rap?

“China is becoming an intellectual property powerhouse; a bit like a very large high college football player.  Young and inexperienced, but having a lot of potential and with the right seasoning has the ability to go to the NFL,” explains the Seattle attorney.

“Generally I tell my clients that it is not enough to have a business partner or intellectual property in China, you want to give your business partner the tools to use by filing for intellectual property protection in China,” adds Mr. Philipp.

He says entrepreneurs face five common problems in intellectual property (IP). They include:

1. Waiting too long to seek IP protection
2. Talking about their technology before securing protection
3. Spending too little money on IP protection
4. Spending too much money on IP protection
5. Spending money on the wrong IP protection

“From a business perspective it is always important to think of intellectual property as providing a business with business tools,” he says. “By simply understanding IP better, businesses can make better decisions on a cost/benefit basis of how or if to proceed with IP protection.”

And he believes patents are needed for five reasons:

1. To obtain exclusivity in their market (barriers to entry for others).  Also to satisfy investors.
2. To obtain licensing revenue
3. For bragging rights (PR)
4. For cross-licensing opportunities
5. All of the above

How about trademarks?

“Securing the investment in a brand and the associated goodwill,” explains Mr. Philipp. “It is expensive and distracting to entrepreneurs and their customers to change a brand.  Registering a trademark can help to avoid that.”

He warns about the importance of copyrights. “Registering copyrights allows a rights hold much easier and cheaper enforcement options.  In particular access to statutory damages that can be quite effective in copyright litigation.”

He’s knowledgeable in the core issues in business-method patents, such as Bilski. Bilski was a decision by the United States Court of Appeals for the Federal Circuit.

What’s Bilsky all about?

“The core issues revolve around the United States’ policy of protecting innovation; and deciding what types of innovations are worthy of patent protection,” Mr. Philipp says. “If is it merely a method of doing business, is that the kind of thing our Founding Fathers really wanted enshrined in the Constitution as protectable?”

Verbiage regarding patents, obviously, is technical, such as the machine or transformation test.

“That a process patent must either be tied to a particular machine or apparatus or must operate to change articles or materials to a ‘different state or thing’,” he explains. “Currently, the U.S. Patent and Trademark Office merely requires a recitation of a particular computer performing the process for software inventions.”

OK, the bottom-line: When does he recommend inventors seek a patent attorney?

“As soon as they decide to build a business around their idea(s),” he concludes. “But that does not mean that they need to start filing for protection right away, rather that they should be informed and strategic about how they allocate their budget.”

Take it from me, pay heed to this information if you want to avoid unnecessary headaches.

From the Coach’s Corner, on a lighter note courtesy of Forbes, here are images of The Kookiest Inventions. (I haven’t verified whether they have made money. )

Business 101 Lessons: Google vs. China’s Censors, Cybercriminals

 

So Google is finally paying attention to a free-enterprise business compass. In other words, the search engine is threatening to extract itself from China over censorship and cybercrime issues. Because it’s a huge marketplace, Google and other companies have been tolerant of such problems.

Actually, tolerating an uncontrollable, hostile environment violates principles in best-practices management. So it’s a tardy development, but let’s roll out the welcome mat.

After President Nixon bridged the diplomatic gap between the U.S. and China in 1972, companies and nations have tolerated and perhaps even encouraged China’s behavior – censorship, violation of human rights, intellectual-proprietary thefts, currency manipulation for cheap exports, other discriminatory-protectionism policies, and Communist Party activities.

In 2006, I wrote that I was disappointed by the decisions of Internet companies that decided to acquiesce to China’s behavior and environment. It’s one thing to accept it, but another to condone it and build a business model around it.

My reasons:

• Values matter
• The free-enterprise system works best
• Economic and political freedoms are connected – lose one and you lose the other

Business Leadership

To be a business leader, it’s important to know who you are…what your roots are…plan strategically…and always try to do the right thing – even if your decisions and actions are unpopular.

Actually, this principle applies to all facets of life and even sports. And I love writing sports metaphors for business topics.

For example, many Seattle Seahawks’ fans were delighted with the selection of Pete Carroll as coach, especially, after his initial press conference upon being hired away from the University of Southern California. That was when he explained why he was previously unsuccessful in the NFL. By any standard, he was dominant in his tenure at USC.

Before coaching at USC, his pro football teams – the New York Jets and New England Patriots – were mediocre. It was refreshing when he admitted in Seattle that he didn’t know himself or who he was in his earlier pro jobs.

In referring to his new team he made this comment: “When we start this thing off, they’re going to know where I’m coming from, because I know where I’m coming from.”

One of his Seattle predecessors, Cleveland Browns executive Mike Holmgren, had success as coach of the Seahawks and Green Bay Packers. But he was unsuccessful his first four years in Seattle because he was both coach and general manager. It was only after the management responsibilities were taken from him that he coached the team to the Super Bowl in 2005. During that time, I speculated that his lack of success stemmed from the Peter Principle. In essence, people rise to their level of incompetence.

Few people are equipped to handle both responsibilities. Even if they have all the technical and management skills, their attention to detail, energy and efficiency will plummet.

So possibly, the Google brain trust needed to learn about themselves and the downsides from conducting business while abandoning their values.

Socrates was right

Ancient Greek philosopher Socrates is known for his aphorism: “Know thyself.” And it’s right out of my human resources training materials.

For individuals, a complete self-assessment of strengths and weaknesses is the key to success. Once an employee knows who she or he is, then it’s possible to effectively set goals. Then, execution comes into play.

For success in business, an analysis of strengths, weaknesses, opportunities and threats will pave the way for writing a productive strategic plan and a business plan. And again, it’s important to execute.

Google’s courage will help other businesses to fully realize about the problems associated with foregoing their values in order to do business in China. Certainly, it will be a catalyst for discussion.

Google believes its security was violated by hackers based in China. But there is probably another motivation.

The search giant has relatively little to lose unlike companies such as General Motors. China is a profit source for GM. Depending on your preferred source of information, Google’s search market share ranges from less than 20 percent to 35 percent. But it isn’t enjoying bountiful profits because e-commerce is not as big in China as the rest of the world.

Here is Google’s explanation  of its new perspective.

Let’s hope others are paying attention.

From the Coach’s Corner, what is your profit forecast this year?

Here is a top-10 checklist for profits:  

1. Review and fine-tune your business plan. Be sure to discern your competitive landscape and benchmark your main competitors.
2. Bring on the A team – both in staff and advisors. Recruitment and training will remain important, and seek the best mentors and professionals for inspiration to help you sustain growth.
3. Remember Pareto’s Principle – the 80/20 rule – that applies to you and your business in a variety of ways. It means, for example, that 80 percent of your revenue comes from 20 percent of your customers. So evaluate how you spend your time and resources.
4. Enhance your staying power by concentrating on your most profitable customers while identifying new revenue sources.
5. In prospecting and marketing, select and target the right customers.
6. Add sizzle by improving your niche-performance. Uniqueness will count even more in this year.
7. Watch your cash flow and your firm’s overall budget each week.
8. Focus on quality in your business processes – make it your No. 1 job.
9. Innovate – plan for more marketplace changes and evolving consumer preferences.
10. Practice the art of mental toughness. Remember when it’s appropriate to ignore the opinions of others, and to persevere in your dreams against seemingly insurmountable odds. I’m still marveling at the success of my mother, who is in her eighties. She was diagnosed with macular degeneration, which meant she couldn’t read the newspaper. A couple of years ago, she had life-threatening complications from back surgery. A few weeks later, she was back in intensive care and doctors warned she wouldn’t walk again. Well, guess what? She’s walking, passed her driver’s test, and once again insists on preparing full-course meals, especially at family gatherings.  Mmm, delicious! Go mom!

Has China Prompted U.S. Tech Innovation and Funding?

Hopefully, recent developments are much like the U.S. space program thwarted Sputnik threats in the 1950s 

 

While China depends heavily on commodity imports to fuel its economy, the country has developed a strategic advantage in technology with serious implications for U.S. security. And as Google has learned, China has cybersecurity issues.

China has surpassed the U.S. as a provider of technology information and products. China has also cornered the market in minerals known as “rare earths,” which are needed for production of technology products, such as computer disk drives and missile guidance systems.

Aside from dominance in the rare-earth sector worth about $1 billion, such developments have serious implications for the U.S. in commercial and military development. The minerals include cerium, dysprosium, lanthanum, and neodymium. China has invested in its rare-earths mines. But it now has gained control of processing technology and has underwritten the largest system of rare-earth research and development in the world.

Helping to fuel its growth, many U.S. companies have moved sophisticated facilities for manufacturing and research and development to China. The companies include Cisco Systems, Microsoft, Motorola and Nokia. That was 10 years after two Chinese companies, with the help of U.S. partners, reportedly bought an Indiana company, Magnequench. Magnequench was responsible for 85 percent of minerals used in the production of “smart bombs” for the U.S. armed forces.

That meant the U.S. military no longer has such a domestic manufacturer using rare earth technology.

In addition, you might remember the China-Unocal controversy in which the oil company was eventually acquired by Chevron. It’s now theorized that the state-run Cnooc also coveted Unocal because its subsidiary, Molycorp, owns the only rare earth mine in the U.S., but it isn’t operational for economic and environmental reasons.

China’s Partners

China has made global friends by initiating other global information-technology inroads:

It  inked an agreement with Kenya to provide low cost wireless e-mail and telephone services. Kenya is in an 800-million person continent where such technology has been unfathomable in many areas.

A Chinese company also built a major telecommunications facility in Angola. Surprisingly, the Chinese company will forego revenue opportunities to service Angola’s new telecommunications system.

China is also making inroads in radar and remote sensing technology in the use of microwaves for high-resolution aerial pictures. Scientists can now take aerial photos that have greater clarity even under difficult inclement conditions, day or night, even to photograph underground objects. The new system is called Synthetic Aperture Radar, or SAR.

The applications for aircraft and satellites are enormous – from agriculture to defense.

China has developed another global ally in economics and politics – Spain. Ostensibly, hoping for economic favor, José Luis Rodríguez Zapatero – the socialist Prime Minister of Spain – lobbied to remove the U.N. arms embargo of China.

Senor Zapatero was also instrumental in the sale of 20 Airbus A330 jets to Air China. Spain, Germany, France and the UK help underwrite Airbus. The jets were worth $3.1 billion.

The socialist is reportedly a devotee of the late Chinese Premier Mao Tse-tung, who was a founding member of the Chinese Communist Party in 1921.

Possibly prompted by such developments involving China, a bipartisan series of bills were introduced in the U.S. Senate to step up spending for domestic scientific education and research. Co-sponsors are also citing competition from India.

A package of legislation known by the acronym PACE, or Protect America’s Competitive Edge, was prompted by 20 recommendations by the National Academy of Sciences in 2006. The organization called for job creation and innovation.

PACE doubled funding for research, provided scholarships to entice new math and science teachers, and extended the credit for research and development. It would alter the visa process to encourage foreign students to remain in the U.S. after they complete their educations.

The minimum price tag for the first year: $9.5 billion. It received support, for example, from the Institute of Electrical and Electrical Engineers – U.S.A. The public-policy group was formed in 1973 and has 235,000 members.

PACE captured headlines abroad. A headline in The Indian Express read: “U.S. tech bill: Boost our team but retain foreign talent.”

Competition from China and India and the resulting Senate bill and a wave of patriotism are reminiscent of a major event nearly 50 years ago during the Eisenhower presidency. Those were simpler times when manual typewriters were widely used, many Americans used a party-line telephone with their neighbors, and there was no Super Bowl.

Suddenly, the Soviet Union launched Sputnik I into space in the fall of 1957. Just weeks later, Sputnik II was launched carrying a dog. That was powerful stuff just before America was to celebrate Thanksgiving. Americans were caught off-guard and they went on alert.

Those two colossal events were the catalysts that prompted the U.S. to massively promote science and technology.

It marked the launch of the space age and the space race between the U.S. and Soviet Union, which deepened the perceived threat to Americans at the height of the Cold War. I was very young, but I remember the bold headlines and elementary-classroom safety drills, as Americans were fearful of the implication that Soviet nuclear-armed missiles would be capable of demolishing the U.S.

The difference between then and now is that relatively few Americans today seem to notice the threat to this nation from abroad in science and technology.

While the PACE Act never passed, and with the nagging federal deficit, deeper problems persist. High school dropout rates are enormous. Even with the current resurgence in MBA school enrollments, it’s still troubling that only about 25 percent of young Americans are interested in obtaining an undergraduate degree.

In 1956, President Eisenhower was sufficiently liked by a majority of voters who enabled him to easily ride to re-election on an “I like Ike” theme. He couldn’t acknowledge that the U.S. already had significant knowledge about the Soviet military and space buildup, as a result of the CIA’s reconnaissance U-2 spy plane built by Lockheed. But the Soviet threat was widely acknowledged in this country and it was easy to rally Americans.

That’s not the case now.

While a significant number of Americans are wringing their hands about job outsourcing, many parents aren’t stressing education to their children. They aren’t connecting the dots between quality jobs and education.

PACE would have been a good start but it won’t solve the underlying cultural issue – nonchalant American attitudes toward education. PACE will need a well-orchestrated, bipartisan promotional effort to motivate parents and children about the benefits of higher education. We can’t afford not to get it done.

From the Coach’s Corner, how would you like more Wi-Fi choices when you’re on the road? There’s a Web site that will help you locate a Wi-Fi location before you even leave your home in the morning. It isn’t a complete listing, but it does list 110,000 hotspot locations in 26 nations. Many are free.

You’ll need to enter the city or zip code where you’ll be traveling at this Web site: http://www.technewsworld.com/hotspot-locator/. (Caution: Even if your system is encrypted, you risk the security of sensitive data by using such hotspots.)