Everyone’s a Patentpreneur Now

Don’t you just love when people make up words?  I do.  Obviously.

Just today read this piece about the new First-to-File that the AIA ushered in.  I like this point the best:

At a time when we should be doing everything to help our future business leaders, we are ensuring that small startups and entrepreneurs will have to choose between designing great products and filing patents, just to win that “race to the Patent Office”.

It dovetails nicely with the piece that Andy Gibbs wrote on how IP Strategists should best advise their clients under the new rules.  He touched on a similar point, which would make the second time I’ve quoted this part of his post.  Can I do that, are there rules against multiples of the same quote in different blog entries?  Either way:

However, the elephant in the room is the client’s implicit desire not for a “patent”, but for a mechanism to deliver superior market position, protect competitive market share, and to create increased shareholder value. They believe the “patent” is their ticket.

The thing of it is, while patent trolls clearly hinder innovation, a patent itself does not equal innovation.  It does not equal creativity.  It does not equal profits (just ask the Fuzzibuns lady).  The post continues and boy is this fun:

I guess I have to accept that Congress in its infinite wisdom knows what it’s doing to help our economy recover, just like when it decided that the Sequester was the answer to our Federal budget woes.  You multi-millionaires who sit in seats of power must truly understand what this nation needs.

Strike one.

Maybe you are hoping to siphon off all of those extra filing fees to shore up social security.  Certainly all of the extra money spent on patent attorneys will help our sagging legal industry.

Yeowch!  Strike two.

But alas, I know this is not true.  I must face reality and live with your stupid, dumb-#@! attempts to fix a patent system that isn’t broken because solving the real issues that we face as a nation is just too #$@! difficult for you.

Aaaaand you’re out!

I think there are clearly issues with the patent system so saying it isn’t broken…well, I respectfully disagree.  (I can hear you scoffing…I can too be respectful!)  But it doesn’t matter because the salient point Kelli Proia is making is that “Do you have the patent on that?” is the new “Is that Spanx or Yummie Tummie?”  It’s the first question anyone asks when they see you on Oscar night something new comes along, rather than “Do you have a product that people want and need?” or “Do you have a Wharton MBA, or access to someone who does who can help you with the business end of your…business?”

Those are the kinds of questions we should be asking, but because of the patent wars the the trolls have exacerbated, patents are all the rage.  Even the Avon Guy is at risk by refusing to play the game.

So how do you fix it?

Shut down the trolls.

Just sayin’,

IPTT

Backin’ It Up, Backin’ It Up, Backin’ That Big Derriere Up!

Many moons ago when Phi Slamma Jamma was big and then they all moved to the NBA I watched a lot of basketball.  The Houston Rockets in the Olajuwan/Sampson era were something. While watching a game against the Phoenix Suns, the announcer said one of the funniest things I have ever heard.  Charles Barkley is known for being slightly more {ahem} rotundified than your average basketball player, and he was moving backwards into the lane to take a shot.  Hilarity ensued as the announcer said, and I’m not even kidding:

…and here comes Barkley with the ball…backin’ it up, backin’ it up, backin’ that big derrier up!

I’m in tears over my Special K this morning, laughing riotously all these years later.  I mean, imagine the nerve it took to say that to a man who could and, on the right day and in the right mood, absolutely would squash you like a bug!  Sportscasters.  You gotta love ’em.

What all this has to do with patents is something I can’t get out of my head since reading an IP Watchdog post written by Andy Gibbs re: lawyers and the patent process.  He writes about how the patent prosecution process will change now that First To File is in effect.  Salient point #1:

However, the elephant in the room is the client’s implicit desire not for a “patent”, but for a mechanism to deliver superior market position, protect competitive market share, and to create increased shareholder value. They believe the “patent” is their ticket.

Exactly.  This is what the Fuzzibunz lady had…a patent, when what she really needed was a business degree and some guidance from someone who knew what the hell they were doing in the cloth diaper market.  She admitted she had bad lawyers, and that’s the point Gibbs is making:

Just as most of society wrongly considers doctors as “gods”, many patent clients wrongly think that patent attorneys will help them achieve these business objectives simply by filing a patent.

He’s right, that’s exactly what people are thinking.

I’m a big proponent of fighting the patent troll battle using the lowest common denominator:  the patent itself.  That’s why what Article One Partners does is sheer genius.  But there’s another lowest life form common denominator that Mr. Gibbs brings to light: the patent attorney.

We have to get the USPTO to start issuing better patents, and we have to start whittling down the spate of awful ones already out there.  But what about backing the ol’ derriere up even further and starting with the attorneys who file these stupid patents to begin with, just because their clients tell them to?   Here’s the key:

IP strategy, or in the current context, “Patent Strategy” is nevertheless foundational to mutually beneficial patent attorney / inventor client engagements.

Companies and inventors need to distinguish between the idea of a “patent strategy” and an “IP strategy”.  I’m not fully convinced 1/2 the ideas out there even need patenting.  If you get the right attorney, one with an MBA and some general business smarts, s/he can advise you that instead of wasting years getting that patent issued, you could just go on ahead with your idea by actually making something with it and, just for kicks, selling it.  For a profit.  To make money.  Isn’t that what business is about, or do I need to return that BBA to UT?

“But IPTT”, I hear you cry, “what if someone (huff, huff) STEALS MY IDEA??”   Well, I guess I’d pull out that old phrase that “imitation is the sincerest form of flattery”.  In so many markets (pharmaceuticals excluded due to the vast amounts of R&D required), the answer to that question is “so what?”  Let ’em.  While the rest of the world is out there trying to reverse-engineer your product and get their own version out there, you could be miles ahead. Market share beats margin nearly every single time.

If someone builds a better mousetrap using your idea, then guess what?  You’ve just been pwned.  That’s how the game of business is played, only nowadays everyone is scrambling to get their patent before they’ve even flushed out the business plan.  Lawyers are at the very start that process and as such should be asking more questions of their IP clients…things like what’s your product?  Where’s your market research?  Where’s your business plan?  Do you need an attorney to file your incorporation papers?  Do they even ask any of that?  No.  They write up the patent and ship it off to Washington and then send the bill to the client.  Silly.  <— (The lawyer I mean.  And the client, who just thinks he needs a patent.  Or  both.  Both are silly, really. Never mind, there I go again.)

Backing up the train just one more step to the attorney, or IP Strategist, that you choose is a good way to stay out of the patent fray altogether.  You may still end up patenting something and that’s fine.  Just be sure you really need one and that you have more than just that piece of paper as a business plan, that’s all.

And that, folks, is how you tie Charles Barkley and his big derriere to patents.

Just sayin’,

IPTT

Wherein I Quote The Remake of Sabrina

I’m not generally a fan of remakes, but the updated version of Sabrina stars Harrison Ford, which is the only other reason than to laugh that I go to see a movie though I must make an exception to that for Cowboys and Aliens.  Harrison?  There is not enough tequila on the planet to have convinced you to make that movie. Ditto Daniel Craig.  For shame, on both of you.
My favorite line from the 1995 Sabrina is

“Do I look stupid?  You know, I never thought of myself as stupid, but maybe I am.”

David Larabee’s mother says it to Linus because David really thought we didn’t know he was out to get the chauffer’s daughter.  Please.  That’s kinda how I’m feeling about Friday’s Shark Tank episode with the FuzziBunz lady. By about ten minutes into her spiel it was crystal clear that she was there for one reason only:  to bitch about people stealing her idea.  “IP Squatters”, she called them.  Very soundbyte-ish and you could tell she couldn’t wait to use her $10 phrase.  Never mind everything else that was wrong with her business, she was all furious because she’d sent the plans to a manufacturer in China who *GASP* stole them, made a similar product, and sold it for (presumably) cheaper.  THAT HAS NEVER EVER HAPPENED BEFORE TO ANYONE IN THE HISTORY OF EVER.  That’s all I can assume she was thinking, the way she got all super-indignant about it.

First of all, let me just say that about 12 years ago Attachment Parenting was all the rage (in fairness, it may still be…my kids are long past the slinging age so it’s far less relevant to me now than it ever was) and there was a sub-part of a message board I belong to devoted to the practice.  I have half a mind to go do a search and recall all the threads about cloth diapering.  Fuzzibunz, while highly regarded, was but one of many nearly identical alternatives.  It’s not all that unique an idea, and I really need to go look up what exactly about it she has patented because that’s a whole bucket of stupid right there, that the USPTO would consider patenting something that’s been in existence pretty much since babies were invented.  So Tereson Dupuy really needs to take up her fight with Adam and Eve, is what I’m saying.

I’m a little surprised the Sharks didn’t attack her for the smoke screen she threw up.  Her appearance was a vendetta.  And for the sake of authenticity and the fact that I am reading Daring Greatly so I have to open up here, I myself have operated out of spite from time to time.  But spite and bitterness don’t grow a business.  Patents shouldn’t either.  What should grow a business is a sound idea well executed.  What has happened to Tereson is that she had only the first half of that equation.  Her business is not profitable twelve years into it.  According to her Shark pitch, she’s at $3.9 Million in sales, but $20k in profits.  Wait, what?  That’s pretty sad to be at that point so many years into it.  She admitted that she had a bad patent attorney so OK, everyone makes a mistake.  But once the super-secret diapering plans were out, you have to change your game.  Litigation is not a business plan.  Oh, wait

It would appear that she didn’t do that, and her business is suffering and she needs help.  She intended to use Shark money to fight the patent battle.  The Sharks didn’t bite, and well done on them.  Like Maude Larabee, they aren’t stupid.  I have a lot of ideas for how to grow her business, but so does she.  She knows.  She just got caught up in the patent wars, another victim of the “Intellectual Property as King” mindset created when the trolls took over the industry.

It’s a shame.

Just sayin’,

IPTT