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’,