The 3^rd Annual Super Marketing Conference will take place on Thursday, May 16, 2013 at Suffolk University Law School in Boston, Massachusetts.

What makes this all-day conference special?

1. It was created by lawyers for lawyers.  This conference specifically addresses the unique marketing requirements of our profession keeping in mind our ethics rules and marketing constraints.  There’s also a heavy focus on the needs of solo and small firm attorneys.
2. You can attend from anywhere.  They’re offering an on-line viewing option.  You can register to attend via the web here.
3. The conference offers great networking opportunities for solo and small firm lawyers.  If you can, you really should attend in person to maximize the experience.  Register to join in person here.
4. It’s affordable at only $69!  Breakfast and lunch are included.   And last but not least…
5. It will help you market your firm and your services better.

This year’s conference will focus on web marketing, with an impressive lineup of speakers addressing lawyer advertising online.  Avvo Founder and CEO Mark Britton will be the keynote speaker, and will address ‘Ten Opportunities Lawyers Miss in Online Marketing’.

If you’re a solo or small firm lawyer who needs help with your marketing, you really should attend.

I get nothing out of telling you this.  I just love this conference.  I’ve gone the past 2 years, and walked away both times with great information, new contacts, and a sense that I can tackle this marketing thing.  I wouldn’t miss it this year and I don’t want you to miss out on a great learning opportunity.

You can find all of the details here.

I was a fan of your fairness to solo and small inventors, allowing them the opportunity to compete with big business on a small budget by giving them the opportunity to prove they were the first to invent, even if it took them longer to perfect the invention and file a patent.  I loved how you made the system about the invention not the patent.

To all the inventors out there, today is the last day to file your patent applications under the First-to-Invent rules.  I know patent attorneys across the nation are working hard to ensure their clients get the benefit of the old rules, by filing thousands of patent applications by Midnight tonight.

But beware.  One amendment to the claims after tomorrow means your patent could be governed by the new rules.

Tomorrow our patent system will turn its back on small business and solo inventors in favor of those who have the money to file early, file often.  Embracing the First-to-File model means that the United States follows the herd in the name of “predictability” and “certainty of outcome” (not really, but it sounds good in soundbites), while at the same time creating uncertainty and unpredictability in our courts for at least the next 20 years.

Tomorrow we declare in unison with the rest of the world that the only thing that matters is the patent.  As if inventing somehow is the equivalent of filing a patent application.  This is such an un-American notion to me, but one I will have to live with.

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”.

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.

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.

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

Our unique Patent System comes to an end to day.  A grand experiment that has helped build a great nation.

Rest in peace First-to-Invent.  American business is better today because of you.

It’s amazing how fast 18 months flies by.  It seems like just yesterday I was lamenting the passing of the America Invents Act, and now here we are mere days away from its final implementation.

If you haven’t heard, the United States will officially follow the herd and become a First-Inventor-to-File nation on Saturday, March 16.  In light of this new beginning, here are 5 things you should know about the AIA to ensure that your inventions are protected.

1.  First-Inventor-to-File Wins

Here’s the scenario.

Two competing companies are working to solve the same problem.  Both companies invent the same solution.  Each company files a patent application with the US Patent Office.  Who does the Patent Office award the patent to?

Under the First-to-Invent system, the patent would be awarded to the inventors who could show that they invented the invention first.

Under the First-to-File system, the patent would be awarded to the inventor who filed their application first.

To quote Tom Hanks’ character in Cast Away, “We live and die by the clock.”  You don’t have time to make everything perfect before you file a patent application.  Good enough will have to do.  (You might even have to settle for just OK.)

2.  You Will Spend More Money Earlier in the Process

Under the First-to-Invent rules, an inventor could tinker around with his invention, tweaking it until he turned his concept into a finished product.  At that point, he could file one patent application to cover the end result without fear that someone would step in and file their application before he was ready.

Those days are gone.

You no longer have the luxury of waiting.  An inventor will have to be on top of his patent game from the very beginning.  The new corporate patent process might look something like this: file at conception, file again, maybe multiple times, as the inventor works the concept into something that resembles a more complete product, and at the end when the final product finally reveals itself.

That’s a lot of money earlier in the process to ensure that you have won the race to the patent office.

3.  You Need a New Attitude

In order to make this adjustment successfully, your organization MUST adjust your thinking when it comes to patents.  You can’t file a patent as an afterthought in your New Product Development process.   You need a procedure to identify any and all patent issues as early in the process as possible.  If you don’t, you run the risk of losing your valuable business assets.

4.  The Strategic Use of Provisional Patent Applications

Make sure you and your patent attorney understand how to use provisional patent applications.  When money is tight and time is of the essence, these informal, non-examined patent applications may just be the answer.

5.  Amending Claims Can Change the Rules

It all seemed so simple.

Applications filed before March 16, 2013 will continue to be subject to the old First-to-Invent rules.  Applications filed on or after March 16, 2013 will be governed under the new First-to-File rules.

But nothing is ever as simple as it seems under the AIA.

What if you amend or add claims in your first-to-invent patent application after the March 16, 2013 date?

Even though you had filed your patent application prior to March 16, 2013, certain changes you make to the claims may pull your application into the First-to-File rules, and you may not get the full protection of the First-to-Invent rules you thought you had.

6.  Change to the Grace Period Rules

Like the First-to-Invent system itself, America had another somewhat unique feature in its patent system.  The United States offers what is known as a Grace Period.

In the United States, inventors were given 12 months to file a patent application after the date the invention was first disclosed to the public no matter who disclosed the invention.  That was a benefit of the first-to-invent system.

Now, the grace period only applies to disclosures made by the inventor.  Public disclosure by anyone else anywhere in the world prior to you having a patent application on file means you lose your patent rights.

(Think about how this could impact heavily competitive industries with multiple companies working to solve the same problems.)

7.  Prepare for the Unexpected

Just when you think you understand the AIA things are bound to change.  Like any new law, what the various provisions and terms of the AIA really mean will be decided by the Courts.  Over the next decade (or longer) IP practitioners will closely watch as cases wind their way through the Federal court system.  There is already talk that a Constitutional challenge will be waged against the America Invents Act itself.

Don’t be fooled.  The America Invents Act brings significant change to American business.  In 10 days, we enter into a brave new world, America.  Good luck and God speed.

It’s amazing how fast 18 months passes, and how the sentiment remains the same.

Foreign commentators think it’s a move in the right direction.  It creates a ‘certainty of outcome’ is what they tell us.  Try it.  You’ll like it.  Just like we do.  The rest of the world can’t be wrong.  (Really?  What’s the latest and greatest technology to come out of your entrepreneurship communities, France?   Seriously, should I be taking my lead from a country that bans the words “tweet” and “email”?)

Despite the idea that we will be one, happy, first-to-file world, Americans still aren’t feeling the love.

Most US patent attorneys I talk to don’t like the AIA.  In fact, I haven’t talked to one that does.  There is a general feeling that the law doesn’t solve the real problems in the system, and creates a whole slew of new ones.  Some of which (like the meaning of inconsistent language) we will only start to deal with years down the road as legal cases wind their way through the US courts.  (Certainty of outcome my ass!)

Why the difference of opinion?

Well your opinion of the Act might depend on what you see as the problem.

So I asked myself, what problem(s) does the AIA solve?  How does turning the US patent system on its head help US inventors, business, and the economy as a whole? (With the short answer being:  It doesn’t.)

The AIA solves a foreign policy problem.

As intellectual property and the related issues take center stage in trade discussions, the meat of the Act, the first inventor to file provisions, harmonizes our patent laws with those of the rest of the world.  Our leaders talk about certainty of outcome and how US law will be just like their laws, and it makes our trading partners feel good.

The AIA doesn’t make American small business owners feel good. 

It doesn’t make patent attorneys feel good either.  Even large American companies don’t like it.  And this is a problem.

Large companies have an advantage.

The only certainty of outcome small business owners see is that big business have the money to play by the new rules.  Small business can’t keep up.

Last week I was asked to give a talk at an entrepreneurship event at a local university.  I told them about the changes in US patent law.  I gave them the typical advice that is emanating from patent attorneys everywhere, “File early.  File often.”   I told them what other attorneys are saying about the problems with provisional patent applications, and what all of these changes really mean for business.

And guess what?  They were angry.

No one saw these changes as helping American businesses succeed.  All they saw was a scenario where they would have to file more patents sooner in the process.

As they informed me, the biggest barrier to entry for filing patents is the cost of drafting and prosecuting a patent application.  If a bigger percentage of their limited funds have to go toward legal expenses, there’s less money to actually get a product to market.

This mean Entrepreneurs are more likely to go without patents in favor of getting a product to market.

Is this the end-result our lawmakers were hoping for?

Of course, the concerns of these startups weren’t news to me.  It’s just confirmation that the AIA doesn’t help the US and its economy, especially when the backbone of that economy is small business.  Right now, they’re the ones creating the jobs and the technology of the future.

Entrepreneurship thrives in America like nowhere else in the world.  Part of that is because of our unique patent system.  Believe it or not, the US patent system was designed to help inventors, and inventors have thrived in the US.  When we implement a patent system that’s stacked against them, what are we hoping to accomplish?

By their very nature, they are exclusionary.  They keep people, companies, and competitors out.

If you have a patent you have the right to exclude others from the space that the patent covers.  In essence, as a patent owner, you have the right to stop competition for a short period of time.

Think about that.

Patents are very powerful.

Personally, I don’t make resolutions.  Although there are a few things I could change about me, I know that making resolutions is a waste of time.  Why?  Because I know I’m probably not going to stop procrastinating, there will still be clutter around my house, and even though I pay for membership to our local YMCA, I’m still going to struggle to get my butt over there.  (That’s just who I am.)

I typically make goals instead.

Every year I make a list of things that I hope to accomplish in the 12 months that lay ahead of me.    Some goals are personal, like find a new kitchen table that better accommodates our family or paint the master bedroom.  I might even unpack the last of the boxes from our move 3.5 years ago.  (This particular item has to do with that procrastination thing I mentioned above.)

I also spend a fair amount of time setting goals for my business.   So, during the last week of 2012, I took out a notebook and started jotting down all of the things I hope to accomplish in 2013, like

• Conduct a webinar once a month.
• Write an eBook on IP for Entrepreneurs.
• Blog every Tuesday and Thursday.
• Build my “List”.

There were goals related to social media and income, as well as a new blog that I’ll be rolling out this month.  When I finished this year’s list, I felt pretty good about it.  With a little effort, each item is pretty easy to accomplish, and if I accomplished every item on the list, I would certainly move by business forward.

Or so I thought.

I was proud of myself and my list.  That is until I read David Ackert’s blog post, Three Words for 2013.  David doesn’t make resolutions.  Instead, David uses Chris Brogan’s “My 3 Words” concept for New Year’s planning.

The 3 words idea is simple.  You identify 3 words that serve as themes for the upcoming year.  These words are supposed to “sum up what you want to work actionably on changing/improving in the coming year.”  According to Chris Brogan, choosing 3 words to focus on helps you look at the bigger story.

“The big story is that which we want to believe about our life and our goals and our plan…Goals are a way of knowing that you’re headed in the direction of your…story.”

So I took another look at my list.

My list was just a list of individual action items.  It’s not a bad list, but merely a laundry list, a to-do list.  It didn’t say anything about what I want to be true and to believe about my life.  Where was my “big story”?

So I came up with my 3 words.

1. Dare. 

2. Communicate. 

3. Earn. 

If I dare to step out of my comfort zone and communicate my message to those who need to hear it, I will earn respect, an audience, and money.

That’s a pretty powerful story.

I challenge you to try this exercise.  Let me know what your 3 words are in the comments below.

1.  What will the fall-out be from the full implementation of the America Invents Act?

2.  What will be the impact of the First-Inventor-to-File rules being implemented in March?

3.  Will the Federal Circuit and the Supreme Court ever get on the same page when it comes to a §101 standard?

4.  What is the future of software and business method patents?

5.  Will the US Supreme Court strike down gene patents?

6.  Who will be the next Director of the US Patent & Trademark Office?

7.  Will there be peace in the Smart Phone Wars or has another offensive just begun?

8.  Will Congress grant IP protection for the fashion industry?

9.  Will we continue to see an increase in patent litigation by NPEs?

10.  Will we see more $1,000,000,000+ damage awards in patent litigation cases?

I’m not sure we’ll have definitive answers to all of these questions prior to the end of the year, but the potential for the US Courts to significantly change patent law in this country is great.

So what do you think?  Do you think software patents are history?  Do you see peace in the Smart Phone Wars on the horizon?  Share your thoughts and some questions that I haven’t mentioned in the comments below.

Who knew I could write something that memorable?

Thank you Managing IP!  I am honored to be included on this list.

I went on a fabulous field trip to meet new people, learn some interesting lessons, and grow as a business owner.  I attended the Massachusetts Conference for Women.  It’s the largest conference for women in the United States.  (I heard rumors that there were over 8,000 attendees!)

I would love to share just a little of what I learned from some of yesterday’s amazing speakers.

1.  From Dr. Brené Brown, Shame Researcher & Author of Daring Greatly

“It’s about showing up and daring greatly.”

You can say this about life, work, relationships, love, and just about everything we do as human beings.  You might win.  You might lose.  But you will certainly fail if you don’t show up and try.

After hearing these words in the morning keynote address, I lived them in the first breakout session, The Disruptive Innovation of You.  During Q&A with speaker Whitney Johnson, I asked a question that got a few laughs.  It also got me a few business cards.  Sticking my hand up and asking a question in a room full of women got me noticed and remembered.  Women came up to me all day saying “Hey, you’re the woman who asked that great question.”

2.  From Whitney Johnson, Regular Contributor to the Harvard Business Review Blog & Author of Dare, Dream, Do

“If it feels scary and lonely, you are probably on the right track.”

I think this pretty much sums up the entrepreneurs life, no matter what dream you are pursuing.

3.  From Jean Chatzky, The Today Show financial contributor

“Saving money will always be no fun.”

It’s the same logic as “Why are things that taste good so bad for us?”  Saving money may not get you the shiny new object of your desire, but it gets you peace of mind.  Which do you want more?

4.  From Arianna Huffington, Founder of the Huntington Post & Author

“Make changing the world part of your daily agenda then Grace will be extended.”

If everyone consciously did just a little something to make this world better, every day, then the world would get better.  It’s up to us.

And

5.  Also from Arianna Huffington…

“Everything in my life happened to me because a man wouldn’t marry me.”

It’s amazing how often you can look back on your life and see all of the times when what seemed like something really bad actually turned out to be something really good.

I was so inspired by yesterday’s program.  I woke up today with so much energy and excitement, and I just wanted to share a little of that with you.

Have a great weekend!

VS

Intellectual property is a full-contact sport.

Yes, you read that right.

I mean full-contact, complete with trash talking, gloves come off, smack-down contact.

Punches are thrown.  Combatants get bloodied and bruised.  There are winners and losers.

Don’t believe me?  Just check out the ruckus surrounding Samsung and Apple in their battle for smart phone supremacy.

Unfortunately, there are those in the media who don’t understand this simple concept.

An ill-informed media pretend that they understand the intricacies of patent law after an interview or 2 with a disgruntled company and a few hours of research.  They twist words, spew fiction as fact, and completely misrepresent the law.  Then these reporters refer to patent lawsuits as “WAR” as if U.S. lawmakers never intended for companies to sue over patent rights.

They would have you believe that IP is like golf.  That it’s a gentleman’s game where nobody gets hurt.  No one sues anybody.  Everyone gets a license with great terms if they want one, and companies that choose litigation over licensing aren’t playing by the rules.  They point to an increase in the number of patent contests as a sign that the system is broken.

But anyone who knows a thing or two about patent litigation knows that’s not true, and never has been true.

Patents first and foremost are offensive weapons.

Patents aren’t magic amulets that protect your product or your business from infringers.

They are the means by which companies assert their rights to their government-granted monopoly.  And guess what?  Lawsuits are, and have always been, the intended method of asserting those rights.

In fact, patent lawsuits have been around for a very long time.

So why is there so much criticism now?

What has changed (and brought a massive amount of exposure to patent litigation) is the number of prominent participants, especially Apple, as well as the huge amounts of money at stake.

A few high-profile technology giants decided to up the ante in patent litigation.  For the first time in decades, some of the biggest patent owners in the US turned to their patent portfolios to protect their market share.  And Apple’s involvement in serious patent litigation brought massive amounts of attention to something that no one in the mainstream media ever cared about before.

For years, most people, including journalists, never thought twice about patent litigation.  Suddenly, Steve Jobs says that Apple will go thermonuclear on Google, and people demand to know what’s going on.  A big verdict and a few billion dollar+ patent auctions later and the world as they understand it has been turned upside down.

However, the world of patent litigation, as most people understand it today, never existed.

IP has always been about how you use it to protect your market share.  It’s meant to stop anyone who would intrude on your property.  It’s is not passive or defensive.

So it’s time to stop pointing to the “Smart Phone Wars” as an example of what’s wrong with the system.

THERE’S NOTHING WRONG WITH THE PATENT SYSTEM.

In fact, this is exactly how the system was designed to operate.  You just didn’t know that.

I’m sorry if you don’t like it.  I’m sorry if this type of aggressive action somehow offends you.

Apple, Microsoft, Samsung, Google…they all know what they are doing.  It’s the risk they decided to take when they put their products out into the marketplace fully aware that there could be patents out there that could impact their business.

So to everyone who wants to be in business today…

1. Ignore your intellectual property at your own peril.  If you’re the second inventor or you file your patent application late, you are probably out of luck.  That great thing you “invented”.  You may not own the rights to it.  Not everyone is guaranteed a trophy in this contest.
2. Ignore another company’s intellectual property at your peril.  You aren’t guaranteed a license.  In fact, assume you won’t get one.
3. If the only thing you’re willing to do is get a patent, you are wasting your money.   I know I said it before, but it needs to be repeated, patents aren’t magic amulets that protect you from patent infringement.   It’s a business tool that can help you achieve great success, but only if you use it!
4. If you aren’t prepared to step into the arena, walk up to your opponent, and throw that patent around, what are you going to do with it?  And please don’t say frame it and hang it on the wall in the lobby.

If you want your intellectual property to work for you, you have to be prepared to fight for your rights.