I really do try to keep an open mind. But it feels SOOOOOO good to have one's POV supported. Mark Chandler, the General Counsel of Cisco System Inc. was profiled in the August 29,2007 edition of's In-House Counsel online publication. "Mark has pronounced the death of the billable hour model" said Gordan Davidson, the chairman of Fenwick & West.

But wait there's more.

Mr. Chandler does not expect law firms to lose money. Rather, "it's about driving efficiency so we both make money". And, since Cisco can't routinely send out letters to its customers explaining yet another price increase, Chandler understandably views such law firm letters with skepticism. And the ever increasing costs associated with law firm salaries? "It is up to firms to find ways to drive greater efficiency and productivity, and we haven't seen escalating salaries as adding to either of those"

But wait there's more.

Chandler recognizes one of the great flaws in the billable hour: it focuses on a one to one relationship with a lawyer who bills by the hour rather than the delivery of information services, negotiation or courtroom skills.

But Chandler's most innovative measure may be his posture as a client. Chandler understands the responsibility he has a client. He regularly asks his outside lawyers what he can do to be a better client. That my friends is leadership.


This morning, as I was standing in line at the local OFFICE MAX store, I head a Bob Dylan song playing



I can't believe it either. Another blog entry based pearls of wisdom from Costco.
The current issue of COSTCO CONNECT, their self described lifestyle magazine, has a small article entitled Nickel and Diming Doesn't Add Up. The authors describe their dissatisfaction with a contractor who quoted them a decent price, and did a decent job, BUT... his final bill was much larger than his estimate.
Why? Because he charged extra for travel time, hours spent reviewing the project before he accepted the job and time critiquing certain materials, a task the authors did not ask him to undertake.

Sound familiar?

Lawyer's often separate out professional fees and charges such as photocopy fees, legal research charges, meals and cab fees for firm employees. Never mind billing for travel time or such creative charges as buying a new briefcase and charging it as a document container. This has always puzzled me. Why should't such fees be part of the calculation that results in a firm's billing rates?


Will Enterprise 2.0 Mean Law 2.0 ?

Yoh hotshot IP lawyer- ever heard of crowdsourcing? Ready for an innovation jam? How about a mashup?
If you don't know what these terms mean- you better find out. Because the very nature of work is changing before our eyes. The tools of the Web are being used as part of an amorphous collaborative process- where nothing is static- not the questions asked or the answers formulated.

And what role for IP law and IP lawyers in this new world? I don't pretend to know. But I am willing to guess that if there is place for the law and lawyers in this new world of work then the law must fundamentally change.

US IP law assumes a static rather than dynamic world. A world where it is important to clearly identify authors or inventors and the products of their mental effort. A world that offers rewards to those who jealously guard certain information as proprietary. How will existing legal doctrine adapt to circumstances where authorship or inventorship is ambiguous or perhaps indeterminate?
From a larger perspective this dynamic process challenges traditional notions of lawyer and client. In a static world the person with a problem pays a professional to use specialilzed skills, access to special information and a specialized vocabulary to solve that problem. In the dynamic world everyone has access to information, an archaic vocabulary slows down the pace of change and clients expect to actively contribute to the process of generating solutions.

Welcome to the future.

Are we ready?



OK boys and girls gather around: its story time.

Many years ago an All American basketball player named Ernie Di Gregorio was paid the unheard of sum of one hundred thousand dollars to sign a pro contract. A TV reporter asked him: "Ernie is any basketball player worth a hundred thousand dollars? And Ernie replied: " Of course not- but as long as someone is willing to write the check I will gladly take their money"

I was reminded of this story after reading in yesterday's Wall Street Journal that $1,000 per hour billing rates are more and more common at some New York law firms. The article focuses on the pros and cons of crossing the 1K barrier or staying slightly under it at $995.00 per hour.

One general counsel quoted in the article opines that " $1,000 for very seasoned lawyers who can solve complex problems doesn't seem to be inappropriate".

Which reminded me of another story. During my freshman year in college several friends incessantly proclaimed that they were beer connoisseurs- and as such they had developed palates that could easily distinguish between blue collar Budweiser and imports such as Heineken's or Guinness. So we put them to a test. We blindfolded them and let them attempt to identify different brands of beer.

As you might expect- they failed miserably. The best were the worst and the worst were the best.

And the moral of these two stories? Does anyone really think that a $1,000 per hour lawyer is twice as experienced, twice as creative, twice as effective as some poor Joe charging only $500.00 per hour? And mister General Counsel- if you do then why not conduct your own blindfold test. I feel quite confident that I can predict the outcome.

And please don't attempt to rationalize your decision by using that tired phrase "bet the ranch litigation". As the field of behavioral economics wants always to remind us Dollars are Dollars. If its worthwhile to save $10.00 on a $20.00 purchase then those same dollars should be saved on a $100 purchase.

But I don't want to leave you with any doubts. I am a very seasoned lawyer who can solve complex legal problems. And if you act quickly, before my rates double , I may just help you for $1000 per hour.



An article in today's Wall Street Journal blog( I think that's where I read it) was further evidence that the legal landscape continues to shift under our feet. In describing the pros and cons of the apparent rise in pro se litigation the article mentioned that pro se plaintiffs have prevailed on some lawyers to unbundle their services. What does unbundling mean? It means that the pro se plaintiff may hire a lawyer to file a complaint on their behalf but then take over responsibility for advancing a claim.
And here is where I bang my drum again. Drum roll.....the Internet changes everything. Never mind litigation- a person of reasonable intelligence,with access to the Web, can actively participate in the construction of legal documents. The preparation of such documents then becomes a collaborative effort- the lawyers role is to exercise judgement not to cut and paste forms. All in all a better way.



One of the enduring maxims of US trademark law is : No trade no trademark. The dilution doctrine contradicts this maxim by allowing the owner of a trademark to protect that mark across the entire spectrum of commerce. This gives a brand owner property rights in a verbal or nonverbal symbol-without regard to the touchstone of US trademark law - consumer confusion.

The dilution doctine has sharply divided brand owners ever since it was first proposed. Some believe it is essential to protect famous trademarks. Others are firmly convinced that the doctrine is both unnecessary and dangerous. The Trademark Trial and Appeal Board (TTAB) may have inadvertenly demonstrated that the doctrine is indeed unnecessary and (dare I say) dangerous.

In Virgin Enterprises Limited v Albion Motor Ford Mercury( TTAB, August 10,2007) the TTAB refused to allow an Albion, Michigan car dealer to federally register the terms VIRGIN VEHICLE, VIRGIN PURCHASE and VIRGIN SALE. Each of these terms was being used in connection with the sale of automobiles. Virgin Enterprises, the creation of Ricard Branson, opposed the attempts to register these terms. Does Virgin have many federally registered trademarks? Yes. Do any of these federal registrations identify automobiles? No.

Virgin based its objection on likelihood of consumer confusion and trademark dilution. The TTAB, after tripping all over itself to recognize the fame of the term VIRGIN , cast aside any formal reliance on the dilution doctrine while granting dilution-like protection to Virgin using the factorial analysis associated with likelihood of confusion.

This method of analysis will undoubtedly please those who believe that certain brands should be protected at all costs.

Brand not famous enough for dilution? Not to worry- your brand can be famous under likelihood of confusion analysis. Part of that fame achieved AFTER the second comer began using the same term? Not to worry. We will happily consider that fame in our analysis- though we would not be able to under the dilution doctrine.

As an advocate, one can only dream about the TTAB leaning towards one's point of view, as they did here. Brief filed a day late? Relax, we'll consider it. Lame and confusing assertion of the family of marks doctine? That's ok- the TTAB will still rely on the doctrine to support its rationale.

For years, those opposed to the dilution doctrine have argued that the doctrine is a solution looking for a problem. While hoping to limit its application they have argued that that the factors used to resolve traditional trademark disputes are flexible enough for most, if not all, the factual circumstances where dilution might otherwise be asserted.

Now that courts have restricted the scope of the dilution doctrine an administrative body like the TTAB genuflects to the flexibility of factorial analysis to silently grant dilution-like protection to brand owners who might not otherwise qualify for such protection.

But there's more....

Whenever I read cases like this I ask : What's really going on here? Or What in the world motivated them to continue this madness? Here, a small Michigan car dealer spent a boatload of money for ???? They did not need to register the VIRGIN terms. The terms were, at best, part of a secondary marketing campaign. And the dealer had been warned by The Ford Motor Company not to use the term VIRGIN in connection with its cars.


Die Billable Hour Die

The Atlanta law firm Ford & Harrison, with 190 lawyers, is abolishing billable hour requirments for its first- year associates. Instead the associates will spend much of their first year observing experienced lawyers while developing practical legal skills- in a manner modeled after the meical school approach to training.

A courageous first step? Yes. A move that is long,long, overdue for all lawyers? Undoubtedly. For the plain truth is that the billable hour encourages inefficiency and rewards dishonesty. Any lawyer, first year or managing partner, faced with the task of supporting law firm economics one hour at a time, will find herself engaged in mental jujitsu at the end of every day.

The premise of this blog is that the internet has fundamentally changed the nature of information. No longer can lawyers depend on a specialized vocabulary and a book of forms to render services in some mysterious manner.


What Lawyers Can Learn From Costco

Let me set the scene for you. Big(well kinda) law firm retreat. Much knashing of teeth and searching of souls. How do we adapt to the new realities? For some the answer was "Can't we just do things like we always have?" One of the younger partners, a rainmaker, said "When our clients think of us I want them to think- Damn right the're expensive, and the're worth it."

Well perhaps there is another path.

If you've shopped at Costco you know that they offer very good merchandise at very fair prices. And they do so with friendly, employees, a cheerful shopping environment and rock solid customer support. The most recent edition of the COSTCO CONNECTION, their shopping newsletter, contains a profile of the Board of Directors, with their comments on the management style of the company. In a nutshell: the highest ethical standards and a relentless focus on serving needs, while treating customers and each other with dignity and respect.

Need I say more?

The internet changes everything. It is transforming the nature of business and personal relationships. This blog is meant as a forum for discussing these changes. Soft intellectual property law will be the primary vessel. But by no means the only one.