The Bilski decision came down yesterday and I’m still in a state of complete denial.  Basically, the court punted on the difficult issues and while denying Bilski his patent, they didn’t do anything to help the horrible state of the patent ecosystem that we have today. 

(For a great summary of the case, check out the Groklaw summary). 

To make my stomach even more upset, today I was alerted to an article authored by Ted Sichelman entitled “Why Bilski Benefits Startup Companies.”

In short, Sichelman points to a study that he was involved with and tries to come to the conclusion that these types of patents are good for startups. 

To quote him:

“in a recent survey of startup firms, the Berkeley Patent Survey—which I conducted with Robert Merges and Pamela Samuelson of UC Berkeley School of Law and Stuart Graham (now Chief Economist at the PTO)—startup executives reported that nearly 70% of venture capital firms and 50% of angel investors said that patents were important to their investment decisions.”

While I vehemently disagree with the article, what I found most interesting was a commenter who used a prior post that I wrote on why the study that Shichelman was involved in may be flawed.

Sichelman attempts to refute my post in the comment section, but fails badly.

First of all, it seems clear to me that Sichelman has intuitions on patents based on his experiences and has used the data to fit his theories, rather than using the data in an unbiased way to figure out what is really going on with patents and startups.

I make this assertion based on a couple of observations:

1. Everytime he speaks about patents, he begins with the story of his one experience with a startup company and how patents may have helped.  I’ve had dinner with Ted and I’ve heard the story.  I’ve also seen the story pop up in every situation he discusses patents.  A sample size of one does not make a scientific set. 

2. Sichelman’s co-authors are no where to be found when he comes up with his conclusions.  Ted acknowledges that he doesn’t speak for his co-authors, but very easily uses the word “we” when discussing the study and “his” conclusions.  The blog post that I wrote refuting some parts of the conclusions of the study were not all my own ideas – they were the thoughts of his co-author Pam Samuelson who herself said the article really doesn’t say anything about VC attitudes toward patents.

It’s really clear that Sichelman has a bias that was probably preconceived on a data set of one (his startup) and not supported by his fellow authors who have not backed him up publically.

Furthermore if you read his comments on my blog post, his rebuttals don’t hold water as well.  (And you’ll want to read the comments for this part of this post to make any sense).

1. Response rates – just because you are the most comprehensive study doesn’t make the study necessarily any better.  It might, it might not.  I could be the world’s tallest midget and that still doesn’t get me much (no offense to midgets, sincerely).  I never definitively said the sample size was too low, rather it’s not rock solid clear that it was the right size or targeted the right companies.  It’s not an easy thing for them to do, granted, but we shouldn’t just accept the number “1300” being thrown out and assume that this is sufficient.  And per Sichelman’s own admission in his comments, only about 175 of the respondents were VC-backed startup companies.   This is not a large number.

2.  Only 75% answered the patent question and Sichelman says this is acceptable.  This is not.  In fact, others involved with the study have specifically questioned where the answer rate was a piece of data in itself.  Again, I’m not saying definitively this is data, rather the way Sichelman uses data like this as “proof” is not dispositive. 

3. Results biased toward non-venture backed companies.  Sichelman again presents a non-compelling argument.  First, 2/3rd of the sample size, according to his co-author Pam Samuelson were D&B companies, not VentureExpert companies.  Secondly, him trying to convince readers that I only have a sample size of 25 current portfolios is either poor research on his part about me, or ignoring the facts.  I’ve been involved in VC for over a decade and with well over 250 companies, which alone is larger than his sample size of 175 companies.

4. (My Favorite) – Just because we didn’t survey VCs doesn’t mean that we don’t know what VCs think.  To quote him:

“VCs were not surveyed directly – Although it would have been more reliable to survey VCs directly, unfortunately, our time and resources were limited. Nonetheless, there is little reason to believe that the reports of executives at startup firms regarding the views of VCs during the financing process—which is lengthy and involved—are inaccurate. Rather, executives are presumably well-aware of those items that VCs found important during due diligence.

Basically his response is:  “we couldn’t afford to interview VCs, so we just guessed by asking entrepreneurs.”  This is totally bogus and backed up by Pam Samuelson herself in recent remarks at the University of Colorado law school.  This only talks about perceptions that entrepreneurs have of VCs.  This says nothing about what VCs think.  To think that one study group can be substituted for another study group and presented as fact discredits the valid parts of the paper.  This is just bad science.  If it was good science, we’d just ask parents about what their kids really thought about things. 

In summary, it’s been a rough day thinking about what could have been with Bilski.  I’m getting a ton of backchannel about the politics behind the decision, which just makes me more upset.  To try to capitalize on the poor decision with articles like this just makes me more disappointed about the system and the supposed “experts” who pretend to know much more than they really do. 

Law.com has a great interview with Rich Baer, General Counsel and CAO at Qwest.  I find 99% of interviews worthless, but this is one of the few that allows the reader to actually understand the subject a bit.

The premise of the interview is that Rich is moving on from Qwest after the announced merger with CenturyTel closes early next year.  But more than that, Rich opines on the future of the in-house law practice and looks thoughtfully inward talking about what he will do differently next time. 

Rich has been recognized as a leading innovative thinker in all matters related to in-house counsel and was awarded the 2008 Legal Department of the Year. 

Best of all, despite his non-friendly picture in the interview (sorry Rich) and his hard driving passion for everything he does, Rich is sincerely a nice guy who hasn’t let any of his success go to his head.  Congrats Rich on a great run at Qwest and great interview. 

I was recently introduced to Article One Partners, a crowdsourcing website that is dedicated to uncovering research related to the validity of patents. Just because a patent has been granted by the USPTO does not mean that it should have been – in fact, nearly half of all patents litigated to judgment are eventually determined invalid.[1]

Article One provides a community that researches the validity of patents. Their researchers are often able to discover non-digitized evidence (such as textbooks and plaques) that could be directly related to a patent. They reach millions of researchers and subject matter experts from across the world, who speak dozens of languages. Since evidence that is related to a patent’s validity can be in any language from anywhere in the world, this is particularly compelling. Who knows what exists in Columbia that might directly relate to a patent in the United States?

Article One’s clients post requests for research of specific patents, which then appear on their website. The community of researchers sees these requests and looks for evidence related to the patent. The individual researchers that find the best evidence get paid between $5,000 and $50,000. Clients learn more about their patents and potentially save money, while individuals can make a lot of money. Everyone wins.

I can definitely see Article One being used as an extra layer of diligence in the VC community, especially bio-tech or medical devices.  For software, well I’m just hoping patents go away.

The other interesting use case is around defending against patent assertions which are becoming more common for early-stage, venture-backed companies. This service provides a tool in exploring the validity of the patents that have been asserted and provides quite a bit of leverage.

I have written before about my hatred of software patents, and frustration with the patent system in general. Platforms such as Article One Partners allow the general public to get involved (and be rewarded!) for ensuring that the patents that are out there are legitimate.

[1] http://www.ipwatchdog.com/2010/06/14/pharma-reverse-payment-amici/id=11169/

Last week I wrote a blog about Atomic PR and their illegal spamming of folks trying to generate buzz for their clients.  [Note: they’ve since apologized and have agreed to stop doing this and let folks opt out – see the comments area for the CEO’s reaction post].

One of the most interesting things to come out of the post, however, was an article by Mike Melanson on Read Write Web entitled “Does your PR Firm Need a PR Firm?”  It’s a really thoughtful piece and had one piece of advice that is critical: 

“Remember that allowing a PR firm to run free with your brand is essentially allowing it to have control over how your startup comes off to the rest of the world.”

In other words:  Control your brand.  Always.  It’s your most important asset.  Your brand is made up of your goodwill, reputation and public perception.  It’s hard to have a good brand and it’s very easy to have a lousy one.  It’s also easy to have a good one ruined and very hard to go back the other direction. 

One can come up with many examples of companies with good brand equity who have made missteps with products and have lived to fight another day (although you can’t have too many mistakes).  But companies with bad brand equity seem to always be behind the eight ball.  For instance, Microsoft, which allowed Apple to rebrand themselves with the “I’m a Mac” commercial series, can’t buy a break despite Windows 7 being a really good product.  And my bet is that Toyota, which had tremendous brand equity figures a way out of its quagmire as well. 

And startups, which have even more fragile brands, hire PR firms at prices that are equivalent to executive salaries and basically hand over the keys to their brand.  And some do the same with their lawyers who interact with their VCs. This also holds true for all service providers that companies hire that deal with the outside world.  All of this can build or damage a startup’s brand.

Even in AtomicPR’s case, they outsourced their brand to a email database called Cision.  They claimed that they don’t spam because they subscribe to a database that gives them contact information of journalist and bloggers in the technology space.   From the word’s of Andy Getsy, CEO of Atomic PR:

“Jason has an active blogger profile on Cision, which lists him as a VC covering venture capital topics. He blogs on tech products and companies from time to time. I suspect that this is partly how his info popped up again”

AtomicPR decided to blindly trust a database that claims it contacts bloggers for inclusion on their lists.  Well, for at least two of them – myself and my partner Brad, we’ve never heard of them or been contacted.  And I’m not a blogger or reporter who “covers” technology, as Cision claims.  I’m just a dude with bad grammar that occasionally writes things that people read. 

And while their intent might not have been to spam, that’s what they did.  They outsourced their contact list and then furthered outsourced their brand to junior associates who did not respond to my polite pleas to be taken off the list.  So in the end, AtomicPR’s brand was tarnished by their outsourcing and eventually one person who took issue (me). 

Morale of the story:  Be hyper careful about your brand and reputation.  It’s your most important asset.  And it’s a bitch to fix.  If you don’t believe me, Google “AtomicPR” and see what comes up on the first page. 

As a former drummer, I like to poke fun at drummers.  They/we are all wired just a bit “differently.”  A while ago, I listed my favorite drummer jokes and the post is now one of the top search results on Google. 

Yesterday, my friend John Bliss, CEO of Blipsnips, sent me this great video of a drummer who totally loses it.  The group is supposed to be all about the guitarist – it’s his band, but their drummer steals the show.  It’s really funny how the cameraman decides to pay little attention to the band leader.  The drummer is part bird man and part Tommy-Lee-wanna-be.

I have been in Boston this weekend hanging out with friends following a few days of board meetings, Techstars demo night (which rocked) and a day visiting with our investors.  I figured that I’d tack on a long weekend and explore a town that I visit often, but rarely go out and “play” in. 

Yesterday we took in the Conan O’Brien Legally Prohibited from Being Funny on TV Tour.  We’d seen the show in Boulder and it was fabulous.  We were fortunate enough to have a hookup in Boston that allowed us special access and we got to watch the band practice and hang a bit with the man himself, who was an incredibly gracious host.  I think my favorite part of the show was watching his parent’s faces as they watched the show, especially during the part where Conan riffs and sings about his “rough upbringing.”  (hint: they laughed a lot). 

Conan’s opening act is Reggie Watts and his opening show was about 50% different from the Boulder show which was really impressive and showed how large his repertoire really is.

Reggie does everything from classic standup, to music, to hip hop and has a burgeoning “hit” in a song that has more profanity than anything I’ve ever heard, but it’s really hilarious and smartly done.  In fact, I think Reggie is one of the most original talents that I’ve seen in a long time. 

After the show, Reggie (who speaks in about a half dozen different voices and dialects during his show) was one of the nicest, more grounded and normal performers you’d ever want to meet.  He also said look out for his Comedy Central pilot show, which I’ll definitely check out.

Reggie also has a very unique hair stylist.  See to the right.

Good night by all.  Some pics:

A little while ago, I blogged about how some public relations firms were spamming me.  In short, I was getting tired of random PR firms sending me emails about stuff that I didn’t care about and thus further cluttering up my inbox. 

These random carpet bombing strategies were both abusive and stupid – some poor client is paying their requisite $10-15k a month for the PR firm to make a bad impression on me.  In fact, I alerted a VC friend of mine that one of the firms was carpet bombing about his recent financings and he was none too happy.

One PR firm, in particular has really taken this to a new level:  Atomic PR.

The folks seriously suck ass.  Not only do they carpet bomb me, but every time I politely ask them to take me off the list of the stupid stuff they send me, they either one: don’t reply, or two: reply that they will, but never do.  And then I get an email from some new “bright and shining face” informing me of some “exciting news” that I couldn’t care less about. 

I tried to warn them, but apparently they didn’t believe me when I said that I would call them out. 

So, I officially start my boycott today, of AtomicPR until they vow to change their ways.  Don’t hire them.  And PLEASE link, share and retweet this post, so that when folks search for “AtomicPR,” the Google gods rank this post highly.

And Atomic guys – if you don’t stop, the next step is to report you to the appropriate government authorities since you don’t really allow anyone to opt out of their communications. 

If anyone has a lot of time on their hands and wants to email my friends at Atomic PR, here are their email addresses:

michelle.sabolich@atomicpr.com

allison@atomicpr.com

korina@atomicpr.com

aileen@atomicpr.com

If you have followed our investment in Oblong, you know that it is one of the most innovative companies that we’ve ever invested in.

They spoke at TED this year and the video is now available.  Witness the future of computer user interfaces and collaboration.

It’s been a while since I’ve posted one of my beer reviews.  It’s not that I haven’t been trying out a few new offerings, rather I am behind on getting reviews written due to pesky things like work. 

I’m really excited about today’s review, however, because these are the first home brews that I’ve tried in a while and as you’ll tell from the review, I loved them.  Tsan Abrahamson, not only one of the most gifted trademark, IP and licensing lawyers out there, a former professional chef, but also a really nice person, sent me a quartet of her beer making prowess.  I sampled the first two of them yesterday with Ryan. 

First thing you notice are the great names, which I guess should be expected from someone who deals with branding on a daily basis.  “Wit She-Devil” – a Belgian Wit styled beer with lemons and oranges and one of the better beer names ever: “Keep Hop Alive” IPA. 

Wit She-Devil Review:  Ryan’s favorite of the two.  The orange and lemon are perfectly balanced and it’s nice to see a beer that can achieve this.  Usually, I get either one or the other, or an imbalance between the two.  Great nose of fruit zest and there was copious amount of debate whether coriander was present as well.  There was something similar to the Zinnebir that I tasted previously in both quality and accessibility. 

Mendelson Rating: 8/10.

Keep Hop Alive Review:  This one was my favorite.  I was pleasantly surprised that a home brew could have such wonderful hops, but this one did.  Ryan wanted even more hops, especially later in the brewing process, but I’m happy with the balance and the lack of bitterness that some IPAs get.  My only “ask” would be a bit heavier on the nose, but it was a smooth and effective IPA in my opinion. 

Mendelson Rating:  8/10.

Now of course, the big issue is that none of you can purchase these fine brews at your local market.  But if you know Tsan, or you hire her as your attorney, perhaps you, too, will find a gift box arriving at your door one day.

I recently got a demo of Spindle Law, a new crowd-sourced legal research site that’s part legal treatise, part wiki, and part lawyers’ forum for discussion.  Spindle Law organizes the law hierarchically with topics leading to ever-narrowing legal rules.  Instead of searching the text of cases or other authorities and then teasing out the legal rule, you browse or search for the rule, which is shown with the authorities that support it.  There’s also a really cool workflow tool that helps you draft a document based on your research.

The law on the site is contributed by the community alongside designated specialists who keep an eye on things.  You can log on and start adding to existing practice areas, start a new area, comment, or “vouch” for an  authority and agree (or not) that it supports the linked rule.  So far, there’s substantial coverage of the law of evidence, Clean Air Act, securities fraud, and forum non-conveniens (my personal favorite).

Cases and other legal sources are, more and more, out on the web for free.  But until this information is well organized, practicing lawyers can’t make much use of it.  Spindle Law may very well be how that organization will happen.  While there are clearly the issues of information that is crowd-sourced (think accuracy of Wikipedia), the benefits may far outweigh the issues, if properly monitored and a vibrant ecosystem evolves.  I am excited to see where they go with this idea.