Tag Archives: patent practice management

Patent Work Product: A Reflection Of Your Firm’s Brand

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By Ian C. Schick, PhD, JD, CEO & Co-founder of Specifio (first posted on blog.specif.io)

Should your firm’s patent work product be a part of the firm’s brand strategy? How does having a “house brand” for work product matter for law firms involved with patent procurement? These are some of the topics covered in this article but, before getting into the weeds, let’s first take a step back and discuss branding for patent law firms more generally.

What is “brand” when it comes to patent law firms?

In the broadest sense of the word, your firm’s brand could be thought of as a collective mental construct associated with your firm. It is the overall impression of the firm felt by clients, prospects, and the public at large. It includes everything that comes to mind when one thinks of your firm—both factual (e.g., firm name, logo, attorney pedigree, types of clients, etc.) and emotional (e.g., reputation, quality, value, prestige, etc.). 

Why is brand consistency important for law firms?

Brand consistency refers to a pattern of expression affecting perception about your firm. The more consistency in the pattern, the more consistent the brand, which is important on a variety of fronts. For example, a cohesive law firm brand projects professionalism as compared to a brand expression that is all over the place. With professionalism comes trust and loyalty. Brand consistency encourages confidence among law firm clients that they’ll dependably receive a certain level of service when they engage your firm.

A well-defined brand image acts as a guide for marketing and branding decisions. It is crucial for shaping your firm’s brand perception. Only when all brand elements are coordinated and complementary can a firm’s brand be reliably shaped in the minds of clients and others. And it’s not just important for people outside of your firm. A consistent brand facilitates internal direction by aligning attorneys and staff with the firm’s values and positioning.

One of the most important functions of brand consistency is for differentiating your firm from other patent law firms. In competitive markets with near-identical offerings, a clear and consistent brand is what sets your firm apart while attracting new clients and helps retain existing ones.

Is patent work product an element of a law firm’s brand?

Your firm’s brand is what it projects to the world outside your firm, most crucially to the firm’s existing clients. Along with direct client communications and billing, the provisioning of work product is one of the most important interactions between a firm and its clients. Substantive work product for patent law firms primarily includes patent applications, office action responses, and briefs.

The work product itself is the culmination and results of what your firm’s brand stands for. It represents delivery on the promise of a level of service your clients pay for and expect. As such, to support brand consistency, the work product coming out of your firm should consistently reflect your firm’s brand–just like any other brand element.

Who controls brand–the patent law firm or individual patent attorneys?

Imagine if every cook at McDonald’s had their own twist on the Big Mac? Customers would never know what they were going to get unless they only went to McDonald’s when their “favorite” cook was there. But even with their favorite cook, they may never be content and may instead be constantly wondering whether they could be getting a better sandwich from a different cook at the same restaurant. While this analogy may be silly, it is exactly the type of situation many patent law firm clients find themselves. 

A law firm client cannot be consistently assured they are getting the value they’re paying for if the work product is not well-defined. Because one client’s patent cases are often handled by a team of practitioners with ranging experience levels and backgrounds, the work product they receive can vary widely depending on who was responsible for preparing it. That is, unless the firm’s work product is managed to provide a consistent work product each and every time.

What about the argument that diverse work product is actually an advantage when it comes to patents because it acts as a hedge against future changes in laws affecting patent interpretation and validity? To some, this may seem more like an unprovable client pacifier than savvy business advice. While sounding logical and soothing on its face, the argument reflects a dangerous underlying position that a firm’s attorneys should not do what the firm regards as best practices and should instead “do their own thing” when it comes to work product.

Because the business value of brand consistency in work product likely outweighs any potential benefits of diverse work product, patent law firms may be wise to consider dictating firm branding as it relates to work product, instead of leaving it in the hands of individual attorneys.

How to make patent work product consistent across practitioners such that it supports brand consistency?

A variety of strategies can be deployed to promote consistent work product across a firm. First and foremost, however, it is essential to centralize the management of work product branding in a way that is accessible to individual attorneys. The firms should establish what it regards as best practices to guide practitioners as they generate work product. 

Templatization

Among chefs, there’s a saying that diners eat first with their eyes. The same goes for law firm clients when they’re evaluating your work product. The appearance of the documents is a reflection of your firm’s brand. A clean-looking and well-organized document will always be received better than a sloppy or inconsistent one. Templates are a powerful tool for ensuring a consistent look and feel to your firm’s work product. Often, even template formatting can be augmented and changed by an individual attorney’s copy and paste actions, resulting in an ugly work product that is scrutinized more heavily based on the appearance of the document, let alone the content. Thus, to work effectively, templates need to be maintained by a single person or group of people. The benefits of templates also extend to efficiency and quality control. For example, with centralized template management, firmwide updates to boilerplate can be effectuated instantly and consistently for all practitioners.

Standardized document parameters

Having well-defined and enforceable document parameters is another key element for generating consistent work product. Take a patent application, for example. Firm mandated document parameters may include things like the time spent taking in and studying each invention prior to drafting the corresponding application, the number of claims, the types of claims, the time spent drafting claims, the number of figures, the types of figures, the time spent preparing figures, the length of specification, the sections to be included in the specification, the structure and language used for each individual section in the specification, time spent preparing the specification, and so on.

Document parameters can extend to document-related processes as well. For example, there may be prescribed client approval checkpoints such as after the claims are prepared but before work has begun on the specification and figures.

Successful implementation of a well-defined set of document parameters will likely depend on a project intake process that includes categorizing new projects based on client, technology, and/or complexity. This is necessary to align each project with the appropriate parameters. An organized intake process may also complement the alternative fee arrangements (e.g., tiered flat fees) becoming ever more popular.

Why do law firm clients value consistent work product?

From an in-house practitioner’s perspective, consistent work product means knowing ahead of time what they’re going to get in return for each work assignment to outside counsel. That, in turn, means less review time and peace of mind knowing that they won’t be hung out to dry.

As for the patent-owner company, the value of consistent patent work product may be more along the lines of transparency into the strength of their portfolio. If a portfolio manager is confident in what is consistently portrayed in the underlying patents, then there is more clarity when it comes to opportunities for leveraging the portfolio. Indeed, work product consistency is so important for some sophisticated consumers of patent services that they prescribe their own application templates and stringent document requirements to their outside counsel.

How do patent law firms benefit from delivering consistent work product?

The benefits of consistent work product are not limited to brand perception and the value felt by firm clients. The patent law firm itself also benefits. For starters, it encourages systematization of document preparation, which in turn encourages efficiency. Despite the billable hour, law firm efficiency allows for “doing more with less” and coping with challenging economic trends in the patent market. 

Consistent work product lets quality control be streamlined and tightened. For example, if the underlying document template is already firm-approved, the reviewer need only review the substantive parts of the document that differ from similar prior documents. Well-defined document parameters lend predictability to the work product itself, not to mention delivery times and the law firm’s cost associated with generating the document.

Conclusion

It is not controversial that brand consistency is one of the central tenants to modern businesses. Why should patent law firms differ? Law firm brand encompasses work product and, therefore, consistent work product across a firm is an essential element of successful branding. The stronger the brand, the easier it is to win new clients and keep your existing ones happy and loyal to the firm. 

DISCLAIMER: The views and opinions expressed in this article are those of the author and (1) are not provided in the course of and do not create or constitute an attorney-client relationship, (2) are not intended as a solicitation, (3) are not intended to convey or constitute legal advice, and (4) are not a substitute for obtaining legal advice from a qualified attorney. You should not act upon any such information without first seeking qualified professional counsel on your specific matter. The hiring of an attorney is an important decision that should not be based solely upon Web site communications or advertisements.

A Production View on Patent Procurement

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By Ian C. Schick, PhD, JD, CEO & Co-founder of Specifio (first posted on blog.specif.io)

When we think of a “production environment”, a law firm patent practice is not usually the first thing that comes to mind. But why not?! Patent practices are highly process-oriented and they certainly involve “manufacturing” work product, primarily in the form of new patent applications and office action responses. This article discusses how, with a production view on patent procurement, exploiting the principles of lean production can be a compelling way to adapt to tough issues presently roiling the patent ecosystem.

The idea of commercial manufacturers providing completely-handcrafted products went out the window, for the most part, during the industrial revolution (the first one). To be sure, examples of prideful handiwork can still be found today, like with Amish woodworking or specialty items like, say, Rolls Royce automobiles. Speaking of cars, Rolls Royce and BMW both had record sales last year. Rolls Royce automobiles are assembled by hand and are of the finest quality. BMW automobiles are also very high quality, but manufactured by employees, automation, and OEMs working in concert. Rolls Royce sold 4,107 vehicles in 2018 (0.082 vehicles per employee), while BMW sold over 2.49 million vehicles (18.5 vehicles per employee). If these car companies were law practices and the cars were patent applications, which one would you want to model your own practice after?

We all know the Rolls-Royce approach to patent procurement–more or less the way it’s been done for the past 100 years. In today’s hyper-competitive patent market, however, having a more BMW-style practice may prove key to prospering (or even to survival in some cases). So what would a BMW-style patent practice look like? More specifically, how can patent practices modernize through lessons learned in traditional production industries–where decades of intense competition has resulted in process optimization evolving into a science?

Some of the most successful patent firms today are leveraging ideas from “lean production” to maximize their competitive edge. Lean production is a convenient framework for thinking about operations and possible improvements. It is a school of thought that originated in the Japanese automotive industry in the 1990’s. The basic idea is to maximize the creation of value for customers while eliminating waste. Here, “value for customers” means any action or process that a customer will be willing to pay for. Parts of the production process that do not add value are considered waste.

Several interrelated concepts are central to the lean production ethos. They include minimizing waste, just-in-time production, kaizen (continuous improvement), and cell production. Each of these is explained below in the context of patent procurement.  

Minimizing waste

Waste in patent procurement can take on many forms. At a high-level, however, waste can be categorized as overprocessing, overproduction, or defects.

Overprocessing

There is a waste of resources if an expensive resource (e.g., an attorney, a patent agent, a paralegal, a secretary, etc.) is used for a task when another resource could complete the task just as well. At first blush, this sounds a lot like the classic mantra of law firm leverage. However, there are things that can be done besides delegating talks to lesser-trained individuals to avoid overprocessing. For example, tasks can be decomposed into subtasks and those subtasks can be examined for further delegation even if the larger task is traditionally handled entirely by the more expensive resource. Also, in some cases, emerging technologies in automation may present alternatives to delegation. Where automation can be utilized instead of human labor, tasks are often performed cheaper, faster, and with less errors. 

Overproduction

In the law practice context, overproduction means generating more work product than is needed to meet a client’s needs. Take patent application preparation, for example. How does a drafter know when a patent application is done? In traditional practices, it’s often done when the budget is exhausted. What if, instead, the drafter stopped working on the application when it (1) provides sufficient backup positions that might actually end up in the claims during prosecution, (2) provides sufficient enablement for the initially-claimed and potentially-claimed embodiments, and (3) conforms to any and all requirements from the client. Law firm clients expect work product that satisfies official and strategic requirements, not a treatise on the field of invention.

In order to cut out overproduction, practice management will need to align their own incentives with those of the practitioners doing the drafting work. One easy change, for fixed-fee projects, is to give practitioners a fixed billable hours credit for completing the project, regardless of whether it came in under the budgeted time. Rather than just hours worked, which encourages overproduction, this ties performance more closely to revenue generated.

Defects

This includes any mistakes that occur in the patent pipeline, whether they be clerical (e.g., errors in filing forms), more substantive (e.g., curable § 112 issues), or procedural (e.g., incurring extension of time and other unforced fees). Defects-type waste can lead to additional cost in the form of penalties and legal fees for curing mistakes. Prosecution can also be delayed while defects are addressed, meaning even more waste.

Adjustments in processes and leveraging technology can effectively reduce defects. For example, getting religious about the “four eyes principle” can have a drastic impact in catching errors, but perhaps at the expense of efficiency. Today, there are many automated patent proofreaders available that, in just seconds, can thoroughly review a patent application or office action response for common errors.

Just-in-time production

In general, the focus of just-in-time production is on reducing inventory waste. That is, products are not stockpiled, but rather produced “just in time” to meet orders. With minimal stockholding, producers can be more flexible. For example, they can switch to make new products without having to get rid of much stock, meaning they can act quicker to add value.

Inventory in the law-practice context is work that has been requested by clients (i.e., “work orders”) but not yet completed. In traditional practices, where a stable headcount means production capacity (i.e., full utilization of all employee resources) is essentially fixed, completion of any overage work (i.e., work orders above and beyond what employees can process at a given time) is delayed until work orders dip below the production capacity of the practice. A goal of this conventional approach is to compensate for the ebb and flow of work coming in so that practitioners keep as close as possible to their individual capacities (e.g., 35-40 billable hours per week). The inherent side effect of the traditional model, however, is the stockpiling of inventory in the form of pending work orders.

To realize just-in-time production in a patent practice, flexible production capacity is required. Practices should be able to handle bursts in work orders without having to delay completion for lack of available resources. This is done by incorporating non-employee resources into patent workflows. Non-employee resources can include automation tools, contract patent professionals, and/or domestic or offshore outsourcing services. These are resources that can effectively be turned “on” and “off” as needed such that overage work is completed on pace with client work orders while keeping employee resources at their production capacity. All of the undulations in work orders are absorbed by non-employee resources, thus sufficient resources are always available to meet production needs but the practice is never punished by having to pay for unused or underutilized resources.

For work orders that come today, when is “just in time” to complete them? For a variety of reasons, conventional wisdom says filing by client deadlines (e.g., a product release), non-statutory deadlines (e.g., three-month deadline for office action responses), or statutory deadlines (e.g., on sale bar) should not be the goal. Instead, with a lean production approach, work should be completed as expeditiously as possible to minimize inventory, i.e., the time between the client requesting the work and the work being finished. With the rapidly expanding range of available non-employee resources, be it automation or outsourcing, it has never been easier to find right-fit services for patent procurement production.

Kaizen (continuous improvement)

This is really process optimization but in an incremental fashion and in a way that involves all members of a patent practice, top to bottom. The philosophy of kaizen relies on a continuous effort to improve production. To be effective, a decentralized organizational structure is required with regular team meetings to identify and implement small, often quite simple, improvements to processes and activities. Discrete steps may be eliminated, combined, automated, outsourced, or made more efficient in other ways. Providing training to practice members to help them be more analytical may boost results. 

Another requirement for effective kaizen is that efficiency among practice members must be incentivized. As with overproduction, the traditional billable-hours model for assessing practitioner performance can be counterproductive for kaizen. Here again, tying compensation to revenue generated may often get closest to aligning the interests of management and other practice members. One way to do this, as mentioned previously, is awarding practitioners the full balance of the hours budget for fixed fee projects even when they come in under.

Cell production

According to lean production thinking, processes should be viewed as a series of separate but interlinked subprocesses. Each subprocess is then delegated to the most efficient resource. Traditionally, in manufacturing, each process is assigned to a “cell” or group of production workers. In patent processes, a cell could be comprised of one or more employee resources, one or more non-employee resources (i.e., automation tools, contract patent professionals, and/or domestic or offshore outsourcing services), or combinations thereof.

Processes large and small can be decomposed and optimized in this way. At one end of the spectrum, the “process at issue” could be an overarching process (e.g., “starting with an idea, procure a patent”). In fact, some leading practices have one group of practitioners who draft new patent applications and a completely separate group of practitioners who prosecute pending applications before the USPTO. As the process at issue becomes more granular, however, the opportunity is enhanced to squeeze out more value and eliminate more waste.

To illustrate, if the process at issue is preparing a patent application, subprocesses may include something like (a) invention download, (b) drafting claims, (c) assembling a first draft of the specification with baseline § 112 support, (d) bolstering the draft specification with strategic additions for future prosecution and litigation, (e) preparing formal drawings, and (f) finalizing the application ahead of filing. An attorney can certainly perform all of these subtasks, like in a Rolls-Royce-style practice, but it involves a significant amount of “overprocessing”, in the lean production sense. A more BMW-style practice would find the most efficient solution to each subprocess in order to maximize the creation of value for customers while eliminating waste.

Conclusion

With changing demographics among practitioners, challenging economics in the patent market, and exciting new technologies designed for patent practices, it is imperative that practices evolve their operations to remain competitive. To some, transitioning an operating patent practice to incorporate the tenets of lean production may sound like repairing a car while driving down the highway. But it can be done, it has been done, and an incremental approach will keep the changes relatively painless.

DISCLAIMER: The views and opinions expressed in this article are those of the author and (1) are not provided in the course of and do not create or constitute an attorney-client relationship, (2) are not intended as a solicitation, (3) are not intended to convey or constitute legal advice, and (4) are not a substitute for obtaining legal advice from a qualified attorney. You should not act upon any such information without first seeking qualified professional counsel on your specific matter. The hiring of an attorney is an important decision that should not be based solely upon Web site communications or advertisements.