Tuesday, June 2, 2015

14 States Now Require Lawyers to Keep Up with New Technology

In 2012, the American Bar Association approved a change to the Model Rules of Professional
Conduct that defines “competence” to include keeping up with advances in technology.

Model Rule 1.1 provides:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Under the revised Comment 8 to Model Rule 1.1 (Maintaining Competence):

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associates with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.

(Emphasis added.)


States Where Keeping Up with Legal Technology is Required


So far, 14 states have adopted Comment 8. Massachusetts is the most recent, and the comment will take effect there on July 1, 2015.

The Virginia State Bar Council voted to adopt the rule change in 2015 but the change will not take effect unless and until it is approved by the state supreme court.

Earlier in 2015, the comment also became effective in Arizona, Minnesota, Ohio, and West Virginia. The states that adopted the rule previously were Arkansas, Connecticut, Delaware, Idaho, Kansas, New Mexico, North Carolina, Pennsylvania, and Wyoming.

Some states use slightly different language than in the ABA Model Rules, and some have their own versions of rules about lawyers’ use of technology.

For example, in New Hampshire an advisory opinion noted that every state bar association that has issued an opinion on cloud computing has stated that it is permissible as long as a lawyer takes reasonable steps to assure that sensitive client information remains confidential.

In New Hampshire, Ethics Committee Advisory Opinion #2012-13/4 states:

Competent lawyers must have a basic understanding of the technologies they use. Furthermore, as technology, the regulatory framework, and privacy laws keep changing, lawyers should keep abreast of these changes.

(Emphasis added.)


How Can Law Firms Keep Up with Legal Technology?


Given the rate of change in technology, and the vast array of sources of information about new technology, how can a law firm keep up with the “state of the art”?

One way is to follow what clients are doing.

Anaqua’s intellectual property management solutions is the choice of IP leaders worldwide and is used by more than a 500,000 users in more than 200 countries to manage more than a trillion dollars in intellectual assets. Clients include Microsoft, NXP Semiconductors, SAP, Honda, Coca-Cola and Xerox.

Using technology that’s outdated compared to what clients are using can make those clients wonder whether they’re getting the best value for their money.

As O'Shea Getz Managing Partner and patent attorney Richard D. Getz told us in a recent interview about the firm’s adoption of Anaqua,

“We try to be cost-effective for our clients, and we try to be as high-tech as possible. We're an IP firm -- we should be high-tech. This fits within that mold. You want the best tool going."

(To read the rest of the case study, please click here.)


How Anaqua Helps with Compliance with Ethical Rules


As we discussed in this recent blog, keeping up with technology also includes taking steps to keep client data safe from hackers:

an attorney or law firm is obligated to take reasonable and competent steps to assure that the client’s electronic information is not lost or destroyed. In order to do that, an attorney must either have the competence to evaluate the nature of the potential threat to the client’s electronic files and to evaluate and deploy appropriate computer hardware and software to accomplish that end, or if the attorney lacks or cannot reasonably obtain that competence, to retain an expert consultant who does have such competence.

As we said in our white paper on Making the Case for a Unified IP Platform,

Every additional file server, scanner, printer, email user, application and desktop presents a new attack vector for cyber criminals to exploit for the purpose of stealing the clients most valued assets.

And as we discussed in the previous blog,

Anaqua’s unified IP platform enhances information security for law firms by shrinking the attack “surface area.” By reducing process steps, printers, unmanaged emails and attachments, data stores, and file servers, Anaqua’s platform helps firms reduce the risk of criminal intrusions.

Additionally, if the unified IP platform is hosted in the cloud, the firm gains the additional benefit of having the entire platform managed in a secure, audited, and compliant data center.

Anaqua technology also helps firms reduce risks associated with docketing.  As discussed in our recent white paper,

Many firms are not where they need to be. They may have a traditional docketing system that is used by a small group for statutory deadline tracking, but its rules and reminders are not always considered reliable… Firms lack formal systems to verify foreign associates’ compliance with changes in country laws.…

The best-managed firms have moved well beyond this. They have a system with robust country rules to track risks and provide alerts. Exception reports are used to identify areas for process improvement. Risk management policies are supported and driven by integrated systems with multiple levels of review and control.



To learn more about Anaqua Essential for law firms, please click here.


Thursday, April 9, 2015

Auditing Patent Portfolios in the Wake of Alice

The patent landscape has been evolving rapidly in the wake of the US Supreme Court’s decision in AliceCorp. Pty. Ltd. v. CLS Bank Int’l last June.

Both patent owners and law firms that represent patent holders need to be proactive about the new risks and obligations in this post-Alice world.

The patents at issue in the Alice case disclosed a computer-implemented scheme for mitigating settlement risk using a third-party intermediary. The question presented to the Court was whether the claims were patent-eligible under 35 U.S.C. § 101 or whether they were drawn to an abstract idea and thus not patent-eligible.

Some feared (or hoped) that the Supreme Court would invalidate all software patents, and perhaps business method patents as well, in its Alice decision. That didn’t happen. However, challenges to patents based on § 101 have markedly increased since Alice.

A recent study found that during the 27 months before the Alice decision district courts made about 1.4 rulings related to § 101 per month. Since Alice, that figure has reached 5.4 rulings per month.



Vulnerable Patents


Software and business method patents are seen as increasingly vulnerable to invalidation, both via the interpartes and post grant review processes at the Patent Trial and Appeal Board (PTAB) and in the federal district courts.

Hundreds of pending patent applications were withdrawn in the wake of Alice. At least 20 software patents have been struck down by federal courts, according to Reuters, and only a handful have withstood a § 101 challenge since Alice.
According to the National Law Review,

A review of the six post-Alice Federal Circuit panel decisions on the “abstract idea” exclusion confirmed that claims will fail if they merely append “generic” computer or Internet implementation to a business idea.

A recent blog post in Intellectual Asset Management (IAM) reported that tens of thousands of patent assets owned by major companies could be vulnerable under Alice.


Research commissioned by IAM estimated that 76% of Oracle’s patents, 58% of Google’s, and 55% of Microsoft’s are potentially affected by Alice. Ironically, even tech companies that supported the Supreme Court’s decision in Alice are finding themselves victims of it.

Time for a Patent Audit


What does Alice mean for patent holders and the law firms that represent them?

According to IAM,

It would be an unwise publicly-traded tech company in the US that is not currently doing a full audit of its patent portfolio to assess where it stands in this post-Alice world.

As discussed in the IPWatchdog blog,



From a valuation and financial reporting perspective, there needs to be a serious examination of the post-Alice landscape implications on the value of patents as corporate assets. The results of such examination may lead to further action – which could range anywhere from additional disclosure requirements by regulators, all the way to actual corporate asset write-offs.

How can an Advanced IP Management System help?


Both corporations and law firms can leverage the portfolio management tools of a system like

Anaqua to do an “Alice Audit” of their portfolios or their client’s portfolios. ANAQUA’s Portfolio Management works across all modules to provide an integrated environment for strategic planning, management and analysis of intellectual asset portfolios. The Portfolio Management suite includes a number of core tools that can be leveraged to determine how existing or proposed Software and business method patents will measure up against the new considerations that should be considered in a post-Alice world.


To learn more about how Anaqua’s patent portfolio management tools can be used to conduct a patent audit, please click
here.

Tuesday, April 7, 2015

Are Your Patent Files Safe from Hackers?

Nearly every week, hack attacks are in the news. Data thieves have gone after banks, health insurance providers, retailers, and even a movie studio, taking personal information, emails, and hundreds of millions of other items of data. The information has been used to commit identity theft, steal money, and publicly humiliate the victims.

Will law firms be the next targets in the headlines?

As reported by the
New York Times, a recent report by Citigroup is critical of US law firms for failing to disclose data breaches. Because of the secrecy surrounding cyber intrusions into law firms, it’s impossible to determine how prevalent these attacks are and whether they are on the rise.

But there’s no question that law firms are under attack.

Maintaining Client Confidentiality

Law firms, of course, have a duty to maintain the confidentiality of client records.

 ABA Model Rule 1.6 provides:

A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

It’s clear that those “reasonable efforts” include appropriate cyber-security efforts.

The first state bar ethics opinion on this issue appears to be State Bar of Arizona Opinion No. 05-04, from July, 2005, which states:

an attorney or law firm is obligated to take reasonable and competent steps to assure that the client’s electronic information is not lost or destroyed. In order to do that, an attorney must either have the competence to evaluate the nature of the potential threat to the client’s electronic files and to evaluate and deploy appropriate computer hardware and software to accomplish that end, or if the attorney lacks or cannot reasonably obtain that competence, to retain an expert consultant who does have such competence.

Other state bar associations have since issued similar opinions, and common law also imposes duties to protect client information.

A breach of that duty of confidentiality can lead to claims for legal malpractice – and worse.

According to an article in The Computer & Internet Lawyer

The impact on a law firm that gains a reputation as being unable to protect confidential data, particularly client data, could be devastating to its image, its ability to retain and attract clients, and its standing in the legal community.

Patents under Attack

According to BloombergBusiness, hackers based in China trying to derail a $40 billion acquisition targeted seven Canadian law firms. The FBI subsequently warned the top 200 law firms in New York City that “hackers see attorneys as a back door to the valuable data of their corporate clients.”
One security expert estimates that at least 80 major US law firms were hacked in 2011, according to Bloomberg.

According to the Times, the Citigroup report

said law firms were at “high risk for cyberintrusions” and would “continue to be targeted by malicious actors looking to steal information on highly sensitive matters such as mergers and acquisitions and patent applications.

(Emphasis added.)

In theory, now that the US has switched from a “first to invent” to a “first to file” system, information in a draft patent application stolen from a law firm’s computer network could be used to beat the actual inventor to the Patent Office.

How a Unified IP Platform Can Reduce the Risk of Data Breaches

Law firms are known for being far from the cutting edge when it comes to technology, and that’s especially true with respect to data security.


 The ABA’s Law Practice reported that Matt Kesner, the CIO of Fenwick and West LLP, noted that China “doesn’t waste its ‘A’ [hacker] squads on law firms because their security is so dreadful. The rookies on the ‘C’ squads are good enough to penetrate most law firms.”
As we say in our white paper on Making the Case for a Unified IP Platform,

Every additional file server, scanner, printer, email user, application and desktop presents a new attack vector for cyber criminals to exploit for the purpose of stealing the clients most valued assets.

IP firms are entrusted with protecting a large percentage of their clients’ value and yet a recent survey conducted by Marsh USA, reports that almost 80 percent of respondents consider cyber/privacy security to be one of their firm’s top 10 risks; 72 percent said their firm has not assessed and scaled the cost of a data breach based on the information it retains.

Anaqua’s unified IP platform enhances information security for law firms by shrinking the attack “surface area.” By reducing process steps, printers, unmanaged emails and attachments, data stores, and file servers, Anaqua’s platform helps firms reduce the risk of criminal intrusions.


Additionally, if the unified IP platform is hosted in the cloud, the firm gains the additional benefit of having the entire platform managed in a secure, audited, and compliant data center.

The Anaqua IP platform lets firms:

·         Scan documents automatically and securely deliver them to the right destination
·         Eliminate sources of data leakage such as network drives and rogue SharePoint sites
·         Eliminate home-grown apps that may have security vulnerabilities
·         Simplify logging and monitoring 

To learn more about Anaqua Essential for law firms, please click here.

Monday, April 6, 2015

Licensing – The Next Step in Building Your Brand

As all IP professionals know, building and protecting a brand can be an arduous but fruitful endeavor. And formulating a successful brand strategy often incorporates a variety of forms of IP protection. Such comprehensive strategies are especially important when dealing with multi-national brands.

In our most recent Anaqua Leadership Webinar, “Building & Licensing a Global Brand”, David Gooder, Managing Director and Chief Trademark Counsel for Jack Daniel’s, discussed the combination of trademark protection, brand protection, and licensing that supports this globally iconic brand. He starts by asking viewers, why license at all?
  • Brand Building: Licensing leads to marketing benefits for an organization by expanding the brand’s reach across different markets. Jack Daniel’s also has a media placement program which helps build an emotional connection between the brand and consumers. This has led to unexpected trademark benefits such as using product placements to prove reputation and fame in certain cases.
     
  • Brand Protection: Licensing is an important part of trademark protection in more than one way. Jack Daniel’s has built non-core trademark rights that currently cover over 23 classes of protection. The company uses the mark in those classes by either making and marketing products themselves or licensing others to do the same.
     
  • Brand Profit: Licensing can be a highly profitable operation.  In the case of Jack Daniel’s, total sales of licensed merchandise crossed over $100 million, making the licensing program itself bigger than some of the company’s other brands.
     
Beyond licensing, this webinar addresses other key areas such as the importance of careful innovation, overcoming enforcement challenges, and more. Throughout the webinar, David explains how the core values of the Jack Daniel’s brand have contributed to the success of its trademark and brand protection efforts today.

To access this webinar on-demand, click here.

To learn more about how Anaqua enables leading companies like Jack Daniel’s with advanced IP Management Solutions, visit www.anaqua.com

Thursday, March 26, 2015

5 Reasons Why Going Paperless Will Give Your Firm a Competitive Edge


A geographically dispersed client base, increasing demand of rapid response interaction and enhancement of USPTO digital communication are forcing IP firms to deviate from their traditional paper-based, manual processes. However, many firms feel apprehensive about going completely paperless, or they are not aware of how to take their practice paperless.

Firms that understand the benefits of going paperless (and know how to accomplish it) will find themselves ahead of their competition, and with it see decrease in costs, increases in time efficiency, and generally more organized employees and satisfied clients. Below are five reasons why going paperless will give your firm a competitive edge.

"Going paperless puts firms ahead of the competition."

1. Client interaction
Paper-based documents have produced inefficiencies that have wrought the patent industry for years. Paper processes are often accompanied by more frequent errors and greater costs to firms. 


Many IP firms' client bases have dealt with such struggles. With increasing computer-savvy clients and attorneys, it is vital for successful IP firms to ditch this old adage and focus on swift interaction with clients. This can be accomplished by going paperless.  

Paperless document management allows IP firms to manage patents and related documents in one area, and help associates quickly access and provide needed documents immediately. Moreover, paperless management provides greater visibility and control over workflow. Closer control allows the firm to foresee inefficiencies that may hinder client interaction and streamline communication.

2. Recordkeeping 
The docketing process generates a great deal of paperwork that most patent and IP firms retain for a variety of legal reasons. A firm that goes paperless and integrates documents into a single, secure system will not only be able to better manage these documents, but also ensure they are filing in a timely manner with the USPTO and meeting other filing requirements, such as those listed under the Sarbanes-Oxley Act.


Going paperless can also help IP firms prepare for an unexpected audit by establishing internal guidelines to ensure compliance. Firms that understand how to utilize their system to its maximum potential can expedite these unwanted visits and organize their records for a future retrieval.

"80% of law firms print all or most of their documents."

3. Security and backup
According to a recent Fuji Xerox study, 80 percent of law firms still print all or most of the documents they need, while 79 percent still use hard copies when enhancing documents at other firms. While some firms believe paper copies will help in case they are needed in the future, it's the firms that recognize these documents don't need to be hardcopy that will see a competitive edge. Going paperless affords firms the advantage of document backup in the case of undesirable incidents that may destroy needed information.


Paperless document management also allows IP firms to add levels of security to documents containing intellectual property. Users can dictate who can access or manipulate documents by setting specific roles for their employees. Moreover, a tracking history can show who has accessed documents or who made previous revisions, and when.

4. Collaboration among employees
In the IP field where documents and forms are constantly changing hands and are often worked on or referenced by numerous employees, IP firms that consolidate their documents into a manageable system will see increased benefits. Attorneys and staff are more productive when information is in a central location with a consistent numbering or naming scheme. This also allows attorneys to collaborate on projects, and find and distribute important documents instantly.  

Going paperless can have a profound impact on your firm's overall spend.

5. Reduced operating costs
Typically, office space is second only to salaries in terms of total cost for a business. Many of these costs come with the storage space of paper and other office supplies. These costs are increased as employees are paid to find documents through stacks of paper, or in some cases warehouses full of paper. Going paperless will reduce these often-overlooked expenses and add to the efficiency of employees and the firm overall. For IP firms, this also means reducing the risk of missed filing deadlines and easier communication with USPTO.


Going paperless offers many economical and professional advantages that numerous firms are either not aware of, or have apprehension about taking their firm paperless. However, IP firms that choose to embark down this path will see more efficient employees, satisfied clients, and overall peace of mind by having documents securely stored, tracked, and easily accessible.



Click here to learn how Anaqua's IP Practice Management System will enable your attorneys to go paperless.

Wednesday, February 4, 2015

Is Innovation at the Forefront of Your Organization? 4 Steps to Become a More Successful Innovator

Many innovation-focused projects kick-off in the beginning of a new year. However, successfully implementing process changes across an organization can be difficult. A steady output of innovation is critical to ensuring and maintaining a competitive advantage in any marketplace. But how do The World’s Most Innovative Companies, like our client ARM, become and stay successful innovators?

In a recent Forbe’s article, “How Being a Good Manager Can Make You a Bad Innovator”, contributing authors, Nathan Furr and Jeff Dyer, discuss how traditional management styles can slow down the innovation process. The article then goes on to highlight four important steps organizations can take today to become more successful at innovation:

Step 1: Insight: Savor Surprises. Leverage questioning, observing, networking, and experimenting—to search broadly for insights about problems worth solving.

Step 2: Problem: Discover the Job to be Done. Rather than starting with solutions, start by deeply exploring the customers’ need or problem—the functional, social, and emotional job to be done—to be sure you’re going after a problem worth solving.

Step 3: Solution: Prototype the Minimum Awesome Product. Instead of developing full scale products, leverage multiple virtual prototypes to explore many solution dimensions, then iterate on each solution to develop a minimum viable prototype and eventually a minimum awesome product—one that truly delights on a particular dimension.

Step 4: Business Model: Validate the Go-to-Market Strategy. Once you’ve nailed the solution, you’re ready to validate the other components of the business model, including the pricing strategy, the customer acquisition strategy, and the cost structure strategy.

Taking these critical steps can help ensure your new innovation projects are on the path to success, and that your organization is on its way to making next year’s World’s Most Innovative Companies list.  

To learn more ways Anaqua helps companies improve their innovation, visit www.anaqua.com 

Monday, January 26, 2015

What Is Your Firm's Business Continuity Plan When Juno Strikes?

With an impending storm at our heels, the Northeast and Mid-Atlantic are bracing for Juno - and it may be one for the books. This time, you’re ready. You’ve battled grocery store lines, filled your gas tank, and searched frantically through empty aisles for the last pack of AA batteries. The office building has already announced that it will be closed for the duration of the storm, but business must continue. What is your firm’s continuity plan when disaster strikes?
 
The Houston Chronicle’s contributing author David Ingram, notes three key elements in a business continuity plan in his article, “Business Continuity Planning for a Legal Firm”:
  1. Maintain scheduled meetings and communication, including plans for alternative meeting space (virtual or physical), access to important contact information, alternative transportation and access to their data from a remote location.
  2. Have established research and preparation plans, so attorneys can access legal records, and their office administrators can prepare supporting documentation.
  3. Determine a standard process for execution once disaster is imminent or has already struck, is also crucial. Preparation should involve identifying potential disruptions to the firm and what workflow may be affected, planning alternative means of executing that workflow and communicating the standard process to all employees of the firm.
The American Bar Association has also published a more detailed guide to business continuity planning for reference.
 
Start your disaster planning today by following the guidelines above and by implementing secure, dependable cloud-based systems like ANAQUA Essential. Leveraging advanced technology that incorporates all aspects of your firm’s activities is an easy win for continuity planning. Firms that embrace ANAQUA Essential have everything at their fingertips no matter what disaster looms around the corner:
  • Instant access to documents, contact records and more for attorneys, docketing staff and clients
  • Collaboration tools to work together remotely, from the safety of your home
  • Mobile connection anytime, anywhere – even when the power goes out!
Unfortunately, determining a proper business continuity plan isn’t something that can wait until disaster is imminent – and Juno may not be the end of winter’s wrath. Anaqua Essential’s intellectual property management software will help your firm continue to serve its clients without disruption under any conditions.