Population Distribution by Age in 5-year increments for Tampa-St Pete-Clearwater. Interesting that the peak years in the boom is the 45-to-50 year olds. The 45-55 block in this demographic will see benefits reduced or the retirement age extended for Medicare and Social Security (or both). Will housing prices rebound by retirement age for this block of middle-aged boomers? Will there be a market for single family homes, then, allowing these late-boomers to cash out?

Sigmoidal Curve

8 Tenets for Entrepreneurial Success -- Embrace Failure

1. Be honest with yourself, your investors, your employees and your customers.
2. Know your business better than anyone, and know your customers best.
3. Have a product or service that your customers need.
4. Manage cash flow; seek early sales and revenue; always innovate and improve.
5. Leave customers wanting more, but don’t make them wait too long.
6. Embrace failure:
• an uncompromising teacher;
• a requisite step for innovation;
• a crucible for character.
7. Work harder than anyone; and
8. Selflessly lead your team to achieve timely business goals, notwithstanding inevitable failures.

Entrepreneurs fail, sometimes early and often. Honest entrepreneurs embrace their failures, learn from their failures, innovate and improve products and services based on their failures, and take ownership of their failures, without excuse. An entrepreneur knows the business and inspires others, within the crucible of failure, to rapidly retool and redirect efforts toward success. Life and business are uncertain. However, attracting new customers, while keeping existing customers loyal and satisfied, leads to a predictable revenue growth. The sigmoidal curve, above, illustrates a statistically predictable exponential rate of growth, early, and eventually market saturation.

The slow growth during a start-up phase and exponential revenue increase during a rapid growth phase is a predictable pattern for entrepreneurial businesses. Work hard, know your customers, have products or services that customers want, deliver goods and/or services that leave customers wanting more, constantly improve, constantly innovate, concentrate on sales and revenue, and manage your cash flow. These business basics are essential to any company. To be a successful entrepreneurial company, never settle for failure. Learn from mistakes and move on smartly.

To be entrepreneurial is to embrace failure, to learn from failure, to improve and create even more loyalty among customers, employees and investors, based on constant innovation and improvement, within the crucible of failure. Entrepreneurial success is only to be gained by 100% perseverance, followed by another 100% and another and so on.

 

 

---

Christopher Paradies, Ph.D.

Registered Patent Attorney

Board Certified Intellectual Property Attorney
Fowler White Boggs P.A.
501 E. Kennedy Blvd, Suite 1700
Tampa, Florida 33602
Direct: 813 222 1190
Fax: 813 229 8313
www.fowlerwhite.com

 

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Inherent and But For Materiality

Inequitable conduct defenses are being retooled after a recent decision by the Court of Appeals for the Federal Circuit. See 08-1511.pdf on http://www.cafc.uscourts.gov/. Therasense and Abbott won their appeal of a district court finding of inequitable conduct, but the appellate court took this opportunity to adopt a new standard for materiality.

The Court of Appeals for the Federal Circuit has changed the materiality standard for acts of omission before the patent office to "but for" materiality, while apparently adopting "inherent materiality" standard for sufficiently "egregious" affirmative acts, such as fraudulent affidavits and schemes to defraud the patent office. However, a "sliding scale" of materiality and intent is rejected by the entire panel. How will "egregious" affirmative acts be distinguished from affirmative acts that are not egregious? To be determined, if the United States Supreme Court allows the majority opinion to stand long enough for egregiousness to be litigated.

How To Be An Entrepreneur

1. Be honest with yourself, your investors, your employees and your customers.
2. Know your business better than anyone, and know your customers best.
3. Have a product or service that your customers need.
4. Manage cash flow; seek early sales and revenue; always innovate and improve.
5. Leave customers wanting more, but don’t make them wait too long.
6. Embrace failure:
• an uncompromising teacher;
• a requisite step for innovation;
• a crucible for character.
7. Work harder than anyone; and
8. Selflessly lead your team to achieve timely business goals, notwithstanding inevitable failures.

Entrepreneurs fail, sometimes early and often. Honest entrepreneurs embrace their failures, learn from their failures, innovate and improve products and services based on their failures, and take ownership of their failures, without excuse. An entrepreneur knows the business and inspires others, within the crucible of failure, to rapidly retool and redirect efforts toward success. Life and business are uncertain. However, attracting new customers, while keeping existing customers loyal and satisfied, leads to a predictable revenue growth. The sigmoidal curve, above, illustrates a statistically predictable exponential rate of growth, early, and eventually market saturation.

The slow growth during a start-up phase and exponential revenue increase during a rapid growth phase is a predictable pattern for entrepreneurial businesses. Work hard, know your customers, have products or services that customers want, deliver goods and/or services that leave customers wanting more, constantly improve, constantly innovate, concentrate on sales and revenue, and manage your cash flow. These business basics are essential to any company. To be a successful entrepreneurial company, never settle for failure. Learn from mistakes and move on smartly.

To be entrepreneurial is to embrace failure, to learn from failure, to improve and create even more loyalty among customers, employees and investors, based on constant innovation and improvement, within the crucible of failure. Entrepreneurial success is only to be gained by 100% perseverance, followed by another 100% and another and so on.

Attorneys Fees and Costs in Exceptional Patent Cases

35 U.S.C. § 285 provides for attorneys fees and costs, under exceptional circumstances in a patent litigation. This section must be interpreted against the back-ground of the Supreme Court’s decision in Professional Real Estate Investors, Inc. v. Columbia Pictures Indus-tries, Inc., 508 U.S. 49 (1993). The right to bring and defend litigation implicates a party’s First Amendment rights. Therefore, allegedly frivolous conduct can only be sanctioned if a lawsuit is “objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits.” Id. at 60. “Only if challenged litigation is objectively meritless may a court examine the litigant’s subjective motivation.” Id. In determining whether a particular litigation is “exceptional” under § 285, the relevant standard is set forth in Brooks Furniture Manufacturing, Inc. v. Dutailier International, Inc., 393 F.3d 1378 (Fed. Cir. 2005). An award of attorneys’ fees is permissible “when there has been some material inappropriate conduct related to the matter in litigation, such as willful infringement, fraud or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation, conduct that violates Fed. R. Civ. P. 11, or like infractions.” Id. at 1381. A court must find both (1) that a litigation was objectively baseless and (2) was brought in subjective bad faith. Id.; see also Wedgetail Ltd. v. Huddleston Deluxe, Inc., 576 F.3d 1302, 1304–06 (Fed. Cir. 2009) (refusing to find patentee’s unsuccessful case exceptional under Brooks Furniture).

According to the Court of Appeals for the Federal Circuit in a recent decision in iLOR v. Google, an “…infringement action ‘does not become unreasonable in terms of [§ 285] if the infringement can reasonably be disputed,” citing Brooks Furniture, 393 F.3d at 1384. The patentee’s case must (1) have no objective foundation, and (2) the plaintiff must actually know this. And both the objective and subjective prongs of the test “must be established by clear and convincing evidence.” iLOR citing Wedgetail, 576 F.3d at 1304.

Furthermore a “presumption that the assertion of infringement of a duly granted patent is made in good faith” exists. See Id. citing Brooks Furniture, 393 F.3d at 1382 (citing Springs Window Fashions LP v. Novo Indus., L.P., 323 F.3d 989, 999 (Fed. Cir. 2003)). The plaintiff’s state of mind is irrelevant to the objective baselessness inquiry. See Id.; Seagate, 497 F.3d at 1371 (“[S]tate of mind of the accused infringer is not relevant to [the] objective inquiry.”). “Only after this objective baselessness is established by clear and convincing evidence is the subjective bad faith of the plaintiff at issue.” Id. See Id., stating “…we conclude that a finding of objective baselessness has not been met here, and we need not consider the issue of subjective bad faith.” According to the Court of Appeals for the Federal Circuit, the “question is whether iLOR’s broader claim construction was so unreasonable that no reasonable litigant could believe it would succeed”); citing Dominant Semiconductors Sdn. Bhd. v. OSRAM GmbH, 524 F.3d 1254, 1260 (Fed. Cir. 2008). Under this standard, the defendant’s bears a heavy burden to show that a claim construction is so unreasonable that no reasonable litigant could believe that plaintiff would succeed. Where as in iLOR, the claim construction issues are complex and no summary judgment of noninfringement is granted, it is very difficult to meet the movants heavy burden to show objective baselessness by clear and convincing evidence.

Uniloc Overrules the 25% Rule

A decision in Uniloc USA, Inc. v. Microsoft Corporation overruled any use of the 25% rule as a legitimate rule of thumb in determining a reasonable royalty. Instead, damages experts are left with the Georgia-Pacific factors. In particular, looking at royalties paid or received in licenses for the patent in suite or in comparable licenses and looking at the portion of profit that may be customarily allowed in the particular business for the use of the invention or similar inventions may be the sole legitimate basis for commencing a determination of a reasonable royalty in hypothetical negotiations. It is not clear that this evidentiary ruling will reign in excessive damages based on flawed calculations of unrealistic royalty calculations, but the decision in Uniloc should make it more difficult for experts to hand wave and rule of thumb their way to a reasonable royalty.