Running the Table

shutterstock_69556762 (2)It’s that time of year. Time to look back over the past twelve months and consider things accomplished and areas for future improvement. Like everyone else, I’ve got a number that come to mind in both categories.

In terms of professional accomplishments, there are many of which I am proud; however, one stands out and that is Adobe’s success in fighting patent trolls.

While we had hoped that we would finally get Congressional action on patent litigation reform in 2014, we were once again disappointed. But, our strategy has never been to rely on Congress (please note my editorial restraint). Instead, over the last year, Adobe has been consciously investing in fighting these cases as aggressively as possible rather than considering them a “cost of doing business” and negotiating a quick settlement.

It’s a strategy not without its costs. We spend millions of dollars defending these lawsuits. So, why do we do it?

First, because it’s the right thing to do for our stockholders, employees and customers. Adobe is one of the most innovative companies on the planet. Diverting resources and dollars from innovation to paying to settle specious patent claims runs against who we are as a company.

Second, because we believe the odds are on our side. We spend significant time and effort investigating these patent claims. When we decide to fight them, we do so with the conviction that we will prevail at trial.

And, third, because this a long-term strategy. One which we believe over time is the only way patent trolls will have an incentive to think of ways to add value to society, rather than killing investment in job creation.

With this in mind, I thought I’d share how we did in 2014.

TQP Development. Between 2008 and 2012, a patent troll named TQP Development filed lawsuits against more than 200 companies, including Adobe, claiming infringement of TQP’s patent encryption technology. (By the way, I’ve always wondered about their name as we have yet to figure out what these folks “develop” other than lawsuits.)

In many of these lawsuits TQP was represented by a law firm that also represented Adobe during this same period. Under legal ethical rules this creates a conflict of interest. Consequently, we were successful in getting the firm disqualified from the case.

Result: Perhaps because they were not excited about finding another law firm, in March 2014, TQP settled the lawsuit without Adobe or its customers paying them a dime.

Ingeniador. On their website, Ingeniador claims to be “a worldwide team of scientists, engineers and entrepreneurs pioneering leading-edge research in mobile, e-commerce and healthcare technologies.” Sounds great, but if it “quacks like a duck”… it’s probably a patent troll. And, indeed, Ingeniador sued Adobe in the Eastern District of Texas, accusing our products of infringing a patent relating to, among other things, web-based editing and publishing of files using a network of client computers. Given that Ingeniador is headquartered in Puerto Rico, and Adobe in San Jose, we didn’t think it made much sense for the trial to be held in Texas. The court agreed with us and, in March 2014, moved the case to Northern California.

Result: Evidently, Ingeniador was not looking forward to a trial in Northern California because one month after the case was transferred, they settled the case without Adobe or its customers paying them a dime.

Select Retrieval. In 2011, another patent troll, Select Retrieval, filed lawsuits in numerous jurisdictions, including Delaware, Oregon, California, Florida, Illinois, Maine and Texas alleging infringement of their patent covering a way of retrieving and displaying information from a database. In these lawsuits, Select Retrieval sued dozens of companies, including eight Adobe customers based on their use of our products. Adobe stepped in and provided full indemnification of our customers and we successfully obtained stays in some jurisdictions while actively litigating on their behalf in others.

Result: Although some Adobe customers chose to settle before we joined their cases, in May 2014, Select Retrieval settled the remaining cases without Adobe or any of its other customers paying them a dime.

CSP. In April 2012, another patent troll, CSP, sued Adobe in the District of Delaware, accusing a number of our products of infringing a CSP patent relating to software that provides product activation. Unfortunately for CSP, Adobe had a license to the asserted patent, and had very strong non-infringement arguments. Undeterred, CSP refused to dismiss the case and Adobe aggressively pursued its defenses.

Result: In July 2014, on the eve of a key hearing in the case, CSP settled without Adobe or its customers paying them a dime.

Anyone see a pattern here?

Tejas. “Tejas” is another word for Texas. It is also the often overlooked fifth album by hirsute rockers, ZZ Top. Unfortunately, what I am referring to here is the name of a patent troll who on New Year’s Eve, 2013, began suing Adobe customers – ultimately five in total – in the Eastern District of “Tejas” alleging that that their use of an Adobe product infringed a Tejas owned patent. In response, Adobe went on offense filing a motion for declaratory judgment of non-infringement action in Northern California and aggressively pursuing discovery in the Texas case.

Result: With upcoming discovery deadlines approaching, in October 2014, Tejas settled the case without Adobe or its customers paying them a dime.

Seriously, do you see the pattern? Come on, concentrate.

Digital Reg. of Texas. In April, 2011, Digital Reg. sued Adobe in the Eastern District of Texas accusing a number of our products of infringing patents on software activation. Digital Reg. is a litigation-inspired entity with no connection to the State of Texas other than being formed as a Texas limited-liability company for purposes of acquiring patents used in lawsuits against eight out-of-state defendants. Because of Digital Reg.’s tenuous connection to Texas, and because of Adobe’s strong connection to California (where we are headquartered), the Eastern District of Texas transferred the case to the Northern District of California in March 2012.

Result: In September of this year, a nine-day jury trial was held in Oakland, California during which Digital Reg. claimed damages of in excess of $30m. The jury decided in favor of Adobe finding there was no infringement and that the plaintiff’s patents were invalid. What’s nice about this result is that if the decision is affirmed upon an expected appeal, Digital Reg. will be unable to use these patents against any other company in the future. And, again, we didn’t pay them a dime.

There is one more lawsuit I’d like to discuss, but for a variety of reasons, I’ll keep the names of the other parties confidential. In this case another patent troll sued one of our customers in 2013, asserting three patents. Our customer chose to fight the case and we supported their decision and accepted indemnification and took on the defense of the patent directed to our DRM encryption technology.

Result: This fall, after a 10-day trial, the jury returned a verdict finding that Adobe’s technology was not infringing.

With the help of our great Adobe legal team and business partners, and talented outside counsel, we ran the table with a positive outcome in every case. Not a bad year.  And, we’re hoping that sharing these examples will encourage other companies to take the same approach.

1 Comment

Filed under Uncategorized

IMHO

Blocks

Forgive me in advance, but I’m going to go on a bit of a rant here. I simply can’t take it anymore.

One of the little discussed aspects of corporate culture is our affinity for using acronyms*. I’ve worked at a number of different companies and they all had this in common. I used to think it was just a tech thing – some subconscious desire to reduce the spoken word into linguistic “bits”, but my counterparts in retail, manufacturing and communications assure me it is the same in their industries.

A couple of years ago I came across an article that indicated the first recorded use of “OMG” was in a letter from British Admiral Lord John Fisher to, of all people, Winston Churchill in 1917. (As an aside, can you imagine using this expression in a communication with “The British Bulldog” as he was then known? LOL!) With the widespread adoption of texting, Twitter and other social networking, the use of acronyms like this is a trend that is accelerating.

At Adobe we take it to an entirely new level. Acronym usage is so rampant here that an internal market has developed with employees trading lists of company acronyms like they are some sort of corporate Rosetta Stone.

As an example, I recently attended a meeting where we reviewed the performance of a number of our businesses. During one ten minute period, I jotted down the following acronyms that were used during a presentation: “VIP”, “ARR”, “CLP”,” TLP”, “GTM”, “CCM”, “SMB”, “ETLA”, “POSA”, “STE”, “CS6”, “CC”, “EOL”, “STL”,” DPS”, “COGS”, “OEM”, “ROW”, “MD&P”,  “CAGR” and “CCE”. One of the presenters even achieved the linguistic equivalent of running the four-minute mile by using an impressive seven acronyms in a single sentence!

I almost applauded and handed him a towel and a Gatorade.

Upon reflection, however, I realized that I had become distracted from the content of the presentation because I was too focused on trying to understand the acronyms.

And for presenters, that’s a real problem. You put countless hours developing a presentation so that you can inform or influence your audience. That work is wasted if your audience doesn’t understand your message.

So, here’s a novel idea. How about considering the audience you are addressing? Are you certain that everyone in the room understands the acronyms you are using? If not, use the full words or phrase at the beginning of your presentation before you begin using the acronym.

Your future audiences will thank you and your presentations will be far more effective.

Rant over.

g2g – ttyl!

______________

*For you logophiles, I know that the more accurate term is an initialism but I’m going to use acronym in its broadest sense.

2 Comments

Filed under Uncategorized

Five Things From: October

- Helps to explain my extreme dislike of meetings.

- Crossing Wasco off my “places to visit list”.

- The power of art to illuminate history.

- Combine this with this and you get the need for one humongous data plan.

- Those canaries in the coal mine? They’re actually walruses.

Leave a comment

Filed under Uncategorized

Da Vinci (circa 2014)

There is nothing like attending the MAX Conference in Los Angeles to cause my feelings of artistic inadequacy to bolt to the surface. You see, I’m one of those people who lacks any artistic talent. In fact, I’m quite certain that I failed paint-by-numbers in the first grade. So, being immersed in the excitement of the conference left me feeling in awe – and very much out of my element.

If you are one of the world’s millions of creative professionals then you are likely familiar with MAX. It’s an annual event sponsored by Adobe that brings together illustrators, web designers, production professionals, photographers, movie makers and other “Creatives” to learn about new releases from Adobe and, more importantly, to share and celebrate all forms of creative expression.

Much of the excitement this year was generated by Adobe’s announcement of a feature of the Creative Cloud called the “Creative Profile”. This allows anyone, but especially creative professionals, to store their illustrations, videos, photographs, fonts and other artistic assets in a virtual repository that can be accessed from any platform. To comprehend what this means, consider if Da Vinci was alive today.

As a painter, sculptor, architect, engineer, cartographer and writer, Da Vinci would doubtlessly have used his Creative Profile to increase his already prolific output and enhance his impressive creative abilities. One can imagine him walking through Rome creating a color palette on his mobile device with Adobe Color  to be used in one of his paintings, or taking a photograph of the checkerboard pattern of il Duomo di Firenze and using it as “ink” for an illustration using Adobe Brush. It’s not a stretch to see him using Adobe Shape to capture the shapes and vectors surrounding him in Florence and incorporating them in his architectural renderings. Or, perhaps, he would use Photoshop Mix  to take and edit photographs of the Tuscan hillside on his mobile phone to serve as a model for the background of the Mona Lisa.

All of these creative outputs and any others he produced whether through digital illustrations, videos or photographs, would be part of his Creative Profile. Best of all, they could be accessed from any device, whether desktop computer, tablet or mobile phone, allowing Da Vinci to focus on what he did best – creating.

One of the biggest challenges for Da Vinci and other Renaissance artists was finding patrons. For Da Vinci this meant a dependency on just a few wealthy families, namely the Borgias and Medicis. As a result, for much of his life, he toiled in poverty. Today, Leonardo would use the Behance platform to showcase his portfolio and receive feedback about it from the global creative community. More importantly, his Behance portfolio would allow him to be discovered by agencies seeking artistic talent leading to greater employment opportunities. A marketing department, for example, seeking to create a new corporate logo with the feel of Da Vinci’s Vitruvian Man, would be able to quickly identify that work on Behance and contact Da Vinci to commission a project.

davincishutterstock_21574306

On the second day of MAX, we listened to a number of artistic professionals discuss how they use their art to inspire, like the moving photographs of Ami Vitale; push boundaries in conventional thinking, as with the provocative illustrations from Jason Seiler; or launch a global movement, as what documentary film maker, Lee Hirsch, has done in the fight against bullying. There wasn’t a dry eye in the convention center during that presentation.

And, all I can draw are stick figures.

The day was capped off by what we at Adobe like to call “Sneaks.” You can think of these sessions as innovation speed dating. Select members of the Adobe engineering community are given five minutes in front of a live audience to showcase a feature or product they are working on. The crowd gets a preview of possible things to come and the innovator gets immediate feedback in the form of live audience reactions. It’s always my favorite event of the conference and, judging by the crowd reaction, others felt the same. Have you ever taken a photograph on a hazy day and wished you could click a button and make it clear? Look for the “defog” capability coming to Photoshop CC. Or, check out Shape Shade to see the mind-boggling ways that shapes can be manipulated on a table with just your fingers. How about taking a photograph of a skyline during the day and wanting to see how it would look if it was taken at sunset? Or editing seamless transitions in videos of people who speak with lengthy “uhms”, “ahs” and other pauses. These are just a few of the previews we saw at this year’s Sneaks.

In the end, no one knows what Da Vinci would do if he were alive today. But, I’m quite certain he would be a member of the Creative Cloud.

And, also, an employee of Adobe.

1 Comment

Filed under Uncategorized

A Polysynthetic Land

Greenland is a place of many dialects. Kalaallisu is spoken in the west; Tunumiisut in the East; and Inukun in the north. All three are very different – so different that a Greenlander from Nuuk, the country’s capital, would find it difficult to understand someone from Thule, in the north.

Regardless of dialect, as a recent visitor, I found the language impenetrable. The Greenlandic language is polysynthetic, meaning that words are created by adding multiple affixes. This results in long words that overflow with syllables – for example, “Paasisinnaannginnakkummi” (“I don’t understand”).

If you have ever wondered if you can sprain your tongue, try speaking Greenlandic.

Despite the danger of injury for foreigners attempting even basic phrases, the polysynthetic nature of the language allows for nuance and subtlety absent in other languages. In this respect it is a reflection of the country itself, a place where nothing is quite what you anticipate. This thought initially occurred to me when I was looking out the window of the hostel where we were staying on our first evening in the small community of Tasiilaq. At almost midnight, the sky was still bright, presenting a lustrous panorama from the hillside above the bay. Reverberating from the water below was the sound of a child’s joyous yelling as she was pulled behind a boat waterskiing – on thirty-degree water.

Nothing is as you expect in Greenland.

B12

Along with two of my children, a friend, and a group of others adventurers, we kayaked and camped for two weeks exploring the seemingly pristine fjords and small colorful communities of the world’s largest island. Approaching from the water we discovered picturesque towns with buildings painted red, green, blue, and grey reflecting the country’s history of Danish influence. In most, drying fish hung from the rafters of porches like Chinese lanterns; occasionally, a polar bear skin would be stretched over a clothesline curing in the sun. But cultural influences of the west abounded as candy wrappers, plastic bags, and omnipresent empty Tuborg beer cans littered the landscape around these towns. (But what do you do with trash when you don’t have refuse pickup or even a dump?)

Again, I found that nothing is what you think in Greenland.

The evidence of climate change was striking. We would paddle for miles down fjords framed by towering ridges filled with countless glaciers. But most had receded 40 – 50% of the distance from their terminal moraines. Looking at the glaciers on our ten-year old topographical map, it was apparent that much of this decline has occurred very recently. For us, it was disheartening to see the rapid degradation of this spectacular wilderness. Yet, when I shared this sentiment with Axelie, an English speaking local, he had a different reaction. “The melting ice cap is good for us. I’m going to strike it rich in gold mining. As the ice recedes, I’ve found some good places to stake my claims.”

Yet another example of how Greenland defies expectations.

B5

Over the course of our visit, we saw only a handful of ringed seals. Where were all the sea mammals? On previous kayaking trips in Alaska and the Canadian Arctic, seals, walruses and whales were a daily sight. In Greenland, the waters were silent. Axelie provided an answer: “The animals and people used to live in balance, but now we have speedboats, snowmobiles and long range rifles.” We witnessed this first-hand when two large boats retrieved us and our gear at the end of the trip. As our Greenlandic drivers drove through the fjords threading between ice floes, one of them spotted a whale spout and we came to a stop to watch. As we did, I noticed both drivers locking in the GPS coordinates and sending frantic messages. It wasn’t a leap to imagine a stream of hunters descending on the area after we were gone.

Nothing was as I expected in Greenland.

From escarpments above the fjords, the water provided an impression of quiet and solitude. Perfect stillness except endless miles of icebergs sailing slowly past pushed by the mild ocean breeze. Rarely have I experienced such silence. Viewed from a kayak, however, everything was different. For days we wove through icebergs of every shape and size imaginable – castellated points reaching hundreds of feet in the air; giant arches; an ice blue Pantheon; an aircraft carrier; an enormous toadstool. But the view was far from silent. Instead, we were bombarded with a cacophony of sounds: icebergs splintering and shattering with a booming sound like a firing cannon; water cupping under ice shelves; the sound of ice melts dripping into the water. All of this against the constant backdrop of small floating bits of glacial ice cracking and fizzing as it released air that had been trapped from a time when dinosaurs roamed the earth.

B14

If’ you’re interested in reading more about Greenland, here are a few books I highly recommend:
– Arctic Adventures/The Arctic Year by Peter Freuchen;
– This Cold Heaven by Gretel Ehrlich
– An African in Greenland by Te’te’-Michel Kpomassie.

Here are some more photographs of Greenland  that you may enjoy. (And, if you do, help my son to get off the “Daddy Dole” and earn money for college by going to the products page and purchasing something.)

Qujanarsuaq (Thank you)

2 Comments

Filed under Uncategorized

Reinventing Law School

(I’m posting an op-ed that appeared in the Huffington Post on September 18, 2014. I  promise that I will get off my butt and start blogging again in the near future.)

Law school was once considered a ticket to prestige, job security, and career satisfaction. Not anymore. According to a new analysis by the National Law Journal, applications to U.S. law schools have declined by more than 37 percent since 2010.

It’s easy to see why. Today’s law students face a contracting job market, massive student debt, stiff competition from abroad, and low job-satisfaction rates.

Law schools must rethink their approach. Like medical schools, they should offer specialized, practical training that ensures students are career-ready the day they graduate.

The nation’s current crop of aspiring attorneys has plenty to worry about. The average student at a private law school will graduate with about $125,000 of debt. The job market for new lawyers is worse than it’s been in two decades, according to a new report from the National Association for Law Placement. In fact, the employment rate for recent graduates has fallen for six straight years.

Making matters worse, most law students leave school ill-prepared for real-world work. For instance, a second-year law student I mentor loved interning at a technology company this summer. Yet she doesn’t think she’ll be able to get a job there, as her school doesn’t offer the specialized education she needs to even apply.

Her problem is hardly new. When I graduated from Santa Clara Law in 1984, I had no training in areas like intellectual property law, contract negotiation, or SEC filings. And I received no training that would help in the business world, like how to deal with HR disputes or handle basic accounting. I was, however, required to spend countless hours studying the intricacies of community property law, civil procedure, and countless other subjects that had little relevance to my chosen career.

Fortunately, I was able to learn on the job. But in today’s environment, most companies are reluctant to invest in the extensive training that even the most brilliant new lawyers require. Instead, many recent grads end up at established law firms, with the hopes of receiving more specialized training and pursuing their real interests once they’ve paid off their loans. Such transitions, however, are hard to pull off, because attorneys trained at large law firms often require retraining once they come in-house.

Compared to attorneys at big firms, in-house lawyers need to understand business basics, be comfortable with risk, and have strong communication skills. Elaborately-worded, five-page emails might be fine at a big law firm trying to cover its bases. But when you’re answering a legal question for a time-crunched CEO, brevity and clarity are far more important. The Digital Age has also hurt job prospects for recent U.S. law school graduates, as legal work has become increasingly portable. Today, companies are able to move work to more cost-effective locations. Some work can even be handled abroad.

Fortunately, law schools can address these challenges by adopting a more practical, career-specific approach to training. Consider the “ReInvent Law Laboratory” at Michigan State. The program was created, in part, to mix technology into the law school’s curriculum. Today, the Law Lab hosts conferences across the world that have been called “TED for lawyers.” The creators hope that by combining tech and law, lawyers will eventually revolutionize their services to better serve the public. At the University of Colorado, the law school offers a four-week Tech Lawyer Accelerator program. After the program ends, students spend a semester working for a startup. As with Northwestern University, the school is working to integrate law with business and technology.

A revamped American system might take its cue from medical schools. Under this model, second and third-year law students would choose a specialty track focused on classes relevant to working in-house, at a law firm, in the public sector, or at a nonprofit. Students would also spend time with a range of practicing lawyers, learning on-the-job in several subspecialties of their chosen field — similar to the rotations of a surgical resident. At the same time, law schools could offer classes in practical business skills like public speaking, corporate management, or even spreadsheet basics.

None of these proposals will be possible, of course, without dramatic reforms by the nation’s bar associations. Indeed, the bar examination’s emphasis on theoretical issues is a chief reason law schools fail to prepare students for the actual practice of law.

A legal-education overhaul of this sort would leave law students better equipped to realize their professional goals, while also making them far more attractive to potential employers. Until law schools and bar associations recognize the need for reform, legal education will remain a risky investment.

1 Comment

Filed under Uncategorized

Waiting for the Anger to Subside.

I’ve been waiting for the anger to subside.

For much of my career, I’ve witnessed the waste and distraction to American business caused by patent trolls and the burden they place on our judiciary. Despite my sometimes cynical attorney exterior, this year I had genuine hope that the U.S. Senate would finally make the legislative changes necessary to remedy this situation. After all, in an era when U.S. politicians can agree on very little, both the House and President came out strongly in favor of patent litigation reform. All that was left was Senate approval. Evidently the patent trolls were anticipating legislative reform as well. This graph (courtesy of Lex Machina)  shows the number of patent cases filed in Federal Court this calendar year. See that spike? Those are patent lawsuits filed immediately before the cutoff date for retroactive application of the fee shifting provision contained in the proposed Senate legislation.

2nd graph

But, in the end, the Senate, after extensive hearings and fact finding, chose not to take action. By doing nothing, the Senate decided that it values jobs for trial attorneys over jobs in STEAM (science, technology, engineering, arts and mathematics) and other areas of innovation.

Senate lobbying by trial attorneys against any type of legislative patent reform was expected.  But, I think many underestimated their influence, especially given the large number of American retail and tech companies that supported the legislation – the signatories to this letter, for example. Also of surprise was the opposition from colleges and universities, many of them public institutions who presumably want to see patent trolls continue to grow as a source for universities to monetize their patentable innovations.

Think about that last nugget for a moment.  Whether through tuition or taxes, we are all funding colleges and universities to educate our citizenry and create employment opportunities. Yet at the same time, many  of these same institutions are selling patents to patent trolls and actively opposing patent reform, and, as a consequence, supporting a system that diverts company resources from funding job creation to litigation defense.  Anyone see a conflict here?

But all is not gloom – far from it. In April, the Supreme Court, unlike Congress, chose to take action. In its decision in Octane Fitness v. Icon Health, the court expanded the circumstances under which a winning litigant can recover attorneys’ fees, helping to end the asymmetry on which patent trolls thrive. Since then a number of courts have taken this decision to heart and begun awarding fees. For my fellow in-house practitioners, make sure to read Judge Cote’s Opinion and Order in Lumen v. Findthebest.com. I’ve never met Judge Cote, but she has become my new judicial superhero.

And, at Adobe, we continue to channel our inner-Churchill (“…we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender…”) with great success. This year we have had four cases in which patent trolls requested a dismissal before trial – and Adobe paid nothing. In one case, we were successful in disqualifying a law firm representing a patent troll because the firm had previously represented Adobe. Then we took it a step further and sued the firm for recovery of our attorneys’ fees – and prevailed. In this battle, law firms need to decide whether they are going support patent trolls or companies. (For similar reasons, we have a policy at Adobe of not employing law firms who also represent patent trolls.)

Last week, I sat through extensive reviews in preparation for two patent troll cases that are scheduled for trial in late summer. In one case, Adobe is alleged as the patent infringer;  in the other, we are indemnifying one of our customers. In both, we are well represented, prepared and looking for our day in court.  If Congress won’t act, it is up to all of us to defend ourselves against these abuses. Patent litigation defense is expensive, time-consuming, and wasteful of resources. It can be tempting to just shell out a few dollars to make the current case go away.  But, for those that can afford it, standing up to the trolls is the right thing to do, and the only path forward.

 

4 Comments

Filed under Uncategorized