Wednesday, December 28, 2011

Peter Drucker 11/13/05

Peter Drucker, whom some have called the father of modern management, died last Friday at the age of 95. I remember reading an interview with him in an early issue of Business 2.0. I spent the day with the magazine at St. Joseph's hospital in Atlanta, while my husband was undergoing surgery for bladder cancer, right in the middle of our internet patent related whirlwind fiasco. I was not so long out of Mommydom, trying to get my legs under me, managing a rapidly changing business, a highly coveted portfolio of intellectual property, an unwell (in more ways than one) husband/boss, and my precious children, all at the same time. I remember that day, stuck in the hospital, unable to use the cell phone (hospital rules) but emailing via my Palm, almost enjoying the fact that everything stood still for that time, that there was nothing for me to fix or do until we were done there and I could go home.

In that interview, Drucker said something that stopped me cold, that I never forgot, that I didn't understand, but that I knew must be right. I'm paraphrasing (because I no longer have the subscription that would give me access to their premium content), but he said that no one ever knows what they're inventing when they invent it. Well, at that time, I was quite sure we knew what my husband had invented, and we knew everyone wanted it and that some wanted it enough to try to take it. It was early in the process. We had one patent issued and a number of others pending. We had very serious enemies, who had masqueraded as friends, pretending to be investors before revealing they were thieves, who were working very hard to cause us real harm, despite our army of attorneys trying to mitigate the damage. Still, I thought for sure, that if anyone knew what our invention was, it was me, because I was the one who, in defense against the onslaught, had devised the series of continuation applications to cover every single aspect of the invention, from how it was made to what it was to the method in which it was used. I knew Drucker was right and I was wrong, but I didn't know how.

The fact is that only the United States Patent and Trademark Office ("USPTO" or "PTO") can tell you what you've invented and it takes them many years (and hundreds of thousands of dollars) to do so. In retrospect, our first patent issued remarkably fast and with an incredible amount of ease. In fact, it was not my husband's first patent. A few years before, my husband had obtained, also with ease, a patent on an earlier, less important invention in the same field at a time when the agency he started was a wholly-owned subsidiary of a larger company, and assigned that first patent to his parent company. What he patented then has been used since, but it appears that the company holding the rights has chosen not to enforce or maintain them, probably finding the process too cumbersome and expensive.

By the time I was reading, and re-reading, Drucker's words that day at St. Joseph's, we had been cyber squatted, hacked, threatened, stalked (both electronically and in real life), and my husband's career had been essentially stolen and put up on the web as if all of his accomplishments, his entire professional portfolio, belonged to someone else. All of the leads generated by our multi-million piece product launch were hijacked, leaving us holding nothing but the bills. I had been singled out for the most vicious of personal attacks, via email and voicemail, both threats to me and disparaged to others, because I had been identified as the one who was fighting back with continued patent applications. I knew Drucker was right. I just didn't know what it meant.

Of course, looking back from where I now sit, it's clear. The USPTO defines inventions in the United States. They alone can, simply because no inventor has any way of knowing what aspects of their invention have or have not been done before, are or are not considered novel and not obvious to one of ordinary skill in their art, the international criteria for patentability. We knew, in the summer of 1997, that what we were doing was inventive, and we knew that summer, when we saw the staggering results of our beta test, that what we had done was hot, that everyone would want it, but it took many years for the PTO to tell us, by rejecting parts of many applications, exactly which aspects of it had or had not been already done.

The USPTO is a profit center for our government. Every time a patent application is rejected, the inventor learns one aspect of the invention that has already been done or suggested, or has been deemed obvious to one of ordinary skill in the art. After the rejection, the inventor has the opportunity to argue, to defend or clarify, to reapply, of course, with more fees attached, so that the PTO is incentivized to reject applications, generating more fees. Our last patent to issue was rejected five times, until we narrowed the carefully chosen words, with the help of a brilliant and expensive patent lawyer. We visited the PTO personally, numerous times to put forth our argument, and ultimately got our continuation, which, finally, allowed us to force royalty payments by those who had been profiting without compensating us.

We thought he had invented a thing, but we didn't have any idea how many of the ways in which that thing was used were novel and non-obvious, or how it would change our lives, cost us our business and our home, both of which we had successfully maintained for many years, how much it would hurt our children. I don't know if there are any winners in our little fight. We certainly lost the early rounds, but we're still in it. We have some royalty income as it is, and the invention continues to be successful and used in new ways, first online and now relative to wireless communication. We have three patents in the United States, one in Canada and various applications pending, domestic and international. We're broke. I work in another field altogether to make sure we can eat and be in out of the cold and my husband, whose cancer is in remission, lives in another town. Our sons manage to attend college thanks to financial aid, some of which is in the form of loans. We have found out who our friends are, and who, among our families, was there for us, as well as who was not, but it took Peter Drucker to explain it to me, and it took me a couple of years to figure out what he meant. I know now that I am still learning how this invention will be used, because it's still changing. I know now that it took years to figure out what parts of it had never been done before and that there were so many more of those than I could have ever imagined. He was important to this one little life in this one little way, and on the occasion of his death, I needed to mention it.

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