Boutique Law Firms, Old People, Small Law Firms

Beyond Biglaw: Gray Innovation

Intellectual property firms of all sizes would do well to develop marketing strategies targeting “senior” innovators; they can often be great clients to work with, as columnist Gaston Kroub explains.

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Beyond BiglawMany of us have a tendency to think that inventions spring from younger minds. Plenty of younger inventors have made their mark, but forgetting that older people can innovate as well is a mistake. In fact, one of the surprising, but welcome, aspects of our practice is how often we get to interact with “senior” inventors. As with all clients, we appreciate our work on their behalf, and actually find it particularly rewarding for a variety of reasons. In my estimation, intellectual property firms of all sizes would do well to develop marketing strategies targeting “senior” innovators, as they can often be great clients to work with.

Firms big and small tend to consider “startups” as desirable clients — especially if the startup actually has the ability to pay for services. But not all startup clients are in that position. For whatever reason, however, there is a temptation to assume that startup clients will “eventually” be able to pay, which often leads to firms taking on more risk in terms of starting work for such clients.

With older clients, the financial picture is often a starker one – either they are independently wealthy with the ability to pay, or need you to work on contingency. In the latter case, it is easier to evaluate the case or the project purely on the merits with older clients. In contrast to evaluating contingency projects for startups, with older clients you are unburdened by the expectation you will be working for a client who will one day fall into the ability to pay you. As with any engagement, however, it is important to be clear about who has input into the strategic direction of the engagement, as well as settlement authority or input. At any given point there may be multiple parties with such input, whether it is the original inventor or their company, the contingency law firm, and perhaps a litigation funder or other investor.

If the older client is able to pay, it is often because they have been successful in business at some point, and as such are usually very clear about their objectives. Getting clear direction from the client in that way can create a favorable dynamic, as unlike with some startups, there is less of a need to satisfy the whims of other parties, such as investors.

At the same time, it is often the case in the IP world that clients with valuable patents may have been unsuccessful in business for reasons outside of their control, and simply need the right partners to help unlock the value of their surviving assets. Because of the nature of business cycles relative to the time necessary to build a robust patent portfolio, these types of clients tend to be mature business owners, rather than startups. Working with such clients can be very satisfying, especially if there are successful results obtained early on in the process.

old man inventor scientist professor elderly innovatorIn order to get those successful results, managing communications between all the stakeholders is essential, while being sensitive to the “personal element” of the matter – especially when dealing with an older inventor. When dealing with older inventors (perhaps more so than with younger clients), it is very important to communicate realistic expectations with respect to the legal process, both in terms of advising as to a realistic amount of time that the engagement will take, and with respect to a realistic recovery. Irrespective of whether the client wants to unload their patent portfolio, enforce their patents in litigation, or attract funding to their business, things take time to develop. Older clients may feel more of a “rush” to see things through, and it is important for their lawyers to be honest about what is feasible within a given time frame.

Similarly — and particularly in an area like intellectual property, where patent values have declined quite severely in many cases — it is important to be honest with the client about a realistic value for their assets. The same assets that could have gone for millions just a few years ago may now be worth a small fraction of that (or if a business method patent, worth zero thanks to Alice). It can sometimes be a challenge to reorient the client’s expectations to the new reality. But it must be done, or the engagement will most likely fail.

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Additionally, many older clients bring with them experience dealing with law firms. They tend to have strong feelings about whether they were treated well or poorly by those firms. It is important for the firm considering whether to work with that client to listen carefully to statements made about prior firms, especially if the client has negative things to say. Sometimes, the client really was mistreated before, and has a sensitivity to certain lawyer behaviors that the new firm can easily avoid repeating. Other times, the client is the difficult one, and the firm should proceed cautiously. At a minimum, it can be helpful when dealing with older clients to consider their prior experiences with the legal world, and adjust your behavior accordingly.

Ultimately, a large percentage of the world is aging, and approaching or living their retirement years. Even though those people are retired, there is no reason to believe that this cohort will cease innovating. In fact, older people will continue to invent things to “help themselves out” in an increasingly technology-driven world. Patent firms would do well to court these “gray innovators,” and older clients who already have sizable patent portfolios, while being sensitive to the unique sensitivities that can arise when representing them.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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