Building a Business or IP Strategy? Be Strategic with your Strategist

Make sure to ask the right questions, and get the real answers they probably won’t tell you.

Here’s the first in a short series of questions taken from multiple actual “patent strategy” engagements with expensive, high-profile East-coast and Silicon Valley law firms who made a lot of money without making a meaningful contribution to the client’s patent portfolio strategy.

Question #1: Where did you learn about legal strategy?

Typical Answer: I studied all types of strategic decision-making for various legal situations in law school.

Real Answer: Law schools don’t teach strategy. Issue-spotting, rule interpretation, and verbosity are not strategy.

Question #2: How do you define legal strategy?

Typical Answer: We help you achieve the best legal result for each situation.

Real Answer: Strategy is in the high-level decisions leading to sustainable competitive advantage, not the intermediate outcomes. When a client already knows the outcome they want, the attorney’s role switches from strategic to tactical.

Anything that is presented as legal strategy, without reference to the overall business strategy and, in particular, the specific competitive advantage of the business is not strategy.

Question #3: What do you need to get started?

Typical Answer: Give us access to your portfolio (e.g., patents, trademarks, contracts, etc.) so we can review it and give you our strategy recommendations.

Real Answer: Strategy looks forward, not backwards. A historical review might inform the strategy, but only if it isn’t already outdated information. Oh wait, your historical data is outdated, by definition, and has limited value other than baseline markers.

Unless you want to keep achieving the same results, your historical actions and results only give you metrics to surpass in the future.

Past performance rarely helps you understand how to beat past performance, unless you add external or intuitive insights that aren’t apparent in your past performance.

Question #4: Do you have experience doing this for other companies?

Typical Answer: Yes, we have extensive experience with similar technologies that will help us provide you with everything you’ve requested. If we need anything else, we’ll connect with your legal team.

Real Answer: Actually, our experience with similar technologies is only tangentially applicable to your situation. We need extensive business information from your executive team, because your legal team probably doesn’t have all the information we will need (for the exact same reasons).

Don’t let the mystery and lack of clarity around the concept of “strategy” cost you from getting actual strategic advice and expertise. Make sure you ask qualifying questions. Then compare the answers your getting to the typical answers above. If you notice similarities, take the necessary time and effort to keep looking for the strategist who will actually help you with your strategy.