Baer Business Law – Greater Philadelphia Area – Intellectual Property Law – Business Law – E Commerce – Contracts – Trademarks – Copyrights

I just finished an article for SearchCompliance.com, one of the sites I write for as a legal contributor, about the November 9 oral arguments before the Supreme Court in the Bilski v. Kappos case, which will determine whether and to what extent business methods are still patentable. Yes, the Bilski case I’ve been blogging about ad nauseam for weeks. Instead of rehashing the same material in a separate blog piece, I’ll post a link to that article here once my editor is done with it.

Based on my reading on the oral argument transcript (available here), the long and short of the matter is that Bilski’s patent application is deader than Jacob Marley, but business method patents and particularly software patents (as well as patents for medical diagnostics) should live to fight another day. Expect the Supreme Court to take a more lenient approach than the Federal Circuit’s machine-or-transformation test (where patentability is limited to inventions that (1) are tied to a particular machine or apparatus, or (2) transform a particular article into a different state or thing), but also expect to see some sort of requirement that process patents must be based in “science or technology” or the “technological arts” — whatever that means.

Okay, here endeth Bilskipalooza. Moving on to matters of a more holistic nature, it’s Christmas in historic Philadelphia, and the quaint Georgian and Federal row homes of Society Hill are garlanded with evergreen and starry white lights. The nation got some really good news last Friday morning: according to the U.S. Department of Labor jobs report for the month of November, only 11,000 jobs were lost (the fewest since late 2007), and the national unemployment rate ebbed to 10% from 10.2% in October. Weekly new unemployment claims have been trending downward for months and are now hovering in the 450,000s (as compared with a peak of over 700,000 per week earlier this year). The recession proper has ended, and the economy is now growing for the first time since we started down the rabbit-hole in December 2007, a descent accelerated by the collapse of Bear Sterns in October 2008 and the seizing up of the credit markets.

Yes, yes, yes, the pundits and economists caution us that the recovery will be “long, slow and painful,” “long and choppy,” choppy and excruciating, choppy and weak, etc., etc. But Friday’s jobs report is a wonderful Christmas present that should raise our spirits — the day will come very soon when we see the first new jobs being created on the net (and on the ‘Net too!). Sure, there will still be 15,199,999 jobs to go before we’ve dug ourselves out of the hole. But we’ll get there and then come roaring back — different, thriftier, cannier and less credit-addicted than we were before.

Also more entrepreneurial. And that is the point of this economic digression. Amid all the broken dreams, the Great Recession has birthed a wondrous paradox — an explosion of new business startups in the rubble of fallen titans and bludgeoned corporate workforces. Partly because of the lack of jobs but also, critically, because of the dreariness and insecurity of the jobs that are out there, more and more people are taking control of their economic destinies and launching the business that they only dreamed about in the best of times.

I’m one of those folks. I’ve done my time in big law firms and been priest and confessor to fidgety executives as corporate counsel, but my goal has always been to counsel creative thinkers pioneering new media, platforms and technologies and be the lawyer sitting next to them at the closing table. Operating a legal practice that is entrepreneurial in embracing affordable rates, value-based lawyering and alternatives to the almighty billable hour has enabled me not only to work for entrepreneurs and startups, but to add my small contribution to an evolution that I believe will ultimately elevate the legal profession and help us regain the trust of our clients.

Starting Baer Business Law was about laughing into the maw of the recession. In my very first post on this blog, back in April, I said “To Hell With the Recession” and announced that NOW was the time to start a business. If you’ll forgive my presumptuousness in quoting myself:

“….[T]his business lawyer firmly believes that opportunities for business (particularly small business) abound, and cringing uses up more energy than confidence and is less prudent than informed risk-taking. Fear is a venomous, supremely uncreative force that paralyzes you even as it eats you alive. Economic fears can wear such a deep groove in your mind that you can’t see over or past the groove. But the view can be clarifying. Take a good hard look around. Interest rates are at an historic low. Government bodies at all levels are offering tax benefits and other incentives to stimulate business investment and hiring. Business technology is so cheap it is almost a commodity (a decent printer/copier/fax/scanner costs only $100), and executive centers are offering innovative suites of office solutions to professionals at extremely low prices (a “virtual office”, with access to a receptionist, mail drop, and voicemail pushed out to you via .wav file, together with conference room space as and when you need it, costs only $200-300/month!). More generally, if you can start or maintain a business now, when things are at their worst, and establish toeholds with customers that you can nurture into “sticky” relationships (i.e., relationships that are loyalty-based or inconvenient to sever), and you keep your operations scalable, you will rise with your customers when growth returns and can ride the wave all the way up…. We all just need to get out from the under the bed, allow ourselves the luxury of a collective sigh, and clear-mindedly assess the opportunities that are out there. For these reasons, Baer Business Law strictly enforces a no-recession policy.”

Many of my clients, I’m proud to say, are laughing with me at defeat and despair. Starting a web marketplace for photo advertisements out of your house, for example, may seem like a flimsy liferaft for a young couple, but those clients of mine who have done things like this radiate an imagination and dynamism that, had these qualities been possessed by GM, would have saved that ossified mid-20th century relic the humiliation of having to crawl supinely to the government teat.

From small things big things come

Now that the economy is growing again and we — the small businesses and startups that are our economy’s creative engine — are poised to start the immense task of getting America back to work, I renew my call that the time to start your business is here. Do it now, and don’t hold back. Do it here in Pennsylvania — the process and tax structure are fairly simple, and you can file your LLC documents online for only $125. Trademarks and copyrights are also cheap, particularly at Baer Business Law. Blast your name and logo across multiple social media platforms, let your networks be your roots, and may the coming dawn raise you up.

Merry Christmas, Happy Hanukkah, and God bless the United States of America!