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Abe Lincoln – A Personal Hero

I was recently tooling on Facebook this week and noticed an advertisement for the movie “Lincoln” that is scheduled for general release next month.  After clicking on the ad, the individuals promoting this film will be happy to know that I was among those converted to a fan of their Facebook page (as of today, numbering around 44,000).  I was prompted by this Facebook ad to write about Lincoln.  Abraham Lincoln is a personal hero for several reasons.  Of course, Lincoln died a national hero in service to the country.  He served at one of the most difficult times in our nation’s history when pretty much no one else wanted to be president.  And he remains well-known for a number of sound-bites from his speeches that continue to resonate with the public today.  However, he’s a hero to me for several other reasons.

First, he was an attorney for most of his career, and as an attorney, handled many humdrum business disputes, and represented a number of clients over the years.  Such a caseload is not terribly dissimilar today for many small and solo practitioners today like me who make an effort to help the clients that come to them.  Second, Lincoln was, for the most part, a failed politician for most of his career.  While he served as a local politician early in his career, his attempts at federal office and as a presidential candidate outnumbered the times he was elected to such offices.  And, for those students of history out there, Lincoln’s prosecution of the Civil War involved a series of hard losses for the union, at the cost of the lives of many.  Lincoln, however persevered in the face of failure.  I think to myself that if Lincoln could manage to bear the tremendous loss of human life (both during the civil war and also in his personal life at the death of two of his children), surely I can manage when I lose a trial or a client decides to not pay his bill!

Finally, Lincoln was able to change his mind, particularly on the major issue of the union: slavery.  Lincoln did not start out as an abolitionist, even though today I think most would agree that slavery is plainly wrong.  I think it took Lincoln most of his life to come to that conclusion publicly, well after the civil war had started.  Even at the outset of war, Lincoln’s argument was not that slavery was wrong, but that states did not have the legal right to secede.  I aspire to be open to changing my mind, even on ideas I might hold quite dear.

I look forward to the movie next month, and hope you will too!

Final Stage 2 Meaningful Use Regulations

The final version of the Meaningful Use regulations, including the final Stage 2 requirements, were published at the end of August.  A copy of the full regulations can be found here: 2012-21050 (you can also get these from the Federal Register’s web site; the final regulations were published on September 4, 2012.)  The final version of the Stage 2 regulations are similar to the interim regulations that were published earlier this year (and discussed in this post).  However, the final regulations made some changes to what’s in store for providers trying to obtain their incentive payments from the interim regulations.  This article is intended to briefly cover these changes.

Core Criteria Changes

First, the Stage 2 metrics for specific Core criteria were reduced from the interim regulation targets.  For example, for provider use of computerized order entry (§ 495.6(j)(1)), the interim regulations for Stage 2 required that 60% of orders be computerized.  The final regulations softened this so that only 60% of medication orders be electronic, leaving the target of 30% for lab and radiology orders where it had been under Stage 1.  Also, the Stage 2 target for electronic prescriptions in the interim regulation was to be 65% of all prescriptions (up from 40% in Stage 1).  In the final Stage 2 regulation, the metric has been reduced to 50%.

There was also a reduction in the final Stage 2 metrics for (j)(13) and (j)(14) requirements for patients that transition care.  The interim Stage 2 regulations had a metric of 65% of patients with transitions of care have a medication reconciliation performed, and for outgoing transitions, the provider prepare a care summary for the receiving provider.  The final regulations reduce this metric to 50% where it stood when these were Stage 1 Menu criterion.

The final regulations also reduced the target metric for the criterion for using electronic messaging to communicate with patients in (j)(17).  The interim regulations had set the metric at 10%; the final regulations reduce this to 5%.

However, there are other changes that may pose some dilemmas for providers.  The interim Stage 2 core criterion include one for patient electronic access to health information.  This originally was a Stage 1 Menu criterion; it becomes a core criterion in Stage 2.  The metric in the interim Stage 2 regulation was that 50% of patients receive timely access to information in their chart (up from 10% in Stage 1).  However, in the final Stage 2 regulation, there is a second aspect to the metric – namely, that 5% of patients actually download information made available to them.  It is not clear how this will be measured by the software, and it is also not clear how providers will cause patients to download the data made available to them.

An additional metric was added to (j)(14) between the interim and final Stage 2 regulations.  Not only must 50% of patients have a care summary prepared by the provider as part of the transition of care, but 10% of these transitions must involve the electronic exchange of data between the two providers.  This core requirement will tend to incentivize referral patterns between providers that are able to send and receive electronic data between them or through regional health information exchanges.  As a result, those that are unable to participate in such exchanges will become increasingly isolated.

Menu Criteria Changes

There were also two changes in the Menu criteria between the interim and final Stage 2 regulations.  First, the target metric for the first menu criterion, access to imaging results in the EHR, was reduced to 10% in the final regulations from 40% in the interim regulations.  Second, a new menu criterion was added to encourage providers to actually document notes into structured data within the EHR system, and setting the metric to 30% of patients seen during the period.

 

Trademarks 101

What are trademarks?

Trademarks are a word or words, an image, or other similar marking that identify the source of a product or service.  Historically, trademarks were used in various aspects of commerce, including marking goods that were shipped so that, in the event of a shipwreck, the owner of the goods could claim them instead of the goods escheating to the crown.  In the age of guilds, individual craftsmen would have a mark they would apply to goods they individually made so that the guild would be able to trace a product back to its individual maker in the event that the good did not meet the standards of the guild.  Trademarks have even been found on ancient goods in the Roman empire.[1]  Marks have been around for a long time and serve an important purpose.

Today, there are numerous trademarks that are almost universally recognized: Coke, Pepsi, McDonald’s, Cisco, IBM, HP, Ford, Facebook.[2]  All of these words signify a particular maker of a product or service – Coke and Pepsi represent their respective soft drink products; McDonald’s represents a certain brand of fast food (as distinguishable from Checker’s, Red Robin, Wendy’s, Burger King, and many others); Cisco, IBM, and HP are all respective computer and software makers; Ford for cars; Facebook for a web site that introduced the world to social media.

Why should I register a mark?

Intellectual Property, of which trademarks are one kind, presents specific challenges for those that want to own and protect it from use by others.  Unlike physical property, which you can touch (and potentially can protect by a lock, fence, or gate), intellectual property is intangible.  As a result, securing IP requires a different action to protect it from infringement or dilution by others.  Prosecuting and securing a registration is an important way to mark out the boundaries of your intellectual property.  The research required prior to registration of a mark helps a prospective trademark owner determine if a proposed mark is already in use, and if so, for what product or service.

This research is important to help a prospective trademark owner from using a mark that infringes on someone else’s intellectual property, thereby avoiding unnecessary litigation.  In addition, a “cleared” mark is more likely to be distinctive as a brand for its associated product or service, which of course is the whole point of having a brand name in the first place – to distinguish your product in the market place.

Registration of a trademark that is in use in commerce also helps a mark owner to protect that mark from use by others without authorization, as the registration itself represents constructive notice to a would be mark user to not use the mark.[3]  In addition, a mark registration helps simplify a trademark owner’s infringement law suit against unlicensed users, as a registered mark carries with it the presumption of validity as to the mark (and five years after registration, the registration itself becomes conclusive evidence of ownership as to the registered mark).[4]  Moreover, registration provides an owner with more remedies than an unregistered mark owner under federal law.[5]

So while registration is not mandatory, there are strong incentives for a trademark owner to register his mark, particularly if you plan to be in business for the longer term with a particular product or service.

In addition, a substantial portion of the value of businesses today comes from a business’ intellectual property, including the brand names used to distinguish its products and services in the market.  In fact, as we move further into an “information economy,” I would conservatively estimate that a majority of a business’ value comes from its intellectual property.  Identifying and protecting a brand name is a key step in the business planning process for any business.  Also, because of the widespread adoption and use of the internet globally, protecting one’s brand name from infringement is more important than it ever has been for business.


[1] See Francis, Collins, “Patent Law,” 5th Edition at page 983 and footnote a that provides further reading material for the history of trademarks.

[2] Marks referenced above are the property of their respective owners.  None of the mark owners are affiliated or suggested to endorse the statements of the author of this article.

[3] See 15 U.S.C. § 1072.

[4] See 15 U.S.C. §§ 1065, 1115(b).

[5] See, for example, 15 U.S.C. § 1111.

Cloud Computing Primer for Attorneys

The following is my presentation file from the annual Maryland State Bar Association meeting.  I was a panelist on the topic of Cloud Computing: Fact or Fiction on June 15, 2012.  My presentation discussed some of the basic issues about cloud computing, such as what it is, the cost savings that may be possible by moving to the cloud, some of the security issues with computing, and some of the ethics issues that practicing attorneys face when making decisions about computing systems.

If you have any questions about this presentation, please feel free to email or call me to discuss them.  Thanks.

Cloud Computing Fact or Fiction

FarmVille, CityVille, This-Ville That-Ville

There are an almost endless number of online games.  Some of them end in -ville.  For that, we have game maker Zynga to thank.  Zynga recently had an initial public offering (IPO), where they became a publicly traded company.  (Zynga, by the way, had set its initial stock price at $10 per share.  Today it is trading down, though the stock had a brief period over $10/share around the time that Facebook announced it would be doing its own IPO later this year.  This impacts Zynga because Zynga itself primarily makes games, like Farmville, to be played on Facebook.)  Farmville and the other games out there used to be grouped under the category of massively multiplayer online games.  I think people stopped using this because the MMOG (or MMORPG for online role playing games) shorthand didn’t spell out anything cool.  And we all have the attention span of six seconds.  I just changed the channel.

What’s surprising is that an online game maker would have an IPO.  It used to be that game makers were local mom and pop shops with a few employees (some of whom were here in Hunt Valley, Maryland, like good old Microprose).  But game makers have become increasingly complex, in some ways like movie production houses.  Games themselves have also pushed the technology envelope.  New games were often an excuse for computer owners to buy a new computer (including yours truly) so that one would have sufficient RAM and a fast enough video card to play the new game du jour.  Given that, the overall online gaming market continues to grow, and the need to access larger amounts of capital to create new games (both in dollars and human capital), it seems likely that more game makers will become publicly traded businesses (or be acquired by existing, large companies like Sony or Disney).

Farmville itself, and its ken, employ several tactics to increase their profit.  First off, activities on Farmville take a certain amount of time to occur.  For example, certain crops on your farm take a variable amount of time to grow, ranging from a few hours (in real time) or a few days.  If you are in a hurry, you can convert real money into game currency, and speed up certain tasks.  In Farmville, it doesn’t appear that there is a way to convert Farmville currency back into real dollars (though this is the case in other systems, such as Second Life).  In addition, there is substantial advertising within the gaming system itself which generates a certain amount of value back to Zynga.  Farmville also has a social component, in that users can become neighboring farmers, and can share resources or tend to each other’s farms.  Farmville attempts to exploit the network effect of allowing users to belong to a virtual community of other game users.  By that I mean that the more users of the game, the more they interact, and the interactions create more users, causing a positive feedback loop that increases the value of the game to its users and Zynga.

There are a lot of online games these days.  Civilization has been working on a release within Facebook.  Ultima (an Electronic Arts game) has operated its own online system on various shards (servers) throughout the world.  Ultima has also recently been advertising a release of its system on Facebook.  EA, by the way, is also a publicly traded company.  Ultima itself has been available for a long time (I have fond memories of trying to complete Ultima III on an old PC).  Blizzard’s World of Warcraft, along with dozens of others, are out there.  For WoW users, ebay.com lists in-game items available for purchase with real money.  In fact, there have arisen a number of game “sweat shops” where employees work on building up inventory for various online games to offer those virtual items for sale for real currency.  As an industry, it appears that these games are here to stay.

The interesting question is whether online computer gaming can be applied within the regular business world.  Gamify.com seems to think so.

Klout and You

Klout is an online influence metric.  The site gathers information from your twitter, linkedin, facebook, google+, instagram, and other online social media web sites, and calculates a score of how your online postings influence others on the good, ole interweb.  This is an interesting metric because, if you are trying to have an impact on other users, you can experiment and see if your Klout score improves or declines.  Having a metric is helpful because the internet can be a very large echo chamber, with no outside way to measure if all the bouncing around off the rocks has any actual impact on your readership.

Try Klout out yourself and see what your current score is.  See how posting more content on various social media web sites impacts others that may follow what you are posting.  Where Klout looks for its scoring is also interesting – you might investigate whether you should join one or more of those web properties.  For example, I do have a google+ account, but rarely spend a lot of time with it.  There are a number of people that have added me to their circles and post content on google+, but I don’t spend too much time on it.  However, I thought I would check it out today.  The Dalai Lama posted a comment that we ought to use the time we have in a meaningful way.  Nice.  If you aren’t using social media to get out your message, maybe now is a good time to start doing something!

Our Conflicted Love Affair With Apple

America, and probably much of the world, loves Apple.  The company’s stock price recently has exceeded $600 per share and its market capitalization is around 1/2 of a trillion dollars.  We buy millions of iPhones and iPads, and i-This’s and i-That’s.  But there is another side to Apple and probably many of the brands that we buy in the U.S.: China.  Oh, how conflicted we are about our life’s love!

Mike Daisey has been making the rounds telling of woes he claims to have personally observed in the manufacturing center of China for Apple products.  The only problem is that Mike’s story involves a little dramatic license because he has a larger agenda which, by the way, is not journalism.  On the other hand, factories in China that make Apple products, such as Foxconn‘s, actually have blown up here and there, killing workers and causing injury to others.  Apple has hit back in recent months with assertions that it has created jobs in the U.S. directly and indirectly through supporting industries.  But there is a simple equation in all the noise: Apple makes its products outside of the U.S. because this makes commercial sense.  Part of its ability to trounce the tablet market is that Apple has negotiated larger volume, longer term, and lower-cost component parts contracts with particular suppliers because of its overall market volume.  And, of course, Apple is cool (or a cult, depending on who you ask).

As a result, Apple products remain priced so that we can buy them and Apple continues to make a healthy profit margin, in part fueling an increase in the share price of Apple from its 2002 price of under $60/share (though it probably helps that Apple is also planning to offer a dividend with all the billions in cash it has on hand, and that Apple is also planning some kind of share buy back).  Factory conditions in other countries are a problem, just as they have been in the United States.  Safety, wage and hour rules, and employee benefits do increase the cost to manufacture goods.  The question for us, though, is should we support subcontractors that avoid these costs so we can buy cheaper products at home?  Is such a business model sustainable?  What do you think?