Due diligence: no joke?

Among the bits and pieces that float into this Kat's email in-box on Friday afternoon, when the pleasures of the weekend loom large and the effort to concentrate on work becomes disproportionately onerous, is a regular circular from his friends at Glasgow-based IP asset merchants Metis Partners. Unlike most circulars from businesses in the IP services sector, which are fairly unsubtle hints that someone wants your business, the weekly Metis missive consists of nothing but jokes, in which the theme may be determined by some work that Metis is doing or, in weeks when this is not the case, by some topical event.

This Kat has of course heard all the jokes before and wouldn't admit to finding any of them funny anyway, it being well known and long established that felines have no sense of humour whatsoever.  However, this Friday he found, within the Metis missive, a joke which struck a chord with him since it seemed to him to have some genuine relevance to intellectual property management.  The joke runs like this:
A duck walks into a general store and asks the manager:
- "Got any fresh fruit?" - "No."
- "Got any fresh vegetables?"
- "No. We have only canned and dry goods."
The next day, the duck returns:
- "Got any fresh fruit?"
- "No."
- "Got any fresh vegetables?"
- "No. I told you yesterday, we have only canned and dry goods. If you come back tomorrow and ask me the same question, I'll nail your flippers to the floor."
On the 3rd day, the duck walks in and asks:
- "Got any nails?"
- "No."
- "Got any fresh fruit?"
This duck has no
fear of nailed flippers ...
The essence of this tale is clear: if you ask the right question and get the information you need, you can reasonably expect to be able to proceed with confidence.  This is the crucial element of due diligence, in all its guises.  Whether you are considering purchasing another business's IP portfolio and need to know what precisely it contains, or if you are planning a new product and need to know whether it falls within a competitor's IP rights, in each case there is an imbalance in the distribution of information that has to be redressed.  The seller of an IP portfolio knows, or should know, exactly what he is selling but the would-be purchaser, at least initially, does not.  Your competitor knows what rights he holds and will have some idea of their scope and power, but the new entrant to the market may not know what obstacles await him.  Once you ask the right questions, then (assuming you get some reliable answers) you can make your next move, like the duck in the joke who feels safe to carry on in his own sweet way once he learns that the general store manager can't nail his flippers to the floor ...
Due diligence: no joke? Due diligence: no joke? Reviewed by Jeremy on Monday, August 19, 2013 Rating: 5


  1. The same(ish) joke in overly catchy song form:


    (warning, this may be stuck in your head for the rest of the day)

  2. As the duck referred to in this blog post, I take grave exception to the anatomically inept description of my webbed feet as 'flippers'. A flipper is an evolved forearm. Penguins have flippers, as do dolphins and whales. We ducks do not: we have wings, which is why we can fly.

  3. I've found with complex biotech cases that patent attorneys will often take different views on how positive to be about the scope of claims which are possible (reflecting their own experiences and personalities). Added to the uncertainty of the patenting process and frequent naivety of one of more participating parties due diligence can be hilarious.

  4. There is a probably apocryphal tale out of the greap computer patent and antitrust wars of the 1950s-1960s where IBM attorneys negotiated cross-licensing agreements by weight, and were suspected of tipping the scale in their favour by literally inserting a bit of boiler plate between the documents.

    Not sure that there was a lot of due diligence here. ;-)

    But there probably more than a bit of truth in this tale when one thinks about the concept of "patent valuation", about which I am very skeptical.

    On this blog the case of France Brevets was mentioned a while back. (Their web site went offline very shortly after this post was published. Coincidence?) If you go in the registers and actually start reading the documents you can get a pretty good idea of where they picked up their portfolio (hint: not from French public research labs). But what about its value? How and when the patent claims were actually read and assessed for validity?

    Whenever I see in the media (or hear in person) a report vaunting some new technology developed by a scrappy inventor, or some prestigious lab, I usually check up the details in Espacenet and the respective patent office's online register. I am rather often disappointed, and ask myself how those VC really work or think.

    A typical case: just a few days ago on German TV there was an item about a system for recycling motor oil on the spot. A unit is provided that removes most of the metal particles and water from the oil, which is immediately reinjected into the car.

    Sounds great until you look at the application. Quite a few good documents are cited. How much of a monopoly will the inventor get in the end?


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