“She has the power to make or break us. It would be great if we get the patent. But if we don’t, it will be a serious problem for the defensibility of our product. How do we increase our likelihood of success?”
A critical issue here – how to negotiate with government entities – requires specialized negotiation tactics. Here are three.
1. Focus on your long-term goal
Years ago I asked a panel of expert negotiators to identify their most successful negotiation strategy. Mal Jozoff, the former President and CEO of the Dial Corporation, shared the following:
The thing I always try to keep in mind in any negotiation is to know what I want at the end of it. And I always make a practice of writing it down – what is victory for me. … Years ago I negotiated the movement of a drug from prescription status to OTC [over-the-counter] status. It became Aleve, the pain reliever that’s sold over-the-counter today. And the negotiations took 15 months.
So my little chart grew into many volumes of twists and turns and legal considerations in a very complicated negotiation with the FDA and another manufacturing company. And it taught me, early on, that if you don’t have in front of your eyes … exactly what you are trying to achieve, you will get less than what you’re after.
Jozoff’s advice is particularly applicable in a governmental context, as government actors must often abide by many unique and complex legal and regulatory restrictions. This puts a premium on being able to persevere and maintain focus on your long-term goals.
2. Consider your counterpart’s individual interests
Some dealing with government entities make the mistake of exclusively considering the government’s interests. Why should the government grant regulatory approval? Is it protecting the public from dangerous products, or incentivizing innovation with patents, or fostering competition through anti-trust decisions?
These are critical. But it’s also critical is to analyze the individual government employee’s interests. How much time and effort will it take the overworked regulator to find good precedent supporting your application? How much pressure is she getting from her supervisor to move things along – especially near performance review time? Who on your team understands the ins and outs of her office and the pressures impacting her?
Bottom line: make it as easy as possible for the individual to decide in your favor.
3. Emphasize “fair” standards
Governmental entities almost always have a strong interest in treating those before them as fair and reasonable. But what does this mean? In isolation, the terms “fair and reasonable” mean nothing. They are conclusions. What governmental entities often really care about is treating similarly situated individuals and companies – the public – consistent with independent standards like precedent, market value, scientific judgment, etc.
Let’s say you applied for a patent and you and your lawyer have a meeting with the patent examiner who will decide whether to grant it. What should you emphasize in the meeting?
Among other things, be prepared to distinguish your application from any bad precedent the examiner might note. And perhaps focus on a scientific analysis from an expert in your field attesting to the critical unique elements of your invention.
Finding standards like these provides governmental actors with the ability to appear – to their boss and rest of the public and to you – as fair and reasonable.
That’s good for everyone.
Published March 8, 2013 The Arizona Republic