Posts Tagged ‘law’

4 Things to Consider About Negative Reviews

by on Wednesday, September 15th, 2010

Now that a New York court has dismissed claims against Yelp by a New York dentist based on a (very) negative review and on Yelp’s alleged removal of positive reviews, this might be a good time to think about what makes a review “negative” and what negative reviews mean to – and for – your business. You may think that negative reviews are just angry people taking shots at you. Here are four other ways to look at it:

via Marten Bjork (Creative Commons)

Readers recognize – and discount – outliers. Positive or negative, excessive emotions in a review diminish their credibility. It’s great to get an exceptional review for exceptional service. But if the glowing adjectives are out of proportion to a typical customer experience, readers are likely to apply the old saying: If something sounds too good to be true, it probably is.

Same thing with negative reviews. The surest way to lose credibility IS TO WRITE IN ALL CAPITAL LETTERS WITH LOTS OF PUNCTUATION!!! These are actually the best negative reviews you can get, because even if they are accurate, who will believe them? It’s true that some people write reviews to blow off steam, but readers know that, and respond accordingly.

Mixed reviews are not necessarily negative. Have you ever used Rotten Tomatoes to decide whether to see a movie? The site’s “Tomatometer” rating is based on whether published reviews were positive or negative. However, a review can only be either “fresh” (i.e., positive) or “rotten” (i.e., negative), no matter how mixed or qualified the review might be. For “Going the Distance” (51% rating), the fresh reviews include “solid but totally forgettable” and “hilarious in many individual scenes [but] less than the sum of its parts”. Rotten reviews included “funny but forgettable” and “The laughs kept me involved … but after I left the theater, it occurred to me that this slight comedy hadn’t gone very far at all.” Hmm. Many reviews – of anything – are mixed enough that it would be hard to give them either a thumbs up or thumbs down rating. So don’t consider every mixed review a thumbs down.

A mixed review is often more thoughtful, detailed and nuanced than an outright rave or pan. A customer who writes a review that contains some negative feedback isn’t venting, she’s helping. These are the reviews your customers will take seriously – and you should do the same. When you respond to reviews like these (easy to do on Zavee) you can use the review as the basis for an ongoing relationship. If you want a second chance at the customer and a more positive review the second time around, being proactive is the only way to get results.

Yes, competitors can try to hurt your business with fake reviews, but there are reasons you don’t hear about it happening very often. If you are running a good business deceitful reviews are unlikely to harm you, especially if you are actively communicating with your customers. Why? First, as discussed above readers will tend to discount rants whether or not they are malicious. Second, users of social shopping sites tend to be very skeptical of reviews that differ greatly from what most (real) customers experience. The unusual experience is another kind of outlier. On the other hand, negative reviews that go into detail about the experience and/or are written by a reviewer who has demonstrated credibility based on other reviews may well be taken seriously, but how many of your competitors are willing to invest that much effort just to undermine your business? If you are actively communicating with your customers you should be able to deflect even the most sophisticated malicious review. Finally, social shopping sites are trying to safeguard against malicious and fraudulent reviews. At Zavee, our system will reject a review unless the author has had a transaction at that merchant within 30 days of the review. Could a competitor jump through all those hoops just to hurt your business? Probably, but how many would bother?

A negative review is a positive experience. On the most basic level, a thoughtful review that recounts a negative experience provides valuable information for your business. You can’t be everywhere, and if a waiter or a sales associate didn’t behave appropriately, or if a product or service fell short of expectations, wouldn’t you want to know? Of course you would prefer to hear it privately, but in our increasingly social world these conversations are being held in the open. That isn’t necessarily a bad thing. A negative review can be a positive experience because your handling of the situation – again, in public – gives you the chance to move the conversation forward: increasing customer engagement and loyalty, building your reputation and your brand, and even persuading non-customers to give you a try.

The Zavee takeaway:

  • Readers are smart, and they are good at recognizing which reviews to take seriously.
  • Negative reviews can hurt your business only if you ignore them or react passively. Especially on Zavee, where we make it so easy for merchants to interact with customers, make sure you respond to every review.
  • Always follow through on anything you promise – and don’t forget to talk about it.

The Supreme Court Punts on Business Method Patents

by on Tuesday, June 29th, 2010

You may not know it, but the co-founders of Zavee have a background as practicing lawyers. That fact is usually enough to keep us from blogging about legal topics on Zavee Thinking, but one of the end-of-term Supreme Court decisions issued yesterday is both interesting and important to small businesses: a patent case called Bilski v. Kappos.

via Cliff1066 Creative Commons

Thomas Jefferson

The Court doesn’t handle patent cases very often, both because the legal issues rarely become Supreme-worthy and because the underlying facts are often very technical. Bilski is an exception on both counts, as the issue is extremely important and the facts aren’t very difficult.

Bilski filed for what is called a “business method” patent, in this case a procedure for instructing buyers and sellers how to hedge against the risk of price fluctuations in the energy sector. The patent application was originally denied because the Appeals Court held that a “process” was patent-eligible only if it either was tied to a particular machine or apparatus or physically transformed a particular article into a different state or thing (think of a process for cutting a diamond or desalinating seawater). This is called the “machine or transformation” test and it played a central role in the Bilsky decision.

No one can patent natural phenomena, laws of nature or (and this is critical) abstract ideas. In fact, the Supreme Court held that the Bilski patent was properly denied not because it failed the “machine or transformation” test – the Court rejected that as a litmus test for process patents – but because it was an abstract idea. The problem for business people is that the Court explicitly refused to define what kinds of business methods could both fail the “machine or transformation” test and pass the “abstract ideas” test – and thus be patent-eligible.

Why is this a big deal? The purpose of patent law (which was pioneered by Thomas Jefferson) is to encourage innovation by granting inventors who disclose their invention a monopoly over the subject of the patent. Some inventors don’t like that bargain: the formula for Coca-Cola has never been patented because its owners think disclosure is too risky – they worry that flavor chemists could reverse-engineer the formula and come up with something that tastes like almost like Coke but doesn’t violate the patent.

With business method patents the risk is the opposite: that despite disclosure businesses could inadvertently infringe on a patent just by conducting their business. Although the patent described in this famous Onion article would never be upheld, Congress was nervous enough about business method patents that in 1999 it enacted a specific defense against certain infringement claims relating to business methods. Even with this defense, however, businesses will have to choose between investing in resources to effectively monitor both new patents and their own business to prevent infringement or take the risk of possible litigation. Either choice is risky and potentially very expensive.

The fundamental question about business method patents is whether they help or hinder innovation. Another way to ask the question is whether the absence of patent protection would deter inventors from incurring the cost and risk of invention. In science and technology, the benefits of patents are clear: no one would invest in drug discovery if the results of their efforts immediately had to be shared – for free – with drug companies that hadn’t put any time or money into the research. On the other hand, methods of doing business have been competing in the marketplace for centuries without patent protection.

Using a similar analysis, four of the nine Justices concluded that business methods should not be patent-eligible, but they were outvoted (all nine agreed that the Bilski patent was too abstract to be eligible). The Court’s opinion has received critical reviews, since it was so narrowly decided that it leaves the important questions unanswered. Yet it seems inevitable that the Court will have to grapple with the issue of business method patents before too long. The lines are blurring between technology that is clearly patent-eligible and abstractions that clearly are not – a factor, perhaps, in the Court’s non-decision – and the risk to both businesses and inventors is great.

The Zavee takeaway:

  • Whether methods of doing business are patentable is an important question, one the Supreme Court should have answered yesterday.
  • If you are developing a novel way to do business, think twice before investing in a patent. Bilski didn’t kill the business method patent but it didn’t offer a strong endorsement, either.
  • It’s not impossible that someday you will be on the receiving end of an infringement claim. If it happens, find the best patent lawyer you can and don’t give up hope – you may be able to beat the claim or even the patent itself.