Copy of Comments Sent Earlier Today 2011-11-08 to PTO:

On small inventor international rights and small business innovation fund, in response to USPTO invitation.

IP.Policy@uspto.gov.

Mail Stop OPEA

P.O. Box

1450, Alexandria, VA 22313–1450,

ATTN: Elizabeth Shaw.

I submit the following in response to your request for information for purposes of AIA mandated studies due 2011-11-08.

1. Overall, how important is international patent protection to small business?  Answer/Comment: Small businesses usually start out with a small local focus, both in assessing their potential market and in sourcing new jobs. That is why small businesses create the majority of new jobs in America. They are not in a position to hire foreign workers or set up foreign factories. So, foreign IP rights, including patents, are normally not considered until the business gets big enough to start thinking globally, but by then foreign patent rights are usually lost. The US Government, and the United States Patent and Trademark Office in particular, do a horrible job at protecting small businesses from this short sightedness. When countries like China, India, Russia and Koreas openly steal intellectual property, millions of US manufacturing and technical jobs are going overseas every year. When the US Government puts an IBM patent strategist in charge of the United States Patent and Trademark Office it is clear why a study is being mandated, as there is every reason to think the US Government has not considered the interests of small business in enacting the Anti Inventor Act of 2011. You are well aware that prominent studies have found that all net new jobs in America are created by small businesses, the consequences of AIA will be devastating.  (See, The Importance of Startups in Job Creation and Job Destruction, July 2010, by Tim Kane, Ewing Marion Kauffman Foundation; http://www.kauffman.org/uploadedFiles/firm_formation_importance_of_startups.pdf ) . Don’t lose sight of the fact that AIA was passed by the best Congress money can buy to make it easier for the large multinationals infringe small entity patents with impunity and that results in entrenched businesses being able to send jobs overseas that would have otherwise been created here.  (See, Patent Reform is all About Making it Easier for Multinational Corporations to Steal Innovation and Offshore American Jobs, 4-12-11, by Neil Thomas, Silver Spring, MD; http://www.docs.piausa.org/NeilThomas/Patent%20Reform%20is%20All%20About%20Making%20it%20Easier%20for%20Multinational%20Corporations%20to%20Steal%20Inventions%20and%20Offshore%20American%20Jobs,%204-12-11.pdf. It has now become a ‘national security’ issue. 
2. At what point, if ever, in the growth of small companies does international patent protection become important? Answer/Comment: Small businesses usually start out with a small local focus, both in assessing their potential market and in sourcing new jobs. That is why small businesses create the majority of new jobs in America. They are not in a position to hire foreign workers or set up foreign factories. So, foreign IP rights, including patents, are normally not considered until the business gets big enough to start thinking globally, but by then foreign patent rights are usually lost. Also, as said in other comments you will received from small inventors, foreign rights become important at the outset, but are just not recognized as such as that time. So, they are important from the day that Congress enacts legislation and the USPTO writes regulations that hurts small businesses and assures they are cheated out of their foreign rights by David Kappos’s pals at IBM and other domestic foreign multinationals that the United States Patent and Trademark Office caters to most of, if not all, the time.  Small startups are competing from ‘day one’ in a global market for survival with companies worldwide which have huge cost advantages, regulatory advantages and governments which protect them from competition (e.g. The Peoples Republic of China.) A senior Chinese judge understands what cowtowing by David Kappos and fellow IBM puppets in the Senate (e.g Sen. Patrick “IBM” Leahy) have caused to occur by lobbying on behalf of IBM for passage of the Anti Inventor Act [AIA], “…it will make the [US] patent less reliable, easier to be challenged and cheaper to be infringed…will give the companies from developing countries more freedom and flexibility to challenge the…US patent…and make it less costly to infringe. The bill…will weaken the patent protection…”  (See, China Intellectual Property News, Nov. 7, 2007; quote from the former Senior Judge, IP Division of Beijing High People’s Court, about a previous version of the pending American Invents Act H R 1249; http://www.reformaia.org/sites/default/files/071107China%20Intellectual%20Property%20News_Certified%20(with%20Selectable%20Text).pdf). So foreign rights are always important to a small business since the rights must, by law be protected within a year of filing the US case or they will be lost, and yet the sycophants in Congress and in the Director’s offices pretend to be helping small inventors when small inventors know just the opposite to be true. You and they are out to cater to IBM and its ilk and not to small business, because you and they care about your Government job security not American job security. Is it treasonous? Probably. Is it deliberate? Certainly. Is it done knowingly with malice? Probably not. You and they are not that smart. However the pupeteers pulling your strings certainly know the score and know the harm they cause to America. One thing we know for sure, and product liability cases, EPA fines, corporate fraud convictions (remember Enron, remember Bernie Maddoff, remember Shearson Lehman, remember etc., etc.) is that short term corporate greed has no conscience or morality and cares nothing for the damage it does to America so long as profits are up today.
3. What challenges, if any, interfere with the growth and competitiveness of small companies if international patent protection is not sought early in the innovation process? Answer/Comment: Simple, low cost foreign sourced goods will eat the heart out of the small business if there is no protection against foreign companies stealing the R&D and thereby lowering their cost and producing with slave labor. The result is that foreign invention thieves can make and sell the identical products across the street from the small business and do so at much lower prices, since they have lower costs and do not have to pay fair value for the inventions created at the risk of and by the time, labor and expertise of that small US business. The theft of intellectual property by countries like China, India and Russia and the enormous cost and expense of enforcement to protect IP, now made even more difficult by the Anti Inventor Act of 2011 simply makes that more difficult for small businesses. Again, your boss’s bosses at IBM, MS, Samsung, Sony, Toshiba, and Gary Locke’s great friends in China, whom he now serves as Ambassador, are happy you are killing American ingenuity with the Anti Inventor Act of 2011, and really don’t mind the special earmarks to Wilmer Hale law firm ($214M from Sec. 37) or the hoped for invalidation of the Data Treasury patents ith the introduction of “first-to-file” (FTF) it forces small companies to divert their attention and resources from research and development, finding customers, and growing their business to filing numerous, often wasteful patent applications both domestically and internationally.   Under AIA small companies will now need to file multiple applications as their R&D progresses to protect a multitude of ideas, only a few of which will ultimately work.  For a small company this will be a huge distraction and cost since seeking patent protection is an expensive and time-consuming activity.   Passage of F-T-F was a huge disservice to America’s small businesses!
   
4. What specific role does international patent protection play in the successful internationalization strategies (such as franchising, exporting, or foreign-direct-investment) of small businesses?  Does this role differ by industry or sector? Answer/Comment: FIRST, Unfortunately, not much since the main offending countries only pay lip service to IP rights and the White House’s IP czar Victoria Espinel seems to be completely ineffective at doing her job. She has been able to do NOTHING to stop IP piracy by China, Russia and India. Instead she just publishes self-serving reports and flies around on boondoggle trips while these countries are engaged in “unfair trade practices,” protecting their domestic industries, manipulating their currency, and laughing at her. American businesses (and I don’t mean IBM, Intel, MICRON and GE which employ more people overseas than in the US and are thus no longer truly American companies) need some sort of protection from our Government and relief from corruption of Government by people like David IBM Kappos, Senator Patrick IBM Leahy, Representative Lamar DELL Smith and the ineffectual Victoria Espinel. However, AIA goes the other way and makes patent protection more difficult and more expensive for small businesses, not less. This is apparently the aim of the United States Patent and Trademark Office, as “Fast Track For Fat Cats” was immediately implemented, and 15% fee increases for small inventors were immediately implementd, but the fee reductions for micro-entities, the definition of which is spelled out in detail in the AIA itself, was put on hold indefinitely while David IBM Kappos deliberates on the matter. Is it any wonder small business thinks Kappos is strictly focused on Fat Cats and that all his discussion of small inventors is just self-serving CYA BS aimed at obfuscating the matter and misleading small business while he and his master at IBM and MS pick their pockets.
   
5. How can the USPTO and other Federal agencies best support small businesses regarding international patents? (a)In obtaining international patent rights? Answer/Comment:Make all US Patents, on an opt-out basis, international patents, subsidizing to whatever substantial extent necessary for small entities, the international fees to make it affordable to small business and obtaining by treating auto-designation of all member countries at low cost for small entities. This would have the effect of allowing small businesses the advantages of the 30 month period under PCT. That would largely solve the current problem of lack of foreign protection for inventions that meet with success during that time period, which for software and high tech should be sufficient to determine market viability internationally. This would also work to the advantage of the big businesses to which you currently cater. This would help take us back to the founders’ intent that patents be both a reward for the inventor’s labor in creating the invention and an encouragement for him to give it to the public. SECOND Move to a registration system much like trademarks, where applications are given rapid novelty exam, and if novel passed to publication for opposition (say 60 days). 90% will not be opposed and will issue. 10% (an educated guess) would draw opposition, and notice would be provided prominently of the opposition so other opposers could cite their art, prior sales, uses, or other invalidation grounds, if they wanted. Examiners would quickly review the citations and issue a decision. Now we have certainty and something courts would respect and we have it within, probably, 6 months of filing. That is timely enough for software, even, and would eliminate the main complaint of big business, which is that they are getting blindsided by issuance of patents after long delay at the PTO. Create a requirement that the PTO, not any court, reviews infringement and invalidity issues, so that all such issues are referred to the patent examiners where they belong. It is ludicrous to have non-technical unqualified juries and judges evaluating such issues because it results in sloppy analysis and conflicting decisions based more on which advocate is arguing the case than on the merits. Patent examiners are just simply not going to be fooled by even the best advocate very often on technical and patent law issues, and if they are it will only be once or they can be replaced. I have been blogging about this simple solution for a decade. See http://burdlaw.com/references/PatentReform/PLEAS-Rev%2020110615.pdf This would help take us back to the founders’ intent that patents be both a reward for the inventor’s labor in creating the invention and an encouragement for him to give it to the public. I feel that First to File (FTF) implementation is designed by IBM and others of the “Coalition” to kill small business. Don’t even try to suggest otherwise to small inventors. We have seen it in action and seen who pushed the AIA with millions of dollars to Akin Gump and other lobbying firms and with pressure on pliant Congressmen in their districts. Those millions were not spent lobbying to help small business, they were spent to help entrenched big business stay on top and get free access to any disruptive new technology that might otherwise displace them from their lofty fat cat status. So, if you care about small business at all, you will suggest in your report to Congress that they repeal FTF and return to “First to Invent.” Of course, we know your game (and we don’t like it) so we are not holding our breadth as we small business advocates are not so naïve to expect you to change your spots.  We know, and the evidenced shows, the PTO directorship is spotted with corruption by big business. Actions speak truer than words and we follow the money. That our new Chinese Ambassador, in his prior capacity as Secretary of Commerce, appointed the former patent strategist for IBM as the head of the United States Patent and Trademark Office is an action by the US Government that tells small business the game that is being played.  Small businesses know they have been sold out and action such as that says more than words. No degree of lip service to small business can correct the actions taken. We know that “harmonization” begins with “harm” and we small businesses are the ones being harmed. In maintaining international patent rights? Answer/Comment Create a unified, simplified administrative procedure for maintaining US and foreign patent rights so that a small business simply pays one fee to the United States Patent and Trademark Office and that automatically takes care of the international fees. To accommodate the varying geographical scope of international patents, this could be done by the United States Patent and Trademark Office sending a single maintenance bill, perhaps on a yearly basis to spread it out and reduce sticker shock, that included both US and all PCT and foreign national maintenance fees. The key to helping small businesses is to SIMPLIFY so that small business can take the proper action without having to spend huge sums on specialists to advise what needs to be paid when. The United States Patent and Trademark Office could initially just subcontract this out on a competitive basis to one of the maintenance companies that already have programs in place, and which have done this for decades. It is not a hard thing to implement logistically, the problem is your big business bosses (both political and private) won’t let you do it because they want things complex and costly to squeeze out small pioneering inventors so they can steal key inventions with impunity. Again, knowing who is really setting United States Patent and Trademark Office policy (big multinational businesses like IBM), we do not expect much from you in this regard even though the solution is straightforward. Small business activists like me think you are just going through the motions with these “studies” and that the real purpose is to come up with arguments for pro-big business positions and new job killing impositions on small inventors such as those the United States Patent and Trademark Office lobbied for in the Anti Inventor Act of 2011. In enforcing international patent rights? Answer/Comment: FIRST–Create one single, simplified administrative procedure for enforcing US and foreign patent rights (see again my PLEAS proposal http://burdlaw.com/references/PatentReform/PLEAS-Rev%2020110615.pdf) instead of the endless, costly multitude of Ex parte reexam, Inter partes review, PGR, Sec. 18 Transitional Program, US judicial proceedings, ITC proceedings, customs registration, foreign patent suits (in forums where success rates are minimal at best), and bankruptcy (since that is what will happen to the small business if it tries to engage in international patent enforcement.) All these challenges greatly diminish the value of patents and discourage innovation. Hopefully someone at the United States Patent and Trademark Office has the nerve to issue a report that your Director does not like telling the truth rather than one that cowtows to IBM like you Director does. SECOND: Create and fund a Government agency to ‘prosecute’ alleged infringement of small entity held US patents. This would displace the so called “patent trolls” without leaving small entities without a remedy. One of the great tragedies of the patent system is that small patentees have no way of enforcing their patents due to the cost of enforcement, due to the laws and procedures enacted by the best Congress money can buy and its fat cat, big contributor, special interest-focused legislation.THIRD–Provide for injunctive relief. What kind of cruel joke is it to promise “exclusive rights” for limited times that are not exclusive if you are a small patentee without the resources to commercialize the invention yourself? Exclusivity is the leverage that forces big business to honor small dollar patents rather than just steal the invention knowing that the inventor cannot afford patent litigation. FOURTH–Make it a crime to infringe a patent. That way the US Attorney, which does have the expertise and funds to enforce laws, could collect on behalf of small inventors. The US could take a percentage of the recovery as partial reimbursement for its efforts and a fee could be required of the patentees to assure the desire for enforcement is real. FIFTH–Make the loser pay the winner’s fees and expenses in patent litigation, so that the small guy can get contingent fee representation, and so that infringer’s have a much bigger downside risk. This also has the effect of self-policing of infringement actions since the patentee would also pay the legal fees and expenses of a patent infringement defendant found not to infringe. That risk would really minimize the filing of frivolous “extortion” lawsuits that really just seek to harass sufficiently to get bunch of favorable settlements. SIXTH–Make penalties, including treble damages, the norm rather than the exception for infringement.
6. What role should the Federal Government play in assisting small businesses to defray the costs of filing, maintaining, and enforcing international patent protection?Answer/Comment: As noted above, an option to have the US Attorney enforce the patent should be made available so small dollar patents can be enforced, which is now not the case.FIRST–As noted above, create a highly simplified ‘one-file’ system where a small business can file once in the US that automatically takes effect world-wide. The current multi-filing, multi-rule system places a disproportionate burden on small businesses and inventors that diverts badly needed funds from R&D to patent filings. This squeezes small business and startups financially, so the risk of failure becomes much greater. That is, I submit the precise purpose of the Anti-Inventor Act of 2011, namely to raise the costs for small business so small business gets priced out of the patent system and it becomes what big business really wants, strictly a rich man’s game. That is not what the founders intended. They wanted patents to go not to the well connected but rather to the well deserving, the original and first true inventor. The US needs to get back the spirit and purpose of the original patent act that, up until September 16^th of this year served America so well, despite the special monied interests lobbying so hard to distort and destroy it. SECOND–Create an agency that enforces patents held by small-entity US nationals for them. THIRD–Provide incentives for small-entity US nationals to “practice” their inventions in the US.
   
7. In order to help small businesses pay for the costs of filing, maintaining, and enforcing international patent applications, how effective would it be to establish a revolving fund loan program to make loans to small businesses to defray the costs of such applications, maintenance, and enforcement and related technical assistance? Answer/Comment:This would be extremely helpful, almost without exception. Moreover, there is really no downside to it, other than some big business might be overtaken by a startup with a disruptive (breakthrough) new invention, such as many we have recently witnessed in computer and smartphone technology.
8. Under what specific circumstances, if at all, would such a fund be effective at helping small businesses?Answer/Comment: FIRST–If it were a streamlined, simplified, or even automatic process.  The less paperwork, the better. SECOND–If the amount of funding was meaningful. THIRD–If the timing was right. For example, one clear situation where it would be perhaps most effective is when infringement is relatively clear but the dollar volume is too low to interest contingent fee attorneys to take the case. If the Government loaned the patentee the cost of legal fees, this would allow private attorneys to pursue the matter, and would eliminate the need for Government attorneys to take the action directly.
9. If such a fund would be effective, should the fund be maintained by the Federal Government, and if so, through what mechanism?Answer/Comment: The fund should be administered by the Independent Inventor Assistance Office (IIAO) of the United States Patent and Trademark Office which is already set up to provide assistance, but which currently has no loans to offer. There is no need to create a new agency, provided the IIAO is insulated from political pressure such as having the the loan fund overseen by true small entity inventors or scientists recognized for their objectivity.
10. What criteria should be used to decide upon recipients of funding? Answer/Comment: FIRST–Being a small entity (500 employees or less) should be a threshold criteria. SECOND–The loan should be proportional to the appraised value of any particular patent; the more potentially valuable, the bigger the loan. An independent appraiser panel could be assembled to perform this function, or it might be automated such is currently done by Pantros IP and its Patent Index Factor Report.
    
11. Could the private sector be meaningfully involved in maintaining and implementing such a fund?Answer/Comment:FIRST–Could and should. Small inventor representatives like me think it vital to make absolutely sure that the politicians and big corporations are in NO way involved in disbursements by such a fund. It is practically, if not actually, a law of nature that big corporations want to destroy small inventors and are anathema to small patent owners. SECOND–Part of any award to a small inventor successfully enforcing a patent by use of the fund should be a royalty interest of the fund and that should be over and above what is determined to be a reasonable royalty.THIRD–Invite ‘co-investment’ by proven private venture capitalists provided they do not control the invention or the fund. Venture capitalists could help ‘leverage’ such a fund. THIRD–Recognize that big businesses like IBM and Microsoft pay too little in PTO fees in proportion to their size and financial resources and the revenues received in patent royalties. The solution is to increase PTO fees on patents that generate royalties, especially for large corporations, to help finance this fund.
    
12. In order to help small businesses pay for the costs of filing, maintaining, and enforcing international patent applications, how effective would it be to establish a grant program to defray the costs of filing applications, paying maintenance fees, and conducting enforcement and to provide related technical assistance? Answer/Comment: Very effective. Grants should be given for prosecution costs, loans for enforcement. If the enforcement succeeds the defendant, rather than the patentee should be made to repay the loan, as the defendant will have been found to be the cause of the loan being given.  Small inventors and businesses typically desperately need capital.  Since the patent process and the value of patents are subject to so much uncertainty, the current system is a huge deterrent to innovation. Under what circumstances, if at all, would such a program be effective at helping small businesses? Answer/Comment: FIRST–If the amount of money was really meaningful;SECOND–If the criteria were meaningful. This needs to be BOTH merit based and needs based, unlike the extremely low income criteria being used in the PTO’s new ‘pro bono’ program.THIRD–This should not simply be welfare to poor people, but rather a program to give money to inventive and creative people, so make it effective and meaningful and have it based more on merit and less on means.
13. If such a grant program would be effective, should the program be maintained by the Federal Government, and if so, through what mechanism? What type of grant program, covering what specific costs, would be most effective? Answer/Comment: FIRST–As noted above, the Independent Inventor Assistance Program Office at the United States Patent and Trademark Office is suggested as the best place to impartially determine the merit, and means testing is relatively simple in comparison and could likely be computerized. SECOND–Such a grant program should be guided or administered by a non-politicized committee or board run by successful, true small-entity inventors.THIRD–Please make it self-sustaining with grants being made on a profit sharing basis with small inventors so that if a patent is successful, the fund shares in the profits and thus perpetuates itself to fund other entrepreneurs. FOURTH–Please give the fund the discretion to fund any costs that would make the invention an economic reality; much the way ‘venture capitalists do.
    
14. What criteria should be used to decide upon recipients of grants? Answer/Comment: FIRST–Make the ‘grants’ an investment, not just a gift. SECOND–Breakthrough inventions and inventions which have large economic and/or social value should have priority, as they are likely to create the most new jobs. THIRD–A grant condition should be that recipients ‘practice’ their invention in America, not overseas, so as to create employment and economic growth here. Otherwise, what is the point?
    
15. Could the private sector be meaningfully involved in maintaining and implementing such a program? Answer/Comment: FIRST–Could and should! It should be managed (grant decisions made) by credible, honest and successful small inventors and businesses who have “walked the walk.” SECOND–This could be done by appointments to a board of independent inventors who decide the merits of grantee requests. THIRD–Academics should not be in control of the fund, as it will then be subjected to cronyism and parochialism among academics.
    
16. If the Federal Government is limited to providing either (i) A revolving fund loan program or (ii) a grant program described above, but not both, which of these options would be more effective in accomplishing the outcome of helping small businesses pay for the costs of filing, maintaining, and enforcing international patent applications? Answer/Comment: FIRST–I support a revolving loan, with forgiveness if the invention does not succeed but with a share in profits if the invention does succeed, so that the fund is self-sustaining. SECOND–If a grant program is chosen, despite my recommendation, a well-run grant program should operate on a profit sharing basis so the fund has a good chance of being largely self-sustaining and since does not make sense to punish the unsuccessful and does make sense to share in successes. The fund might even be highly profitable monetarily, as well as socially beneficial in promoting progress, and might grow in size and eventually offer assistance to small inventors in other areas, such as payment of attorney fees for prosecution of meritorious applications.
17. Are there circumstances under which the Federal Government should not consider establishing any of these programs? Answer/Comment: Yes, FIRST–If it’s administered by the Director or other big business pawn. SECOND–If it’s going to be under-funded, as if the amounts of funding are inconsequential the results will be inconsequential and will render the future establishment of such fund even on a well-financed basis. THIRD–If it’s going to get politicized so that the best Congress money can buy decides which special interest will receive the funds as an “earmark”, as then the results will just be diversion of the money to undeserving political fat cats rather than meritorious inventors. FOURTH–If it’s going to be run by people who don’t know what they are doing, such as the technically unsophisticated members of the best Congress special interest money can buy, as the results will be waste of funds and disappointing results and that will hurt the chances of re-establishment of the fund on a more competent basis later.

Sincerely,

Bruce E. Burdick