Distinguished Toastmaster
BUSINESS & BRANDING COACH . LIFE & LEADERSHIP STRATEGIST MOTIVATIONAL SPEAKER SERVING ENTREPRENEURS &
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PATTERN AND PRACTICE THE LEGISLATORS SAID  (c) Carrie Devorah :
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I come from a background of Illustration and Marketing. Illustration taught me “A picture is worth a thousand words.” Marketing taught me about Points of Purchase and 6 seconds used to be the time it takes a person to decide to buy my art over Mickey, yes the Mouse. It was about showing people what they want so they can make their decisions, quickly, without too much thinking, in our world of faster-faster. Oh yeah, price points factored in too. I also learned in creating my top selling Housewares line “Heart Of The Country” for National Housewares, about Idiot Proof packaging. Show people EXACTLY what they are getting on the box outside to maximize customer retention of the item and mitigate store disruption by returned products.

I read the Draft for HR II, the legislation being put forth to address Patents and the misguided term Troll applied to Intellectual Property Owners protecting their Copyrights, “To provide that certain bad faith communications in connection with the assertion of a United States patent are unfair or deceptive acts or practices, and for other purposes.” I spoke with Shannon Taylor after the Hearing putting forth to Shannon an idea she cocked her head at. And then I realized my training had to kick in to gear here….. showing Legislators, with illustrations, how convoluted the Legislation was, is and remains. Sometimes Congress jumps in to matters where Angels fear to tread.

Raul Labrador had said to me a few months back that Legislators put forth one idea at a time. Shannon said that too when I said there is equity in putting ideas ‘out there.’ The model of successful marketeers is “tease and tell what your next “Next” and “Next” and “Next is.” Indie Wiz author Bella Andre [http://www.usatoday.com/story/happyeverafter/2013/04/16/bella-andre-interview-always-on-my-mind/2085873/ ]  said it best, to plan their next steps before the current one is done.

Congress doesn’t predict or plan out. Congress reacts.

The premise of HR II. Fails at the get go. Politics aside, Legislation is meant “for the people” not “for the people” having to hire lawyers rather than empowered to address matters themselves [ www.legalmatch.com ] The draft is in violation of Public Law, the Plain Writing Communication Act of 2010 “An Act to enhance citizen access to Government information and services by establishing that Government documents issued to the public must be written clearly, and for other purposes. “ [http://www.gpo.gov/fdsys/pkg/PLAW-111publ274/pdf/PLAW-111publ274.pdf ] signed in to law by President Obama. But Congress doesn’t write laws simply. Congress writes 40 which ways and everywhere, ‘cover ones backside’ texts repeating points from different angles, potentially increasing litigation potential between parties.

While it is tempting to dive in to a point-by-point dissection of the Draft, it is more expeditious to point out where the Act Draft fails, missing steps of accountability. Patented items are accessed at Points Of Purchase OR, in these days of the Internet Technology, at Points of Sharing. Between the User, the Innovator, and the Patent owner are several degrees of separation. The degrees of separation include possible Venture Capitalists aka VC’s, Angels (not that kind), lawyer(s), manufacturer(s), marketing team(s) and distributor(s).

Lets start here. You see below, Fair Use for educational purposes, scans of packaging for Brothers Ink (i) the outer shell package (ii) the inner vacuum packed package and (iii) the cartridge itself with Patent Information on the cartridge accessible ONLY after the customer has paid for their ink. Opening the packaging before paying for the product could invite a claim of theft(?), vandalism(?), etc. 
Look carefully at the cartridge label. The label, if one’s eyes can even read the text without a magnifying glass even more complicated by printing white letters on text (hint- black seas “thin” white rivers- is the ARTS descriptor), the label says, “Covered By One or More Of The US Patents, repeated in French text in a country where Spanish is a more common language. The 13 Patent Numbers listed are- 7178911, 7222950, 7229165, 7287845, 7300144, 7316471, 7350909, 7357494, 7384136, 7517069, 7562972, 7669994, 791434, 7942513.
Nowhere does it state on the exterior packaging anything about Patents, Dispute Resolution, etc.

It should. 

Moreso, websites should be marked similarly too with TOS (Terms of Service) or other Warnings placed at the page Top, Upper Right Hand Corner warning of Patents Involved and a Disclaimer the Consumer is Indemnified from Patent Infringment claims from Using the Product. No one reads to the bottom of pages. TOS & Alerts at the page top show the Consumer the “Read This so when you get sued you wont be surprised” alert and Patent Numbers, etc.

Look closer at the Patent Numbers. Look at the filings with the USPTO, the TEAS. Gets complicated, doesnt it. Scary even unless Legislators point the finger of Patent Responsibility where it belongs, quickly, at the Manufacturers, exporters and importers.
When the tentacles of the ink jet cartridge are looked at, laid out, makes the potential litigation tsunami overwhelming. It is simple enough to include on a Form, the Manufacturer Indemnifies all Users, compliant of course, from Patent Infringement litigation.

The draft HR II states, “Consumer”, identifying how the product- ink cartridge or cell phone or other- came in to the hands of the “Consumer” or, another HR II word, “User.” HR II states, “SEC. 5. DEFINITIONS. (3) CONSUMER.—The term ‘‘consumer’’ means an individual who purchases or contracts for purchase, rents, leases, or otherwise legally obtains or uses a product, device, business method, service, software, technology, website, or other merchandise for the personal use of such individual, or of a member of the household of such individual, and not for commercial resale purposes.” Black’s Law Legal Dictionary expounds on Congress limited Definition of Consumer.” The Law Dictionary defines Consumer. It say, “1. the buyer of a good or service. 2. a user that is not using the product but reselling it. Refer to customer.”

Definition of “Customer” is “one that purchases a commodity or service.” Congress is acknowledging the Item transaction is a Contract, where something is given with the expectation of receiving something. Random poll, here and now, how many of you believed you were willingly buying Lawsuits along with a cell phone, which is probably why the Manufacturers of Items are leaving off the Patents and or Patents pending markings from packaging exteriors. Should the End User be sued? Well, in using a product that is a Thicket of Patents? NO. It is expected and should be implied (this is where Congress can step in) that when a Consumer buys an item they are Clean Hands from Infringement litigation. That said, if, ie. with online Image and Data Infringement encouraged by Tech companies facilitating Image and Content theft, no.

The Consumer is active making a decision to remove something from a site. That is Intent. With a product like a blender, a mixer, a camera, a cell phone, the understanding for the Consumer is they bought the Item, they can use the Item and if someone has a problem with the Item, then that falls back on the Manufacturer. HR II states “(4) END USER.—The term ‘‘end user’’ means a person who--

 (A) purchases or contracts for purchase, rents, leases, or otherwise legally obtains or uses a product, device, business method, service, software, technology, website, or other merchandise; and

 (B) uses such product, device, business method, service, software, technology, website, or other merchandise for its intended purpose and not for commercial resale.”

 Remember, Senior Person accountability? THAT’S where the Legislation for Demand Letters is to focus. Oh, on the Lawyers too.

The goal is to mitigate litigation or problems. This is done by taking pro-active and preemptive steps and also by mitigating Bad Actors. Demand letters just don’t send themselves. Demand letters are sent by attornies, usually. It isn’t rocket science there would be a heckuva lot less litigations if Lawyers did grunt work first getting docs in a row. Lawyers are lawyers, and as exemplified by the characters routinely appearing before Congress, they look at law discounting steps such as laid out above. Yes, a law may be compromised. But where at which level. Making a lawyer accountable for sending out letters of questionable repute, is easily enough done. It is called a Code Of Ethics each State has for their sworn to comply with. If a lawyer is intentionally sending out boatloads of misguided demand letters, there is that forum for adressing. Require the lawyer to attach documentation of the alleged infringement ie ISP proof, etc along with a printout of the TEAS Patent data freeonline from the USPTO (indicated above).

Congress’ role in this matter of Patents and Property rights, well, questionable. Patents are Property Rights that are granted through the USPTO. Brother InkJet Cartridges are a great starting point for Congress to grasp, in illustrations, how complicated this matter gets.

Brother is a Japanese company. Let the papers below speak at how many potential litigations each User of a Brother Cartridge bought online or in store is potentially open too.

Congress got lead around the Mulberry Bush by the Technology Companies on Issues of Fair Use and Safe Harbor in a fraudulent attempt to not be at cause for Infringements and Online Theft. Fair Use’s definition is clear as is Safe Harbor. There should be no Safe Harbor defense here for a Manufacturer failing to advise the trusting Public they may be sued with a Demand Letter. To protect the Public, Congress should legislate all liability lays with (i) the Venture Capitalists who failed to build Consumer Protection in to the Model by the People accepting their Seed Money (ii) with the Patent Owner failing to require all packaging advertising to display Idiot Proof LARGE READABLE PICA SIZE WHITE ON BLACK LETTERING what all the Patents are in the product and (iii) the aforementioned Warranty they will Indemnify be responsible for any and all claims of this item’s Patent being infringed and (iv) if the Customer modifies, copies the Patent beyond pictured use of the item, then it is “Good Luck Charlie” then the Customer is on their own.

Oh. Studies on package Label Warning indicate, no one really listens anyways, case in points, Cigarettes and Condoms.

Let’s get real on the involvement of the FTC. Unfortunately for a lot of good people working there, and in similar agencies, the FTC is a neutered agency unable to perform for individuals or complete the Act when Foreign entities owning Patents are involved. If the number, dollars, isn’t big enough, it isn’t worth the FTC limited manpower to take a matter on. The agencies not included in this bill that are left to address this are Law Enforcement- the DoJ, US Attornies, FBI, USPS Mail Fraud Unit, Secret Service, USTR, Border, Immigrations, ICE and Local Law Enforcement. Creating, yet another Bill, without including these Partners in it is a major part of why America is in Litigation upheaval. IF imported packaging fails to have Patent disclosures on it, if located, items can be seized.

And yes, the underpinnings of this all are the Technology industry pushing product to meet bottom line projections. What ever happened to a cooling off period? What ever happened to Guidelines and a Handbook stating procedure… Put this bill where it should be in the backyard of Tech companies and Manufacturers and Lawyers complicit in the above deceits.  

A freebie FYI- did you know that a Google Search done in the UK on a US name produces a different set of hits than a Google Search done in the US. Interesting…. When it comes to considering Legislation to protect US business and citizens in a world without borders……
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