How would the Trans-Pacific Partnership Agreement affect the Reshoring Trend?

June 2nd, 2015

Reshoring has become a trend, not just anecdotal, as hardly a week goes by without an article about a company returning manufacturing to America in some news outlet. However, the Trans-Pacific Partnership Agreement is projected to reduce the rate of reshoring and manufacturing jobs being brought back to the U. S. Combined with the high U. S. dollar, the impact is likely to be severe.

Utilization of the Total Cost of Ownership worksheet estimator developed by Harry Moser, founder of the Reshoring Initiative, has provided a method for companies to do a true analysis to be able to see that they may not be saving as much, if any, of the money anticipated by sourcing offshore because the cost savings are often outweighed by the hidden costs of doing business offshore.

Total Cost of Ownership (TCO) is “the sum of all the costs associated with every activity of the supply stream,” according to the 13th edition APICS dictionary.” However, most companies don’t look beyond quoted unit price to make decision of where to source and ignore 20% or more of the total cost of offshored products. According to the Archstone Consulting survey reported in the American Machinist Magazine July 16, 2009, 60% of manufacturers apply only “rudimentary” total cost models: Wage Arbitrage, PPV (Purchase Price Variance), and Landed Cost.

This is because in the cost accounting systems used by most corporations, transportation costs, travel costs to vendors, rework costs of defective parts, cost of inventory, etc. are in separate accounting categories. This is why it is critical that CFOs and Supply Chain managers be trained in how to use the TCO worksheet to increase reshoring. Harry Moser’s TCO worksheet is able to quantify many of the following hidden costs of sourcing offshore that are not captured by any other current method:

  • Currency fluctuations
  • Cost of managing offshore contract
  • Design changes
  • Quality problems
  • Legal liabilities
  • Travel expenses
  • Time and effort to make transition
  • Poor communication
  • Intellectual Property infringement
  • Cost of inventory

The reshoring trend has also benefited by the following changing supply chain dynamics in offshore sourcing that have occurred since 2007:

  • Oil prices tripled, raising logistics costs
  • Labor rates in China rose by 300%
  • Component/material prices increased
  • Automation increased U.S. productivity
  • Political instability in China – Labor riots/strikes
  • Exchange rate variables
  • Risk of disruption from natural disasters

This is why the Boston Consulting Group issued a press release May 5, 2011, stating, “We expect net labor costs for manufacturing in China and the U.S. to converge by around 2015… since wage rates account for 20 to 30 percent of a product’s total cost, manufacturing in China will be only 10 to 15 percent cheaper than in the U.S.” This prediction was very controversial at the time and generated a great deal of debate.

On October 11, 2011, the Boston Consulting Group issued a report, stating, “Seven industry sectors had reached “tipping point” of returning to U.S.” They are:

  • Appliances and electrical equipment
  • Computer/electronics
  • Fabricated metal products
  • Electrical equipment/appliances
  • Furniture
  • Machinery
  • Plastics and rubber products
  • Transportation goods

Note: These sectors account for 70% of U.S. imports and 2 trillion in U.S. consumption

Because robotics, automation, lean manufacturing, and the rapidly improving technology of additive manufacturing have helped companies do more with fewer people, many have been skeptical that reshoring would create many jobs. The Boston Consulting Group’s predictions of which industry sectors would return to the U. S. first are now verified by data that the Reshoring Initiative has captured since its founding in 2010. This data also provides the answer to the question of how many jobs have been created by reshoring.

The following chart shows the number of jobs created by reshoring:

Industry

 Jobs Companies
Transportation Equipment 13,823 33
Electrical Equipment, Appliances, Components 9,240 58
Computer/Electronic Products 3,483 25
Machinery 2,860 20
Apparel/Textiles 2,154 46
Fabricated Metal Products 1,721 39
Food 1,628 9
Wood Products 1,028 18
Medical Equipment    738 17
Hobbies    723 29
Construction    577 4
Plastic/Rubber Products    470 16
Castings      57 8
Non-Metallic Mineral Products      12 1
Primary Metal Products        0 5
Chemicals & Energy        0 1 each
Other 1,016 24

The Reshoring Initiative has also captured reshoring data by state. You will be surprised by some of the states that made it in the top ten because the Boston Consulting Group predicted that reshoring would mainly occur in the low wage states of the south. The data for the top ten states is shown on the chart below.

State

Jobs

 Cases Jobs/Facility
South Carolina 7,530 8 941
Texas 3,792 13 292
Kentucky 3,412 4 853
Georgia 3,145 8 393
Tennessee 3,137 15 209
Ohio 2,739 24 114
Michigan 1,742 16 109
New York 1,165 19 61
North Carolina 1,020 15 68
Kansas 1,000 2 500

Three of these states, Ohio, Michigan, and New York are definitely not low wage states. California dropped from a rank of 10th in the number of jobs shown on the 2014 table to 12th on this new table. Frankly, if a company can reshore to California, Michigan, New York and Ohio, they can reshore to anywhere in the U. S.

According to the 2012 Annual Re-Shoring Report by the MIT Forum For Supply Chain Innovation, the top decision drivers for reshoring are: (1) Time-to-Market – 73.7% (2) Cost Reductions – 63.9% (3) Product Quality – 62.2% (4) More Control – 56.8% (5) Hidden Supply Chain Management Costs – 51.4% and (6). Protect IP – 48.5%.

If reshoring continues to expand at its current rate, the Reshoring Initiative predicts that the $600 billion/year trade deficit would be eliminated; the U. S. economy would add 3 million manufacturing jobs while adding 9-12 million total jobs because of the multiplier effect of manufacturing jobs; reduce unemployment by 4%; cut the U.S. budget deficit by about 50%, and increase manufacturing output by 25%.

Because of my concerns about the impact of the Trans-Pacific Partnership Agreement about which I have written, I recently asked Harry Moser for his opinion on the potential effects.

He said, “We have made huge progress from around 2003 when we were losing net about 130,000 manufacturing jobs/year till 2014 when reshoring plus FDI exceeded offshoring by about 10,000 jobs. However there are still about 3 million manufacturing jobs offshored. So, reshoring is still in its infancy and is still fragile. Offshore LLC prices are still typically 25% lower than domestic prices. It is a struggle to get companies to understand that in some cases the domestic total cost is lower even though the price is so much higher. Tariffs are one of the largest, most unambiguous of the “hidden costs” that need to be quantified. TPP will reduce tariffs, making the TCO argument more difficult and less likely to suggest reshoring. This is also an especially poor time for TPP with the USD up substantially and at its highest level in several years. The combination of the high USD and TPP will reduce the rate of reshoring by a roughly estimated 20 to 50%.”

He added, “Since the U.S. is the world’s largest market, with one language and with consumers who are mainly driven by price not nationalism, ours is the target market for all offshore companies. TPP will reduce barriers to trade, making our market even more attractive. If TPP has equal percentage impacts on our imports and our exports, the result will be negative since our goods imports exceed our exports by about 40%. ”

The TPP would reduce or eliminate tariffs for 11 more countries, so it will have the most impact on the companies that have reshored because of cost savings. I think Harry’s opinion that the TPP would have a 20 – 50% reduction on the rate of reshoring is conservative. This adverse effect on reshoring is one more reason why we must stop the fast track Trade Promotion Authority from being passed by the House. Now that the Trade Promotion Authority fast tracking the TPP passed the Senate, it is critical that you contact your Congressional Representative to urge them to oppose granting fast track Trade Promotion Authority for the Trans-Pacific Partnership Agreement.

 

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Posted in Taxes/Regulations, Trade Policy | No Comments »

International Corporate Elite Steamrolls Trade Promotion Authority Through Senate!

May 26th, 2015

Late Friday evening, May 22, 2015, the Senate voted to pass the Trade Promotion Authority (H.R. 1314) by a vote of 62 to 37 to give President Obama the authority to “fast-track” trade agreements through 2018, with an extension to 2021 possible. If this legislation also passes the House, this would mean that the Trans-Pacific Partnership Agreement (TPP) and the Trans-Atlantic Agreement may be negotiated and signed without any amendments by Congress and with only a majority vote rather than the supermajority vote required for treaties under the Constitution.

Of the Republican senators, 54 voted yes, four voted no and one did not vote. Fourteen Democrats joined the majority of Republicans in voting yes. According to the Roll Call, they are: Bennet (CO), Cantwell (WA), Cardin (MD), Coons (DE), Feinstein (CA), Heitkamp (ND), Kaine (VA), McCaskill (MO), Murray (FL) Shaheen (NH), Warren (VA), and Wyden (OR). The four Republicans who voted no are: Collins (ME), Paul (KY), Sessions (AL), and Shelby (AL).

Nearly every Democrat or Democrat-leaning organization from unions to the Sierra Club opposed the Trade Promotion Authority, so those fourteen Democrat Senators turned their back on their constituencies and the American working class they claim to support to follow lock-step with the Republicans they accuse of being in the pocket of “big business,” i.e. the large multinational corporations that comprise the membership of the U.S. Chamber of Commerce, the National Association of Manufacturers, etc.

There were over 100 amendments proposed, but only ten were allowed to reach the floor for a vote. Three were rejected for discussion or a vote because they were ruled as not being not germane to the topic: Inhofe (R-OK) # 1312 (AGOA), Shaheen (D-NH) SA #1227 (small business), and McCain (R-AZ) #1226 (catfish).

The Hatch (R-UT) (substitute) amendment #1221 was approved without any description or discussion by a vote of 62 yes to 37 no.

The Flake (R-AZ) amendment #1243 to strike the extension of the Trade Adjustment Assistance program (TAA) failed 35 yes to 63 no. The Trade Adjustment Assistance was originally a separate bill and was added to the Trade Promotion Authority to “sweeten” the deal to gain Democrat votes. Trade Adjustment Assistance is a federal program to reduce the damaging impact of imports. The current program features four components for workers, firms, farmers, and communities.

The Brown (D-OH) amendment #1251 purpose was to require the approval of Congress before additional countries may join the Trans-Pacific Partnership Agreement because the TPP is a “docking” agreement in which other countries may be added after it is signed and in effect. In his comments in support of this amendment, Senator Brown specifically mentioned the need for Congress to approve the addition of China to the Agreement. Unfortunately, the amendment failed by a vote of 47 yes to 52 no.

The Stabenow-Portman amendment #1299, whose purpose was, “To make it a principal negotiating objective of the United States to address currency manipulation in trade agreements,” failed by a vote of 48 yes to 51 no.

The Hatch amendment #1411 was agreed to by a vote of 70 yes to 29 No without any description or discussion.

Two Amendments had already been considered on May 21st:

  • Lankford SA 1237 passed by a vote of 92 to 0 to establish consideration of the conditions relating to religious freedom of parties to trade negotiations as an overall negotiating objective of the United States.
  • Brown SA #1242 failed by a vote 41 to 45 to restore funding for the trade adjustment assistance program to the level established by the Trade Adjustment Assistance Extension Act of 2011

Of equal importance, the Warren amendment #1327 failed to pass by a vote of 39 Yes to 60 No. Its purpose was “To prohibit application of the trade authorities procedures to an implementing bill submitted with respect to a trade agreement that includes investor-state dispute settlement” [ISDS].

This is the chapter of the TPP that allows foreign corporations to bypass the domestic legal system to use to fight laws they don’t like. International Tribunals, not U.S. courts, would decide on lawsuits between the U. S and “investor” companies in member countries. Foreign “investors” could file lawsuits against city, state, and federal agencies for laws and regulations they feel infringe on their “expected future profits.” They can also sue for compensation for the loss of these “expected future profits.”

In her comments to introduce the amendment, Senator Elizabeth Warren mentioned that over 100 law professors had sent a letter to Congress and the Obama administration urging them to not include the ISDS in the TPP. I discovered that she was quoting from the “Analysis of Leaked Trans-Pacific Partnership Investment Text by Lori Wallach of the Citizen’s Trade group” that was released on Wednesday, March 25, 2015. You can download the leaked chapter at https://wikileaks.org/tpp-investment/

This 13-page analysis includes this paragraph: “A March 2015 letter signed by 139 U.S. law professors urges congressional leaders and the Obama administration ‘to protect the rule of law and our nation’s sovereignty by ensuring ISDS is not included” in the TPP, stating, “ISDS threatens domestic sovereignty by empowering foreign corporations to bypass domestic court systems and privately enforce terms of a trade agreement. It weakens the rule of law by removing the procedural protections of the justice system and using an unaccountable, unreviewable system of adjudication.’ A May 2012 letter signed by former judges, law professors and other prominent lawyers from TPP nations warns: ‘the foreign investor protections included in some recent Free Trade Agreements (FTA) and Bilateral Investment Treaties (BIT) and their enforcement through Investor-State arbitration should not be replicated in the TPP. We base this conclusion on concerns about how the expansion of this regime threatens to undermine the justice systems in our various countries and fundamentally shift the balance of power between investors, states and other affected parties in a manner that undermines fair resolution of legal disputes.”

This analysis is well worth reading to become fully informed of the dangers of international tribunals adjudicating cases instead of our domestic legal system. Two of the most dangerous features of the ISDS chapter are:

  • “Foreign investors alone would be granted access to extrajudicial tribunals staffed by private sector lawyers who rotate between acting as “judges” and representing corporations in cases against governments, posing major conflicts of interest.”
  • “Foreign tribunals would be empowered to order governments to pay unlimited cash compensation out of national treasuries.”

Senator Warren also mentioned that even the CATO Institute, a champion of free trade, had recommended removal of ISDS from the Trade Promotion Authority legislation. The report she referenced is Free Trade Bulletin No. 57, “A Compromise to Advance the Trade Agenda: Purge Negotiations of Investor-State Dispute Settlement,” by Daniel J. Ikenson dated March 4, 2014. The CATO Institute is a well-known American libertarian think tank, so its recommendations should have had some influence on Republicans in the Senate, but evidently did not. Instead, the vast majority of them chose to follow their cue from the international corporate elite behind this treaty.

Ikenson wrote that there are “practical, economic, legal, and political reasons to expunge ISDS from current trade negotiations.” He presented “Eight Good Reasons to Drop ISDS from TPP and TTIP, which you can read in full at the above link.

Since there was very little information on the Trans-Pacific Partnership Agreement in the major media prior to its introduction in the Senate and the failure of the first cloture vote on May 12th, it is imperative that freedom-loving organizations make Democrat and Republican Representatives in the House aware of the facts about the damage the TPP would do to our country.

America now stands at a crossroads, whether Americans will remain in control of their destiny or will be forced to bow before foreign tribunals and have even more of their jobs shipped overseas. If we are to protect our national sovereignty and our jobs, we must stop this legislation in the House by flooding their switchboards!

Members of the manufacturing task force of the California chapter of the Coalition for a Prosperous America of which I am chair have done their part by visiting the offices of all 33 of the southern California Representatives in the past year. The final hour is near. Let your Representative hear your voice! If you don’t know who your Representative is, click here.

Posted in Jobs, Manufacturing, National security, Trade Policy | 1 Comment »

Which Patent Reform Bill Doesn’t Destroy the American Patent System?

May 19th, 2015

In 2011, the Leahy–Smith America Invents Act (AIA) changed our patent system from a “first to invent” to a “first to file.” It also created easier ways to invalidate patents, called Post Grant Opposition procedures (PGOs). These PGOs are now invalidating 76% of the patents at which they are directed. Now, there are three patent reform bills in consideration by the House and Senate that are all purporting to fix some of the problems generated by AIA Act. They are:

The PATENT Act, S.1137, sponsored by Senator Grassley (R-IA), was sent to the Judiciary Committee on April 29, 2015 and would “amend title 35, United States Code, and the Leahy-Smith America Invents Act to make improvements and technical corrections…”

The Innovation Act, H. R. 9, sponsored by Rep. Bob Goodlatte (R-VA) was sent to the House Judiciary Committee on February 5, 2015 and would also “amend title 35, United States Code, and the Leahy-Smith America Invents Act to make improvements and technical corrections…”

The Strong Patents Act of 2015, S. 632, sponsored by Senators Chris Coons (D-DL), Dick Durbin (D-IL) and Mazie Hirono (D-HI) to “Enact balanced reforms to reduce abuse while sustaining American leadership in innovation.”

The first two bills are the result of the expenditure of hundreds of millions of dollars to lobby Congress by large corporations such as Google, Microsoft, Oracle, etc. over the last 8 years to produce a “patent troll” narrative and then fix the fictional problem of “patent trolls” with these bills.

Many consider the worst provision of both bills the “Loser-Pays with Joinder clause,” which means that 1) a patent holder who tries to defend a patent and does not prevail is potentially liable for the infringer’s legal costs (easily $1,000,000+), and 2) interested parties are joined in the liability. This means that the inventor could be liable for millions of dollars if he is unsuccessful in defending his patent against infringement, and an investor could be personally liable as well. With the odds of losing so high, Loser-Pays makes it impossible for almost all inventors to enforce their patent rights against patent pirates or ever get outside investment.

Under The Innovation Act (H.R. 9), a university could be liable for millions of dollars if patents created and licensed through university research were unsuccessful in defending against infringement. The university could be held liable for the legal costs of the infringer if the patent holder did not prevail in the patent infringement case because of the Loser Pays with Joinder clause.

The PATENT Act (S. 1137) exempts universities and pharmaceutical companies from the Loser Pay with Joinder clause, but makes it worse for small inventors. There is now a requirement that a patent holder certify that he has the funds for the Loser Pays liability before he can sue for infringement (easily $1,000,000 plus). This will eliminate the ability of virtually every independent inventor to defend a patent. And, if an investor provides the funds, he will be personally liable for the Loser Pays (piercing the corporate veil and throwing away hundreds of years of corporate law).

Randy Landreneau, founder of Independent Inventors of America, states the following regarding the exemptions: “It is shameful that we have a political system where groups with political influence get favored while the rest of us suffer. Universities and drug companies will still have patent protection, but the independent inventor, the individual the American Patent System was created for, will be destroyed. This is an all-out attack on a most basic and important part of America. This is arguably the worst and most damaging legislation in American history.”

Both of these bills would do considerable damage to the patent system, specifically harming inventors and small patent-based businesses. If either of these bills becomes law, inventors and small businesses will not be able to enforce their patent rights against large corporations with deep pockets while corporations like Google, for example, would still be able to enforce their patents against small businesses with devastating consequences to those small businesses.

Paul Morinville, Founder of US Inventor stated, “For the last two years, inventors have lost the large majority of patent cases. Post grant opposition procedures (PGO) created in the America Invents Act (AIA) invalidate patents at rates above 75%. Article III courts invalidate patents at similar rates under the indefinable “abstract idea” category of subject matter ineligibility. Today, inventors are losing more cases than at any time in the 224-year history of the U.S. patent system.”

He added. “Patent litigation is about risk and cost versus reward. If risk or cost is too high in relation to reward, an inventor or a small business cannot enforce a patent. This bill creates enormous risk and cost, and consequently it creates a patent system without inventors. An infringement suit can cost millions of dollars for each side. Prior to the American Invents Act (AIA), it was possible to protect small inventions from patent infringement. But, with the huge increase in inventor losses due to the AIA and the indefinable “abstract idea,” only inventions with exceptionally large damages can be enforced. It’s simple math, damages must exceed the cost of the case plus the cost of risk. Thus, the high damages bar would make the vast majority of patents unenforceable by inventors.”

In an opinion article in The Hill, Robert Schmidt, co-chair of the Small Business Technology Council, wrote, “H.R. 9, purported to solve a patent troll problem, is instead the next step in crushing competition from new small firms, creating “Big Tech Patent Ogres” that can ignore smaller players and their patents. This new bill makes it almost impossible for small technology startups to enforce their patents… H.R. 9 will retard innovation and cost America jobs and wealth. H.R. 9 is contrary to the Founding Fathers’ Constitutional intent, contrary to the policies of 220 years of patent law, and contrary to stated intention of the President and Congress to stimulate innovation.”

In contrast, The Strong Patents Act, S.632 would be good for all inventors ? individual, small businesses, universities, and large corporations. It would “would effectively crack down on the abusive practices of so-called patent trolls without weakening the U.S. patent system” according to the Association of Public Land Grant Universities.

The Biotechnology Industry Organization (BIO) “supports the STRONG Patents Act of 2015 and will continue to advocate for passage of legislation to curbing abusive patent practices, while not undermining the ability of patent owners to defend their inventions and businesses against infringement.”

Landreneau states, “The Strong Patent Act would rein in the Post Grant Opposition procedures so that they are more like federal court procedures used in invalidating property rights, rather than administrative procedures designed so that 76% of patents they are directed at are invalidated.”

Another advantage of this bill is that it “Eliminates fee diversion through the establishment of a new USPTO revolving fund in the U.S. Treasury.” It also “Empowers the Federal Trade Commission to crack down on abusive patent-related demand letters.”

Senator Coons’ website makes the following convincing argument for the importance of preserving a strong patent system:

  • “IP-intensive industries comprise one-third of U.S. GDP ($5.5 trillion), generate 27 million jobs, and pay employees over 30% more than other industries.
  • 75% of venture capital investors consider the value of patents when making funding decisions in small businesses (97% in the biotech industry).
  • Patents inspire innovation in fields that require long-term investment in R&D: from life-saving therapies to new generations of wireless technologies.
  • Patents allow us to benefit from the genius of small inventors. With a strong patent right, individuals create inventions that disrupt dominant companies. 
  • U.S. leadership in innovation is due in no small part to an unrivaled patent system. Strong patents today provide for game-changing inventions tomorrow.”

There is no question in my mind that the Strong Patents Act is the only bill that truly protects American innovation. As a director of the newly incorporated San Diego Inventors Forum, I join our board President, Adrian Pelkus, in urging everyone to contact their Senators and Congressional representatives to urge them to oppose the House’s Innovation Act (H.R.9) and Senate’s PATENT Act (S.1137) and vote “yes” on the Strong Patents Act of 2015 (S. 632).

Pelkus said, “We could lose everything if either of the two bad bills were passed by Congress. It could usher in the end of innovation as we know it and make it impossible for individual inventors to raise the money they need from investors to get their new products into the marketplace.”

Now is the time to fight with us to keep innovation alive and well in America and not allow large corporations to squash individual inventors.

 

Posted in Innovation, Patent Reform, Technology | No Comments »

Would the Trans Pacific Partnership really be Free Trade?

May 5th, 2015

Free trade ? what does this mean? Businesdictionary.com defines it as “The interchange of goods and services (but not of capital or labor) unhindered by high tariffs, nontariff barriers (such as quotas), and onerous or unilateral requirements or processes.” By this definition, would the Trans Pacific Partnership really be free trade?

Last week, Congressman Tom McClintock (R-CA) gave a speech in support of passing the Trade Promotion Authority aka “Fast Track Authority” saying, “Every nation that engages in trade prospers from it. Every nation that fails to trade, fails to prosper…It is freedom that produces prosperity – the free exchange of goods between people and between nations for their mutual betterment. The greater the freedom, the greater the prosperity.”

This is only true if the nation benefits from the trade by exporting more than it imports. In 2014, the U. S. imported $2.34 trillion in goods compared to exporting $1.62 trillion in goods, resulting in a trade deficit of $721.6 billion. Because we have a surplus in exports of services, our total trade deficit was reduced to $505 billion. It seems to me that we are not benefitting from our current trade agreements as we should and that another trade agreement with 11 more countries would only make our trade deficit much worse.

Rep. McClintock argued that “…since the 1930’s, Congress has chosen to exercise its responsibility by establishing the broad terms of the agreement it seeks and then giving explicit instructions to our negotiators at the beginning of the process. IF, and only IF, these objectives are advanced in the agreement, Congress will then consider it as a whole package and either approve it or reject it.

McClintock said, “That process is now called ‘Trade Promotion Authority. It has stood the test of time, has been used to the great benefit of our nation in the past and has never been controversial until now… It is precisely because of this mistrust that the Trade Promotion Authority sets forth some 150 objectives that must be advanced before Congress will even consider the resulting agreement. And once those objectives are attained, a majority of the Congress must still approve it.”

What is wrong with this argument is that the Trans Pacific Partnership Agreement has been in negotiation for five years without any involvement by Congress; it is not at the beginning of the process. Rep. McClintock seems to mistakenly believe Congress retains the power to direct the President’s negotiations when in fact there is only one more round of negotiations scheduled.

Rep. McClintock wrongly asserts that Congress set forth 150 negotiating objectives in the TPA that the President “must” comply with. This statement is not true. None of the objectives are binding and most are simply vague aspirations of global goals. Indeed, the House Ways and Means Committee firmly rejected any efforts to make the negotiating objectives binding.

The President also is empowered to unilaterally draft “implementing legislation” that will change U.S. laws and regulations to comply with the agreement he negotiated. Through the TPA, Congress even limits its own ability to debate and prevents its ability to amend the implementing legislation.

The Obama Administration made the draft text of the agreement classified and has kept it hidden from public view, making it illegal for the press, experts, advocates, or the general public to review the text of this agreement. Even Congressional members can only view it at the office of the U. S. Trade Representative without pen, pencil, paper or a camera to take picture of any pages. They are also prohibited by law from discussing the specifics of the text in public.

This is why on April 25th Senators Sherrod Brown and Elizabeth Warren wrote President Obama a letter stating, “We write to request that you promptly declassify the latest bracketed negotiating text of the TPP and release it publicly before asking Congress to vote on “fast track” authority to facilitate the TPP’s ratification.”

They add, “Because the negotiations are largely complete, there is no reason the TPP must remain secret from the American people before Congress votes on fast track authority. In 2001, President George W. Bush made public a draft of the scrubbed bracketed text of the Free Trade Area of the Americans (“FTAA”) agreement several months before Congress granted partial fast track authority to facilitate ratification of that deal.”

They conclude, “We have an additional concern: the fast track legislation currently under consideration goes far beyond the TPP. Fast track, as currently written, would preclude Congress from amending or filibustering any trade agreement submitted to this Congress or any future Congress—potentially through 2021.”

Their concerns are shared by Congressman Dan Lipinski (D-IL) who has introduced “the Truth, Transparency, Accountability, and Fairness in Trade Act to protect American workers being harmed by foreign trade agreements.” His bill would require “the Executive Branch to review and report on the operation of existing trade agreements to determine whether American jobs and exports are being negatively impacted. If negative impact is found, any Member of Congress would have the right to submit a “termination bill,” which would have expedited consideration and allow for the cancellation of some or all of the trade agreement causing damage. After passage of a termination bill, any renegotiated agreement would be barred from being considered under Trade Promotion Authority (the fast-track process).”

It is not just Democrats that are opposed to the Trade Promotion Authority bill. Senator Jeff Sessions (R-AL) expressed his concerns about the Trade Promotion authority in an interview on the John Fredericks Radio Show on Thursday, 4/23. (WHKT, AM 1650, and a Network of AM Stations across Virginia.) He subsequently released a critical alert of his Top Five Concerns with Trade Promotion Authority.

“Conservatives like Reps. Walter Jones and Duncan Hunter have said they oppose the measure, wary of giving the White House any more authority. At the end of last year, 19 House Republicans signed a letter calling on their colleagues not to pass TPA in the lame-duck session.”

At www.obamatrade.com, you can listen to videos of several conservatives urging Republican Congressional Representatives to oppose the Trade Promotion Authority, including TV host Lou Dobbs, Frank Gaffney, President of Center for Security Policy, former UN Ambassador Alan Keyes, Niger Innis, Executive Director of TheTeaParty.net, Richard Manning, President of Americans for Limited Government, and Sandy Rios of American Family Association. The American Family Association is part of a broad coalition of conservative organizations urging Congress to reject granting President Obama so-called “fast track” power. Author, talk show host, and defender of the Constitution Mark Levin says no conservative should support Fast Track “Trade Promotion Authority.”

Michael Stumo, CEO of the Coalition for a Prosperous America, stated, “The minority staff of the House Ways and Means released a side by side comparison of this week’s Fast Track bill with the bill from January 2014. Basically it is more of the same. Will they never learn? From CPA’s perspective, the new bill is a failure.”

The new bill does not have any enforceable provision to address foreign currency manipulation. It does not address the foreign border adjustable taxes (VATs), which are tariffs by another name. It has insufficient language to address the problem of government subsidies to state owned enterprises. It allows the Investor State Dispute Resolution to be handled by the foreign tribunals without providing a rationale as to why the U. S. court systems are not good enough.

For these reasons and other reasons mentioned in my previous article, “What would be the Impact of the Trans Pacific Partnership Agreement,” this Agreement is the opposite of free trade. It is government controlled trade and is so overreaching on non-trade issues that it would control many aspects of the lives of all Americans, not just businesses.

The Trade Promotion bill passed the House Ways and Means Committee and the Senate Finance Committee on April 22nd and 23rd. It could be brought up for a vote in the full House and Senate any time after Congress gets back from this week’s recess. Time is of the essence! Don’t give up your freedom! Tell your representatives in Congress to vote NO on Fast Track.

Posted in Jobs, Trade, Trade Policy | No Comments »

New Technologies Featured at DMEDS 2015

April 30th, 2015

In these busy times when face to face appointments have nearly become a thing of the past, don’t miss the opportunity for face to face interaction at the Del Mar Electronics and Design Show on May 6th and 7th at the Del Mar Fairgrounds.

This show is our only local trade show and convention for people who design, manufacture, and test products. The two-day event is free for industry professionals and will be held at the Del Mar Fair Grounds with plentiful free parking and easy highway access. Show hours are 10:00 AM – 5:00 PM Wednesday, May 6th and 10:00 AM – 3:00 PM, Thursday May 7th. Stay to network at the free reception at the Mexican Plaza and enjoy the free food and music after the show ends on the first day. Visit here for more information or to register.

Over the last 19 years, the show has evolved from a sales rep/distributor show to become a major exhibition of local, regional, and national manufacturing companies and organizations.

Since San Diego is a hotbed of innovation and start-up companies, there will be a special program on May 6th starting at 3:00 PM, “Starting Block to Success – Utilizing San Diego’s Resources to Start and Grow Your Business.” First, CONNECT CEO Greg McKee will share some of his experience as an entrepreneur and executive at innovation companies, as well as discuss the ways in which CONNECT supports tech and life science companies at every stage of the business lifecycle. CONNECT provides resources for start-ups, mid-market, and multi-national enterprise companies.

From 3:30 – 4:00 PM, Jeff Draa, President & Board Member of Tech Coast Angels will discuss available sources of capital for startup companies, how to access these sources, which are the right ones at the right times. He will answer the questions about what early stage investors want to see from startups to help guide entrepreneurs through successful funding events which can determine success or failure in early stage businesses.

From 4:00 – 4:30 PM, Rory Moore, CEO and Founder of the EvoNexus incubator will share real life examples of companies at that have been “incubated” at EvoNexus.

Finally, from 4:30 – 5:00 PM, Lou Kelly, Director & Chairman of the San Diego Regional Innovation Cluster at San Diego State University will describe how their federally funded organization brings together 23 organizations in the San Diego area to create a customized package of support for high tech small businesses to help them grow, commercialize their product, and bring it to the market.

Program Manager Douglas Bodenstab stated “This year we are focusing on San Diego’s entrepreneurial spirit with a special program consisting of San Diego’s premier incubators, funding, and entrepreneurial organizations. The Del Mar Fair Grounds presents a relaxed atmosphere that is representative of San Diego’s entrepreneurial business personality, and the show is seen by the local community as the annual event to catch up with old friends, and also see what is new.”

New technologies will be displayed on the show floor with over 500 exhibitors. Dozens of free seminars will be provided on both show days. A few of the technical topics to be presented are:

How to Reduce Costs Using Rapid Prototyping Techniques

3D Printing Processes and Materials

3D Functional Inkjet Printing of Solder Mask & Legend on PCBs

Batteries: Yesterday, Today, and Tomorrow

What’s New in Wire and Cable

Integrate Mobile and Cloud Technology in our Next Electronic Product

Non-technical topics include:

Growth Strategy: How to use Market Intelligence to Shorten the Sales Cycle

How to use LinkedIn to Advance your Career

Using Digital Marketing to Accelerate your Sales Cycle

I will be one of the first speakers at the show on the topic of  “How to Return Manufacturing to America” at 10:00 AM on Wednesday, May 6th, in Room A of the Mission Tower building, (adjacent to Mexican Plaza across from the show buildings). Workshops on this topic at other venues can cost hundreds of dollars, so save money by attending my free seminar.

It has become common knowledge that cost savings of outsourcing in China have eroded due to higher labor rates and shipping costs. Quality problems, IP theft, and counterfeit parts are causing companies to rethink where to source. I will discuss how to select the right parts and products to reshore, how to calculate the Total Cost of Ownership using the Reshoring Initiative’s worksheet, what are the latest trends of reshoring, and share some new case stories of companies that have reshored.

My company, ElectroFab Sales, will be exhibiting at Booth 223 in the Bing Crosby Hall at the show. We will have sample parts on display for Century Rubber Company and some of the companies we represent.
One of the other companies we represent will have their own booth in the Exhibit Hall: A Squared Technologies (booth # 437). Please drop our booths.

Posted in Economy, Manufacturing, Reshoring | No Comments »

What would be the Impact of the Trans Pacific Partnership Agreement?

April 20th, 2015

Last Thursday, Senators Hatch, Wyden, and Ryan introduced “The Bipartisan Congressional Trade Priorities and Accountability Act of 2015,” which is the Trade Promotion Authority bill that would grant President Obama “fast track” authority for the Trans Pacific Partnership Agreement.

The TPP agreement has been in negotiation since 2010 between the United States and 11 other countries around the Pacific Rim: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam. The TPP would cover 792 million people and 40% of world’s economic activity. It is a “docking agreement” so other countries could be added, and India, China, and Korea have expressed interest in joining the TPP.

There has been no involvement by Congress in the writing of the Agreement; instead, 600 corporate advisors have worked with the U. S. Trade Representative and his staff to write the more than 1,000 pages of the Agreement. Members of Congress did not even have access to view the Agreement until last year, and they cannot take any staff with them and are not allowed to take pen, pencil, paper, or a camera when they go view it at the U. S. T. R.’s office.

This Act would give Constitutional power over trade to the President and take it away from Congress. It would allow the Executive Branch to conclude negotiations and sign the Agreement before a vote by Congress. It allows only 45 days for committee analysis and only 15 days to bring it up for floor vote. It allows only 20 hours of debate by Congress and eliminates amendments, filibuster, and cloture. It requires only simple majority vote in the Senate and House whereas the U.S. Constitution Article 1, Section 8 Treaty clause requires 2/3 vote of Senate. The TPP would remain in effect until 2018, but could be extended to 2021.

What is missing in the TPP

 The TPP does not address any of the “predatory mercantilist” actions that our current trading partners are using that have created the enormous trade deficit that I wrote about a few weeks ago. These policies are: currency manipulation, “border adjustable” taxes called Value Added Taxes (VATs), which are a tariff by another name, government subsidies for State-Owned Enterprises, and “product dumping” by manufacturers in one country at below their cost to produce to destroy competition in another country.

“Over 20 countries, representing 1/3 of global GDP, are engaged in currency wars” by undervaluing their currency. These governments work with their central banks to manipulate the currency value in order to provide a competitive advantage to boost exports and impede imports. China’s currency is estimated to be 25-40% undervalued. As Paul Volcker, former Secretary of the Treasury, has explained, “In five minutes, exchange rates can wipe out what it took trade negotiators ten years to accomplish.” Foreign government intervention in foreign exchange markets is manipulation, not free trade.

Value Added Taxes (VATs) range from a low of 10% to a high of 24%, averaging 17% worldwide. The U. S. is one of a handful of 159 other countries that do not charge a VAT. This means that American products that are exported are an average of 17% more expensive when imported by a country that adds a VAT. In reverse, foreign imports are an average of 17% less expensive because the U. S. does not charge a VAT. Thus, we reduce tariffs through our trade agreements only to have our trading partners add a tariff by another name to the cost of our products that we export. This gives other countries an unfair competitive advantage in the global marketplace.

We have all read news stories about “product dumping” cases against U. S. industries, such as the tires, steel, and solar panel industries. With regard to government subsidies, the best example is how Foxconn was able to get Apple’s business for manufacturing the iPhone, iPad and now the iWatch because the Chinese government gave them the land and built the building for them.

What is wrong with the TPP?

 The TPP overrules prior acts of Congress and destroys our national sovereignty. For example:

 Buy American Act made Null and Void: For the manufacturing industry for which I play a role, the most adverse effect would be that the U.S. would have to agree to waive Buy America procurement policies for all companies operating in TPP countries. What this means is that the TPP’s procurement chapter would require that all companies operating in any country signing the agreement be provided access equal to domestic firms to bid on government procurement contracts at the local, state, and federal level. There are many companies that survived the recession and continue in business today because of the Buy American provisions for defense and military procurement. The TPP could be a deathblow for companies that rely on defense and military contracts, such as the U. S. printed circuit board industry. Most of the commercial printed circuit manufacturing was already offshored to China and South Korea years ago.

Product Labeling: Country of Origin Labeling, labeling of GMO products, and “organic” labeling could be made illegal because of being viewed as an “illegal trade barrier.” Even the health warnings on tobacco products could be viewed as an “illegal trade barrier.”

Many TPP countries are farm-raising seafood using chemicals and antibiotics that are prohibited in the U. S. and farmed seafood from China is being raised in water quality equivalent to U. S. sewers. According to Food & Water Watch, around 90% of the shrimp and catfish that Americans eat are imported. They warn, “The TPP will increase imports of potentially unsafe and minimally inspected fish and seafood products, exposing consumers to more and more dangerous seafood.”

Bill Bullard, CEO of R-CALF USA (Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America) has stated “that fast food restaurants are not required to disclose the origins of their beef and even when restaurants say the beef is “U.S. Inspected,” it is as likely as not to be imported.” When we were in Washington, D. C. together last month, Mr. Bullard told me that the increased importation of sheep and lamb from Australia and New Zealand could wipe out the American sheep ranching industry.

The California Farmers Union recently sent a letter to Rep. Davis Valadao (R-CA) stating, “Passage of the TPP would lead to a flood of dairy imports from New Zealand chronically depressing U. S. dairy producer prices…Agricultural imports will rise dramatically under the proposed agreement…The Agreement further poses a threat to the food security that we have long enjoyed as a nation because imports will replace U. S. produced agricultural products.”

Investor State Dispute Resolution: ISDR is designed to allow foreign corporations to bypass the domestic legal system to use to fight laws they don’t like. International Tribunals, not U.S. courts, would decide on lawsuits between “investor” companies in member countries and the U. S. Foreign “investors” could file lawsuits against city, state, and federal agencies for laws and regulations that may infringe on their “expected future profits.” They can also sue for compensation for the loss of these “expected future profits.” Thus, the TPP would infringe upon states’ rights as state and local governments have the constitutional authority to enact rules governing many areas covered by the TPP. But, they will no longer have the freedom to do so in the many regulatory areas covered by the TPP.

The TPP includes hundreds of pages that govern the policies of states concerning non-trade domestic policy and state and local officials would be bound to comply with much of the Agreement’s rules and regulations.

Space doesn’t allow me to cover all of the things that are wrong with the TPP with regard to non-trade issues, such as patent and copyright laws, land use, as well as policies concerning natural resources, the environment, labor laws, health care, energy and telecommunications.

Except for the large multinational corporations that participated in writing the Agreement and are its beneficiaries, there is something for everyone to hate. Opposition to the TPP cuts across party lines ? there are Democrats, Republicans, and Libertarians opposed to many of the “leaked” provisions of the TPP. Organizations from the left to the right are opposed to the TPP as negotiated. It will hurt the 98-99% of American manufacturers who had no place at the table in writing the Agreement. It will hurt American consumers and American workers of all ages. It will harm our environment and put our food and water safety at risk. But, most of all it will destroy our national sovereignty. Now is the time for you to write, call, or email your Senator and Congressional representative to urge them to vote “no” on granting Fast Track authority.

Posted in Country of Origin, Economy, Manufacturing, National security, Taxes/Regulations, Trade, Trade Policy | 1 Comment »

Additive Manufacturing is Making Rapid Technological Advances

April 7th, 2015

Advances in additive manufacturing and 3D printing are occurring so rapidly that there is now a daily newsletter on 3D printing for which I recently subscribed. Design News, Industry Week, Manufacturing.net, and many other publications are also publishing frequent articles on additive manufacturing, and most trade shows are now scheduling one or more sessions related to the topic of additive manufacturing/3D printing.

The latest e newsline from Manufacturing.net had the headline, “Liquid Printer Turns 3D Manufacturing Upside Down” and describes the new 3D printer introduced by Carbon3D at the TED conference on March 16. The new “3D printer can print up to 100 times faster than conventional additive manufacturing thanks to its ability to ‘grow’ materials upward from a pool of liquid,” using “their Continuous Liquid Interface Production (CLIP) technology, which builds material upward in a continuous stream.” The Carbon3D printer uses UV light to trigger “polymerization, the creation of three-dimensional polymers, while oxygen inhibits the reaction” and “can be used with a broad range of polymeric materials.”

Dr. Joseph DeSimone, the CEO and co-founder of Carbon3D, said “Our CLIP technology offers the game-changing speed, consistent mechanical properties and choice of materials required for complex commercial quality parts.”

A couple of weeks ago, I was contacted by Zach Simkin, Co-President of Senvol LLC, a company that does analytics exclusively for the 3D printing industry, letting me know that they recently launched a tool, the Senvol Database, which is the first and only searchable database for industrial 3D printing machines and materials. Simkin said, “Users are able to search the database by over 30 fields, such as machine build size, material type, and material tensile strength. The database is online and free to access. The database already has thousands of regular users since launch, many of whom are engineers across a variety of verticals.”

A few days later, I interviewed Annie Wang, Co-President of Senvol LLC, and she said, “Additive manufacturing is never going to replace 100% of subtractive manufacturing.” She emailed me the Video link to their presentation from the RAPID Conference last year ? “Determining Cost-Effectiveness of Additive Manufacturing.” She also emailed me the write up from the Wohlers report (“Cost-Benefit Analyses for Final Production Parts”), which gives an overview of two case studies that they did for GE and Johnson Controls. She said, “We used the Senvol Algorithm to determine whether or not it’s cost-effective to switch from conventional manufacturing to additive manufacturing.”

While the results of the analysis are proprietary, Wang and Simkin provide guidelines in the introduction of their study, writing, “However, just because a part can be produced using AM does not mean that it should be. Prior to implementing the technology, it is essential to conduct a thorough cost-benefit analysis. Generally speaking, it is often stated that AM is economically suitable for parts that have the following features: low volume, complex, and small. Although this can be true, it is not sufficient to only consider features of the part. Rather, when trying to determine whether a particular part can be cost-effectively produced using AM, it is critical to analyze the entire supply chain.”

In the report, they provide “… the seven supply chain scenarios that tend to lend themselves well to AM. If a part falls into one or more of these scenarios, then that part may be cost-effective to produce via AM. If a part does not fall into any of these scenarios, then the part almost certainly will not be cost-effective for AM given the current AM technology.” They are:

Scenario Description
 

Expensive to Manufacture
Do you have parts that are high cost because they have complex geometries, high fixed costs (e.g. tooling), or are produced in low volumes? AM may be more cost-efficient.
 

Long Lead-Times
Does it take too long to obtain certain parts? Are your downtime costs extremely high? Do you want to increase speed-to-market? Through AM, you can often get parts more quickly.
 

High Inventory Costs
Do you overstock or understock? Do you struggle with long-tail or obsolete parts? AM can allow for on-demand production, thus reducing the need for inventory.
 

Sole-Sourced from Suppliers
Are any of your critical parts sole-sourced? This poses a supply chain risk. By qualifying a part for AM, you will no longer be completely reliant on your current supplier.
 

Remote Locations
Do you operate in remote locations where it is difficult, time consuming, or expensive to ship parts to? AM may allow you to manufacture certain parts on-site.
 

High Import / Export Costs
Do you pay substantial import/export costs on parts simply because of the location of your business unit and/or your supplier? On-site production via AM can eliminate these costs.
 

Improved Functionality
AM can enable a part to be redesigned such that its performance is improved beyond what was previously possible.
© Senvol LLC

Just like a Total Cost of Ownership analysis is beneficial to determine whether or not to offshore the manufacturing of a particular part or product or return manufacturing to America from being manufactured offshore, Simkin and Wang state, “For parts that fall into one or more of the above scenarios, a detailed, quantitative cost-benefit analysis is warranted. To conduct such analyses, an algorithm, courtesy of Senvol, was used to determine what types of parts can be more cost-effectively manufactured using AM versus the status quo. The algorithm analyzes an array of variables that span the entire product life cycle.”

I told Wang that 3D printing is greatly accelerating the development of new products by the inventors that I advise as part of the San Diego Inventors Forum, but there are many times that a part can be made by 3D printing that can’t be replicated in a production process. For example, you can produce “chunky” plastic parts using 3D printing that cannot be made in the production process of injection molding. The use of 3D printing is enabling inventors to have a sample part to show/demonstrate in person or by means of a video to secure potential investors, but the inventor needs to do a careful analysis of the best manufacturing process to use for production, depending on where it will be used (home, office, or outdoors), product certifications required, and projected life cycle volumes, among other considerations. A 3D printed sample can be the essential ingredient of a video to do a crowdfunding campaign via Kickstarter, Indiegogo, or GoFundMe.

I told her that I give a presentation each year at our meetings on “How to select the right manufacturing process and sourcing location for your product,” which incorporates the Reshoring Initiative’s Total Cost of Ownership analysis. We agreed that companies could benefit from doing a cost-benefit analysis of comparing conventional manufacturing to additive manufacture as well as doing the Reshoring Initiative’s Total Cost of Ownership analysis when making the decision to manufacture in the U. S. vs. offshore.

Posted in Innovation, Manufacturing, Reshoring, Technology | No Comments »

Has the America Invents Act been Beneficial or Harmful?

February 23rd, 2015

In September 2011, Congress passed and the president signed the Leahy-Smith America Invents Act (AIA) that changed the U.S. patent system to the party “first to file” instead of the “first to invent to bring the U.S. in line with other countries who adopted first to file patent systems years ago, supposedly to simplify the patent process for companies that file applications in multiple countries. Its central provisions went into effect on September 16, 2012 and on March 16, 2013. Let’s examine whether or not the America Invents Act has been beneficial or harmful to innovation by America’s inventors and small businesses.

At the time, supporters said it would improve patent quality by creating a new process for reviewing patents after they have been issued and allow third parties to provide information on other parties’ applications. Rep. Lamar Smith, who chaired the House Judiciary Committee (R-TX) said, “This bill is designed to help all inventors. The current system “seriously disadvantages small inventors and companies” because it can lead to years of costly legal challenges to their patents.” Another supporter, Rep. Mike Michaud (D-ME), said, “We need to make it easier for companies to innovate and make things here at home, and this bill does that.”

Opponents argued that there was no reason to change the U.S. system, and inventors and small businesses complained that switching to a “first to file” system would give large companies an advantage and hurt individual inventors.

Rep. Sensenbrenner (R-WI) and Rep. John Conyers opposed converting the U. S. patent system to a “first to file” system, but their amendments to strike this language were rejected. Rep. John Conyers (D-MI) said the legislation would “benefit large multinationals at the expense of independent inventors and small businesses” and would “harm jobs, harm innovation and harm our nation.”

Rep. Don Manzullo (R-IL) voted against the bill and stated, “This bill would weaken our strong patent system that has protected American entrepreneurs for centuries from overseas companies trying to pirate their inventions.” Manzullo said. “Any patent reform we undertake should focus on reducing the backlog in patent applications, not dramatically altering the system and giving multinational corporations advantages over American innovators. The last thing we should be doing right now is giving foreign companies an even greater opportunity to take our ideas and our jobs.”

What has happened in the last two and a half years since the American Invents Act went into effect?

Paul Morinville of www.USInventor.org, wrote, “An inventor is the odds on favorite to lose in today’s patent system. Since the America Invents Act created post grant opposition procedures (PGO), inventors have lost the large majority of patent cases. PGO’s invalidate patents at rates above 75%. Article III courts find patents invalid under the indefinable ‘abstract idea’ at similar rates. Today, inventors are losing more cases than at any time in the 224-year history of the U.S. patent system.”

He added, “An infringement suit can cost millions of dollars for each side. Prior to the AIA, even small inventions could be enforced. With the huge increase in inventor losses due to the AIA and the indefinable “abstract idea,” only inventions with exceptionally large damages can be enforced. It’s simple math, damages must exceed the cost of the case plus the cost of risk.”

Patent Agent David B. Waller, J.D. M.S., Patent Success Strategies, LLC, commented, “Recent changes in the United States Patent Laws under the America Invents Act have had beneficial effects for some and significant disadvantages for others. In particular, changing from a first-to-invent to a first-to-file system, while conforming U.S. patent law to a worldwide standard with respect to ownership, has significantly impacted the exclusive rights granted to inventors through the U.S. Constitution and simultaneously impacted collaboration among research groups. The new Post Grant Opposition (PGO) procedures now provide an avenue to invalidate issued patents with resulting costs significantly lower for the challenger than the patent holder. This presents a distinct advantage for those with substantial resources to challenge patents that may directly compete with their technology.

To compound an already problematic system, the Innovation Act that passed the House last year proposed provisions that while seemingly helpful to independent inventors, would have been detrimental. The provision that provided a losing party pay for an infringement suit created a substantial advantage for a party having the greater financial resources. This bill never passed the Senate, and in view of other potentially detrimental provisions of the AIA, it will be important to make changes in this law to readjust and balance the benefit for all inventors.”

Patent Agent George Levy explained some of the harmful effects of the America Invents Act: “The new law presents a terrible dilemma for the small inventor. He can’t talk about his invention until the invention is filed (any competitor could simply publish the inventor’s idea under the competitor’s name, thereby locking the inventor out, or even worse, file a patent in their own name, with or without improvements) – The so called grace period is worthless. He can’t file until he is funded, and he can’t be funded because potential investors are scared of post grant reviews invalidating the granted patent. He does not have the funding to protect himself from a post grant review.

The whole “troll” idea is a red herring. In fact the biggest trolls or non-practicing entities are the large corporations whose legal department make a point of erecting a picket fence around competitors. Note: “A well-known tactic to devalue a competitor’s patent is to create a “picket fence” around it. Using this tactic, a competitor attempts to surround the pioneering patent with many patents covering incremental innovations, thereby hindering freedom to operate or freedom to advance the technology along logical trajectories.”

Mr. Levy added, “A single patent is granted to an inventor who cannot practice it because of lack of funding, and large corporations won’t license the patent from him. However, if the patent interferes with the business of a corporation, the inventor is called a troll and his patent is subjected to post grant review…A large number of patents, called “picket-fence,” are granted to a large corporation and grouped around a competitor’s technology. The patents are specially designed to interfere with the competitor’s business. Such strategies are commonly used by corporate legal teams.”

At our San Diego Inventors Forum on February 12th, President Adrian Pelkus, said, “We are a nation of creators and builders living at a time when science and technology is exponentially enriching our quality of life. Disturbing the evolution of ideas disrupts our development as a society, and changes to our patent laws are doing just that. American inventors create new products and jobs. The more we enable inventors, the more our country prospers and the better our lives become. We can expect only the opposite if we if we stifle inventors by allowing laws to be passed by corporations pressuring our representatives to protect only their interests.”

Thus, my answer is that the American Invents Act has been harmful to American innovation, and the consequences demonstrate that once again our elected representatives in Congress sold out to the interests of multinational corporations at the expense of inventors and small businesses.

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Anti-Inventor Legislation Being Proposed in Congress

February 3rd, 2015

Sometimes it seems we have to play “Whack-a-mole” against well-meaning legislation that would have harmful, unintended consequences. Last year, the Innovation Act, H.R. 3309 passed the House of Representatives by a 325 – 91 vote on December 5, 2013. It seemed like a comparable bill would easily pass the Senate until a concerted effort to defeat this bill was undertaken by Randy Landreneu, Founder of the Independent Inventors of America, and another inventor, Paul Morinville, by visiting key people in the offices of about 60 Senators.

Their efforts were aided by such organizations as CONNECT and Biocom in San Diego, the Biotechnology Industry Group, and the Independent Inventors of America. Because of the opposition by these groups and other groups not cited, the bill ended up being dropped in the Senate.

Why did these organizations oppose this effort on patent reform? Gary Klein, V. P. Public Policy, of San Diego’s CONNECT organization, stated: “A startup company’s main asset is its intellectual property. Most investors’ first question to startups is about how their technology is protected. The Innovation Act that passed the House has several provisions – fee shifting, covered business methods, joinder rules, discovery and customer stay – that will have some very serious adverse consequences for small/startup companies, universities and research institutions, as well as companies who use licensing as a business model.”

Joe Panetta, President and CEO of Biocom, stated “Not only does H.R.3309 fail to adequately address the abusive litigation practices it aims to curb, but it would place burdensome and unnecessary requirements and penalties on all patent holders. The bill is likely to inadvertently harm the world’s greatest innovation system by limiting legitimate patent holders’ ability to assert their rights.”

The Biotechnology Industry Group (BIO) was concerned that it would undermine biotech research and innovation. Daniel Seaton noted on BIO’s Patently Biotech blog, “the Act would ultimately make it more difficult for patent holders with legitimate claims to protect their intellectual property…Provisions in the legislation would erect unreasonable barriers to access justice for innovators, especially small start-ups that must be able to defend their businesses against patent infringement in a timely and cost-effective manner, and without needless and numerous procedural hurdles or other obstacles.”

The Independent Inventors of America against Current Patent Legislation, representing independent inventors and small patent-based businesses across the country, disputed the claim that patent infringement litigation had escalated. They initiated a petition stating “The Government Accounting Office Report required by the America Invents Act finds that there is no ‘patent troll’ problem. Data supporting the claim of billions of dollars of reported cost cannot be verified and actually represent primarily voluntary and court directed license agreements for valid patents. In addition, analysis of patent litigation shows that the number of patent suits relative to the number of patents issued today remains consistent over the 200 plus year history of the patent system with the exception of a short period prior to the Civil War when the rate was higher than it is today. The reports supporting this latest round of legislation are simply not valid.”

They argued that “what is being characterized as a “patent troll,” and the target of the proposed legislation, is really an investor. As individual inventors and small patent-based businesses, we need investors to practice and protect our inventions. A patent is sometimes the sole asset we can leverage to attract that investment. Damaging investors therefore damages inventors.”

The petition stated, “This legislation will levy grave harm upon independent inventors and small patent-based businesses, as well as the investors we need to help commercialize new technologies and to protect our inventions.” They “stand firmly against the proposed legislation and any future legislation that would weaken the American Patent System.” The governing body of the San Diego Inventors Forum, of which I am a member, signed the petition along with many of our members.

The main reasons why inventor organizations opposed the Act were:

Loser Pays – would significantly increase the risk and cost of defending a patent and “could be fatal to a large percentage of inventions.”

“Joinder” clause – allows investors to be personally liable for legal fees if inventor loses lawsuit, so this would severely limit investment in new technologies.

Patent Term Adjustment – eliminates a patent adjustment for a delay in patent issuance caused by the U. S. Patent Office (Note: Patents are granted for 17 years, but if it takes five years to get a patent, the patent term would be only 12 years instead of 17.)

New Bill in the Works

Now, Washington, D. C. insiders are indicating that legislation very similar if not identical to the Innovation Act will be introduced in the House of Representatives as early as February.

Why is a new version of the Innovation Act being proposed? The stated purpose is to curb frivolous lawsuits for patent infringement by so-called “patent trolls,” a derogatory term defined by Wikipedia as “a person or company who enforces patent rights against accused infringers in an attempt to collect licensing fees, but does not manufacture products or supply services based upon the patents in question, thus engaging in economic rent-seeking. Related, less pejorative terms include patent holding company (PHC) and non-practicing entity (NPE).”

Proponents of the Innovation Act said that” in the two years since the AIA was enacted, patent litigation has exploded. More and more firms are acquiring broad patents not to use the technology but rather to extract licensing fees from companies that infringe the patents accidentally…so a number of industry groups that weren’t traditionally involved in patent debates have begun agitating for patent reform.”

However, the Patent Freedom organization states, “NPEs are not all cut from the same cloth. Some inventors choose not to pursue the development, manufacturing, and sales of their inventions. They may lack the resources to do so, or the interest, passion, and commitment that such an effort requires. Instead, they may seek to license their inventions to others who can use them to deliver better products and services, often with the assistance of those with experience in this area. Or they may choose to sell the patents outright…. some entities buy patents with the express purpose of licensing them aggressively. For instance, about 25% of “parent” NPEs tracked by Patent Freedom are enforcing only patents that they had acquired. Another 60% are asserting patents originally assigned to them, and the remaining 15% are asserting a blend of originally assigned and acquired patents”

If new legislation is crafted to be similar to the Innovation Act, it would create additional requirements as part of the legal process associated with patent infringement under United States law. Some of the provisions that were in the Innovation Act are paraphrased below:

  • Requires specificity in patent lawsuits – requires specified details concerning each claim of each patent that was allegedly infringed.
  • Makes patent ownership more transparent with a “Joinder” clause requiring patent plaintiffs to name anyone who has a financial interest in the patent being litigated. This would include investors.
  • Makes the loser pay – “if a losing plaintiff cannot pay, the bill would allow a judge to order others who had a financial stake in the plaintiff’s lawsuit to join the lawsuit and pay the costs of an unsuccessful patent lawsuit.” This could force investors to participate in paying the legal fees, which would discourage investment.
  • Delays discovery to keep costs down – gives time to allow the courts to address legal questions about the meaning of patent claims with the goal of reducing legal costs and allow more frivolous lawsuits to be resolved before defendants have incurred large legal bills.
  • Protects end users – allows technology vendors to step into the shoes of their customers and fight lawsuits against trolls on their customers’ behalf in cases where restaurants, supermarkets, airlines, casinos, real estate agents and other brick-and-mortar businesses are being sued for using technology such as Wi-Fi instead of the manufacturers of the equipment.

Randy Landreneu, Independent Inventors of America, stated: “There were a number of provisions fatal to independent inventors, like Loser Pays (if you sued a corporation for patent infringement and did not prevail, you would be liable for their legal costs, which could be over $1,000,000). The Innovation Act also had the provision that an investor with an interest in your patent would be personally liable for these legal costs. This would have eliminated the ability to defend a patent for the vast majority of inventors, as well as greatly reducing any investment in patent related startups.”

Adrian Pelkus, SDIF President, states, “A new version of the Innovation Act horrifies me in the way that it would allow corporations to beat up on small inventors. Financial ruin for inventors would be extremely easy due to the nature of startups, meaning most inventors could lose their fledgling businesses disputing challenges to issued Intellectual Property. If we increase the risk that their IP will be challenged (perhaps even frivolously just to stop them from progressing to market), innovation will grind to a standstill.

At a time when we need American ingenuity and investors to rebuild our economy, taking steps to diminish our rights as inventors is un-American, economically dumb and intellectually suicidal. Stifling innovation in a technologically based society is a sure path to economic ruin which is why the USPTO system was originally designed to reward not punish the inventor. We are a nation of creators and builders living at a time when science and technology is exponentially enriching our quality of life. Disturbing the evolution of ideas disrupts our development as a society, and changes to our patent laws are doing just that. American inventors create new products and jobs. The more we enable inventors, the more our country prospers and the better our lives become. We can expect only the opposite if we if we stifle inventors by allowing laws to be passed by corporations pressuring our representatives to protect only their interests.”

I urge everyone to contact your Congressional Representative before the new bill hits the floor. Tell them that you are against further weakening of patent rights. Tell them that current efforts at “patent reform” will greatly hurt inventors and innovation in America. We must not stifle innovation if we want to create more American jobs and maintain our technological advantage in the global marketplace.

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Is there a Relationship Between our Trade Deficits and our National Debt?

January 27th, 2015

In his State of the Union address, President Obama asked Congress for Fast Track trade authority to move forward on the two trade agreements that have been in negotiations behind closed doors for the past four years: The Trans-Pacific Partnership Agreement and the Trans-Atlantic Trade Agreement. I have already written several articles about why Fast Track Authority should not be granted and the dangers of the TPP. The purpose of this article is to show that there is a relationship between our trade deficits and our national debt. As shown by the chart below, we now have a more than $18 trillion national debt.

Source: http://en.wikipedia.org/wiki/History_of_the_United_States_public_debt

Notice how it sharply ramps up starting in 2001. The recessions of 2001-2002 and 2008-2009 obviously played a significant factor in the increase in the national debt from $5.8 trillion in 2001 to its present level, because during recessions, there is a decrease in tax revenues and an increase in spending for unemployment benefits, food stamps, and other assistance, as well as spending on programs to attempt to stimulate the economy.

However, 2001 also coincides with the first full year of trade with China under the rules of World Trade Organization after “Congress agreed to permanent normal trade relations (PNTR) status,” which “President Clinton signed into law on October 10, 2000,” paving “the way for China’s accession to the WTO in December 2000.”

According to Alan Uke’s book, Buying Back America, the United States now has a trade deficit with 88 countries. Of course, some deficits are small, but some are enormous, such as China. According to the Census Bureau, our top seven trading partners are: Canada, China, Mexico, Japan, Germany, South Korea, and the United Kingdom. These seven countries represent 50.9% of our total trade deficit $ -461.3 billion for January – November 2014. At an average deficit of $40 billion per month, the 2014 trade deficit will exceed $500 billion. Our 2014 trade deficit with China alone was $-$314.3 billion for January – November, representing 68% of the total.

Some may claim that we are still the leader in advanced technology products, but this is no longer true. The U. S. has been running a trade deficit in these products since 2002, which has grown to an astonishing average of nearly $90 billion per year since 2010.

Even our most recent trade agreement, the Korea U. S. Free Trade Agreement (KORUS FTA), which went into effect on March 2012 has had negative impact. The Office of the   Last March, the U. S. Trade Representative for the Obama Administration touted, “Since the Korea agreement went into effect, U.S. exports to Korea are up for our manufactured goods, including autos, exports are up for a wide range of our agricultural products, and exports are up for our services.” However, the reality is that our imports continued to exceed our exports, and the U. S. trade deficit with Korea jumped from -$13.62 billion in 2011 to -$22,838.3 billion through November 2014, which is a 60% increase in two and a half years.

china trade deficitSource:  http://www.businessinsider.com/chart-us-trade-deficit-with-china-2013-4

Notice that there is a similar upward slope on the above graph to the upward slope of our national debt chart. Anyone can see that our trade deficits have a significant impact on our national debt.

The only thing that kept our trade deficits from being higher than they have been is that fact that we have increased the exports of services to balance our imports of goods as shown by the following chart:

 

Year Total Goods Services
1999 -$258,617 billion -$337,068 billion $78,450 billion
2000 -$372,517 billion -$446,783 billion $74,266 billion
2002 -$418,955 billion -$475,245 billion $56,290 billion
2004 -$609,883 billion -$782,804 billion $68,558 billion
2006 -$761,716 billion -$837,289 billion $75,573 billion
2008 -$708,726 billion -$832,492 billion $123,765 billion
2010 -$494,658 billion -$648,678 billion $154,020 billion
2012 -$537,605 billion -$742,095 billion $204,490 billion
2014 -$461,336 billion -$673,612 billion $212,277 billion

Source: https://www.census.gov/foreign-trade/statistics/historical/exhibit_history.pdf

As you can see, our trade deficit in goods more than doubled from 1999 to 2004 and reached astronomical heights just before the worldwide recession.

So how do our trade deficits add to the national debt? One way is that many products, especially consumer products, which were previously made in the U. S., are now made in China or other Asian countries, so we are importing these products instead of exporting them to other countries. The offshoring of manufacturing of so many products has resulted in the loss 5.8 million American manufacturing jobs and the closure of over 57,000 of manufacturing firms. These American workers and companies paid taxes that provided revenue to our government, so now we have less tax revenue and pay to pay for the benefits and public assistance for the unemployed and underemployed.

Our balance of payments indebtedness for trade and the additional cost to the government paid by taxpayers for these benefits has resulted in our escalating national debt. The cheaper China price of goods that we import instead of producing here in the U. S. results in a cost to society as a whole. We need to ask ourselves: Is the China price worth the cost to society?

I say a resounding NO! We need to stop shooting ourselves in the feet. We need to stop benefiting the one percent of large multinational corporations to the detriment of the 99% percent of smaller American companies.

Beyond stopping Fast Track Authority and the Trans-Pacific Partnership from being approved, we need to focus on achieving “balanced trade” in any future trade agreement. Until we change the goal of trade agreements, we should refrain from negotiating any trade agreement. The last thing we need is to increase our trade deficit more than it already is.

In addition, we need to facilitate returning more manufacturing to America by changing our tax policies and making regulations less onerous to manufacturers, without compromising our commitment to protect our environment. This is the only way that we will simultaneously reduce our trade deficit and the national debt.

 

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