It’s amazing how our elected officials continue simultaneously to tout technology and innovation as the keys to creating jobs and for the twenty-first century, and deny the PTO the ability to use the revenue the PTO generates to improve its systems. The news posted April 22 on the Director's Forum blog that as a result of Congress’ decision to continue to divert PTO funds, the PTO will need to delay implementation of procedures to expedite applications, again delay updating its outdated computer systems, scrap plans to open an office in Detroit, reduce training and eliminate overtime, can only be described as disheartening.

But this is nothing new. Fifty years ago, in Graham v. John Deere, 383 U.S. 1 (1966) Justice Clark wrote: “…the primary responsibility for sifting out unpatentable material lies in the Patent Office. To await litigation is---for all practical purposes—to debilitate the patent system…In this connection we note that the Patent Office is confronted with a most difficult task.” The Court expressed concern about the backlog of applications and observed that the President had appointed a task force to “develop more efficient administrative procedures and techniques that will further expedite dispositions and at the same time insure the strict application of appropriate tests of patentability.”

The PTO would have a better chance of achieving those goals if it were permitted to use the money it generates to take the actions it will now need to postpone.

How Much, and How Should You Spend to Guard Your Trade Secrets?

To help prepare for necessary litigation in the event of a theft of company trade secrets, and to help allocate resources for trade secret protection, I recommend considering the Justice Department’ Checklist for Reporting a Trade Secret Offense. Not all the items on the list apply to every business, but if one complete the pertinent portions of the checklist before an incident occurs, one will be very far along toward determining what steps to implement and how to budget.

A recent study by Forrester Research estimates that resources available for trade secret protection are being misallocated. Other interesting Forrester conclusions are: although spending to mitigate risks of employee accidents (such as losing laptops or smartphones) is significant, losses from such mistakes tend to be relatively insignificant, the greater risk is from deliberate theft companies with more valuable secrets are targeted more often (that’s not surprising); and companies really don’t know how well their security measures actually work.

Forrester offers a number of good recommendations for businesses interested in protecting their secrets. If one considers those recommendations along with the Justice Department checklist, one will have gone a long way toward creating a plan.