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Response January 2012 Brown

U.S. Patent and Trademark Office
Mail Stop 24
Commissioner for Patents
lnventors Assistance Program
P.O. Box 1450
Alexandria, VA 22313-1450

Re: Response to Complaint of Stephen Brown by AbsolutelyNew, Inc.

Dear Commissioner:

ANI is grateful to Mr. Brown for bringing the inconsistent contract forms to our attention.  The management of AbsolutelyNew, Inc., (ANI) was immediately responsive to Mr. Brown’s complaint and fully forthcoming in its investigation.  ANI takes its relationships with, and its obligations to, its inventor clients very seriously.  We were distressed to learn that although the standard client Marketing Agreement that Mr. Brown signed was fully compliant, he was sent an earlier draft of the Agreement that was altered and deficient.  This is contrary to all ANI employees’ written acknowledgement that they will not alter the terms of any ANI client agreement without management approval.  Unilaterally changing the terms of any client agreement of misleading any client is also contrary to ANI’s stated company policy.

ANI’s immediate investigation revealed, and the responsible employee admitted, that he acted to conceal his actions from management without the involvement of any other employees.   Within hours of completing the investigation, ANI terminated the offending employee.  Since then, ANI reaffirmed its company policy regarding written and oral communications with clients in a meeting of all employees and further strengthened its internal controls to prevent future instances.  

When the issues came to light, Mr. Brown demanded that ANI stop work on his project even though the Marketing Agreement was about to expire, and ANI had substantially performed its part of the contract – presenting Mr. Brown’s invention to the primary marketing targets, including Bed Bath & Beyond.  At a meeting in ANI’s offices, the parties agreed that Mr. Brown had these options:  1) Rescind the existing Marketing Agreement and enter into a Licensing Agreement (if a retailer like BB&B was interested) or a new Marketing Agreement for an additional term of the original duration at no further cost to Mr. Brown.

Both parties acknowledged that in order to continue working together, they would have to execute a new well-founded Marketing or Licensing Agreement.  To see if that was feasible, and whether ANI could regain the trust necessary for a positive working relationship, ANI provided the information and performed all of Mr. Brown’s requests to the extent that it was able to without violating its employee’s rights.  ANI explained the legal and privacy reasons that prevented it from complying with his other requests.  At the San Francisco meeting, Mr. Brown agreed to advise ANI of his decision early in the following week.  All understood that the decision was necessary before ANI could do any more work on Mr. Brown’s behalf.  

After several weeks, Mr. Brown still had not advised ANI whether he wanted the refund and/or a new marketing or licensing agreement with ANI.  Instead, he continued to make demands that ANI had already addressed.  Mr. Brown demanded that ANI continue to perform under the Agreement he claimed was deficient.  Mr. Brown also repeatedly questioned the veracity of ANI’s CEO and conducted sub rosa investigations of ANI by secretly directing third parties to probe ANI employees.  Mr. Brown directly solicited ANI’s of East Coast Sales responsible for the Bed Bath & Beyond account to work directly for him and to give him proprietary ANI customer data.

Mr. Brown’s actions clearly indicated that he could not work with ANI again.  His inability or unwillingness to make the critical new agreement/refund decision left ANI with few options.  Obviously, ANI could not institute a new Marketing or Licensing Agreement without Mr. Brown.  Because ANI could not refund the full FEE while also continuing to perform the existing expired Marketing Agreement, the only option left to ANI was to rescind the Agreement, return Mr. Brown’s samples and offer a full Fee refund, along with five months of interest, totaling $21,490.

Mr. Brown refused this offer and replied with a demand of $106,084.50 plus additional attorney’s fees and costs – not the demand of $36,671 he states in his complaint.  In a counter-offer made with the assistance and approval of a professional mediator, ANI agreed to pay a total of $34,661.50 on the reasonable condition that he would supply documentation for his claimed expenses above the contract Fee.  Because he apparently could not provide the documentation to support his claim, Mr. Brown gave up on the additional $13,000 and cashed ANI’s check for $21,490 in full and final settlement of his dispute3s with ANI.

Because he accepted ANI’s full refund in late July 2011, ANI does not understand why Mr. Brown has gone out of his way to misrepresent ANI to bloggers and in complaints on various internet websites.  ANI disagrees with Mr. Brown about the quality of ANI’s services.  ANI’s performance was thorough and unaffected by the draft contract deficiencies.  ANI has incurred all of the expenses associated with its full performance, ANI accepts that it will not recover those expenses while Mr. Brown has obtained the “benefit of his bargain,” – ANI’s marketing services – as well as the return of his Fee plus interest.  In addition to its out-of-pocket costs, ANI also loses its opportunity to share royalties from the commercial success of Mr. Brown’s invention and/or potential profits from licensing and manufacturing it.

Although he promised to do so in his initial postings, Mr. Brown has not followed up to inform readers that he has been repaid his full Fee, with interest.  Without the promised follow up posting, one might well assume that ANI had never repaid Mr. Brown.  He has also misled the public by posting complaints under the fake name of “Guardian Angel” without disclosing that Guardian Angel is the same person who posted the original complaint.

Because his complaint is a public record, ANI must address some of the non-contract issues raised by Mr. Brown.  The lawsuits referred to in Mr. Brown’s complaint are meritless.  ANI has not had an opportunity to fully defend those actions, and ANI is currently doing so in both cases.  ANI is in full compliance with all California Secretary of State’s requirements, including a surety bond and ANI has never been legally unable to contract with anyone.

Mr. Brown’s contract deficiencies were an anomaly and ANI stands by the quality of its inventor services.  If you have any questions, please feel free to contact me.

Sincerely,

ABSOLUTELYNEW, INC.

/s/ Anthony R. Flores
Anthony R. Flores
VP-Legal & General Counsel
(800) 627-5382 x123

United States Patent and Trademark Office
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Last Modified: 3/5/2012 12:56:00 PM