Advent Product Development, Inc.
313 Commerce Drive
Pawleys Island, SC 29585

We are a marketing company that represents thousands of inventors wishing to market their inventions. As a marketing company, it is our concern that our inventor clients obtain the maximum possible patent protection for their invention as we proceed with our marketing efforts. Our concerns and desire to assist our clients, however, have been consistently thwarted by your attempts to prevent our clients from receiving patent protection, by preventing us from referring them to competent patent counsel.

It is well known that for decades, you have sought to harm invention marketing companies by harassing any and all attorneys that dare accept referrals from them. This pattern and practice has quite successfully scared all but a few brave attorneys from representing clients of invention marketing companies. You have targeted those attorneys who are willing to represent our clients, have stolen their valuable time and attention away from the inventors with your harassment campaign, and have sought to bend and misconstrue attorney ethical principles in order to neutralize them. In part, this harassment has taken the form of issuing “Requirements For Information” to patent attorneys, including endless interrogatories and document requests, and threatening them that non-compliance may result in discipline.
Recently, the Fourth Circuit Court of Appeals struck down your “Requirement For Information” harassment tactics as being part of a system having “an utter lack of procedural safeguards”. Goldstein v. Moatz, 364 F. 3d 205 (4th Cir. April 14, 2004). That suit was brought by a patent attorney who suffered harassment by the OED because he accepted client referrals from us. Now, through the proposed rulemaking, in part you seek to legitimize the very tactics that the Court of Appeals found so objectionable.

So for decades, while you have sacrificed the supply of patent attorneys to marketing company clients, you have simultaneously complained that those attorneys who do accept marketing company clients handle so many cases that they become a “yes man” for the company that refers the clients. Your considerations about how such arrangements might be harmful to the interests of the inventor are strictly theoretical, are based upon “worst case” scenarios, and show a real lack of insight into the realities of the both the attorney-client relationship and the workings of today’s marketing companies. In light of the OED’s scare tactics, however, what choice does any marketing company have, but to refer all of their clients to a few, and sometimes even just one brave patent attorney? What company would willingly rely upon a “single source” for any needed resource? Obviously, if more attorneys were willing, the clients would be more naturally distributed among the patent bar. The fact that more attorneys are not willing to represent our clients, can only be blamed on the OED’s scare tactics that have turned our clients into “untouchables” to the patent bar.

In the past, you have sought ways to construe the age-old attorney ethical rules to say what you want them to say: that they prohibit marketing company referrals. Now, you have scrapped that approach in favor of rewriting the very principles of attorney ethics in your proposed “rules of conduct” to serve your purposes of regulating marketing companies indirectly.

Your proposed regulations do not create meaningful guidelines for attorneys. Instead, they lay a field of landmines that is impossible for even the most diligent patent attorney to traverse. Your rules seemingly prevent any conceivable way by which a marketing company might seek to protect their client’s intellectual property interests through the use of skilled patent counsel. The commentary that accompanies the proposed rules even suggests that a mere recommendation of a patent practitioner by a marketing company employee could be construed as a prohibited “in person solicitation”, and result in misconduct by any patent attorney that accepts such a recommendation. The bottom line is, the proposed rules make it so that few if any patent attorneys would ever want to “get involved” with any client who has also contracted with a marketing company for assistance. Accordingly, under the proposed rules, once an inventor has contracted with a marketing company, he or she enters a class of individuals less likely to receive the assistance of counsel!

Your approach: applying decades of your own thoughts about potential problems that might arise during representation of a marketing client, and then carving out specific exceptions and conduct by attorneys representing such clients – simply ignores the big picture! Such rules might prevent some potential, minor harm in certain circumstances. It is inevitable, however, that these rules primarily serve to make legal counsel less available for a whole class of inventors. Quite clearly, your purpose is to further limit the access of marketing clients to the patent bar. Even beyond the particulars of your proposed regulations, you should question whether this “purpose” is even in the best interests of inventors. Do you truly believe it is better to deny inventors access to counsel than to possibly expose them to some tenuous, theoretical harm?

We urge you to reconsider you tactics, and whether it is truly in the best interest of the inventor to deny them access to counsel. You should question whether it is prudent to tamper with principles of attorney ethics to fulfill your political agenda. You should put aside your opinions and notions of theoretical harm and recognize that in fact you are causing actual harm to countless inventors by limiting and perhaps even denying them access to patent counsel.
There is no question that since these rules are of at least questionable legality and constitutionality, inter alia, the proposed rules violate due process, equal protection, and even constitute a prior restraint on free speech. Inevitably they will be tested in Federal court and struck down at least in part. The question is, however, in the meantime how many inventors will be blocked from receiving the assistance of patent counsel, through the chilling effect of these rules.