That’s the warning issued by a patent litigator in Maryland. The gist of his arguments:
- Americans do not enjoy the same protections overseas. Sending patent work off shore opens Americans up to risks they might not otherwise encounter (e.g. risk of espionage by foreign governments ; risk of theft and lack of proper law enforcement overseas to address criminal behavior.)
- Transmitting data to enable an LPO to draft a patent application in India might violate export controls at the Department of Commerce
- The U.S. Government does surveillance of international telecommunications. The NSA monitors calls made outside of the United States
There is certainly some validity to the author’s arguments. Transmitting data or speaking internationally on the phone does open up a company to surveillance by the U.S. and by foreign governments. But is the risk any greater than the risks already posed by common business practice?
Many companies have international operations and engage daily in conversations that concern trade secrets. In other words, companies are already subjecting themselves to this in a business context. How else could international business get done if multi-national corporations could only protect data by preventing employees from discussing confidential information across borders. Discussions and electronic transmissions that concern IP are no different.
In other words, if you are going to oppose the practice of having LPOs in India draft patent applications, then you better be prepared to stop all strategic business communications between employees in the U.S. and in India.
With respect to export controls, it is certainly important for a company to determine whether a technology falls under one of the categories of technology that are not allowed to be exported. But that is simply a matter of making sure that checking the controls is part of the due diligence process before work is outsourced.